Cariou v Prince: a question of Rastafarians and fair use

This week the US Court of Appeals for the 2nd Circuit decided that use of certain photographs in a new piece of art did not necessarily infringe copyright in the photographs as the use could be transformative and therefore fair.

The claim was bought by Cariou, a professional photographer who, over the course of six years in the mid-1990s, lived and worked among Rastafarians in Jamaica. The relationships that Cariou developed with the Rastafarians allowed him to take a series of photographs that Cariou published in 2000 in a book titled Yes Rasta.

Richard Prince, an "appropriation" artist (the Tate Gallery has defined appropriation art as "the more or less direct taking over into a work of art a real object or even an existing work of art."), first came across a copy of Yes Rasta in a book shop in St Barth's in 2005. Between December 2007 and February 2008, Prince had a show at the Eden Rock hotel in St. Barth’s that included a collage comprising 35 photographs torn out of Yes Rasta and pinned to a piece of plywood. Prince altered the photographs significantly, by painting “lozenges” over their subjects’ faces and using only parts of some of the images. In June 2008, Prince went on to buy another three copies of Yes Rasta and to create thirty additional works of art in a similar vein.

Understandably Cariou was none to pleased and the question of whether Prince infringed copyright in the photographs has been bouncing around the US courts since 2011. The question was whether Prince's use of the photographs was fair use, and in particular whether it was transformative. The Court of Appeals has now held that it can be, saying:

"Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative."

The court found that the five other works were so minimally altered by Prince that they might not be considered fair use by a "reasonable observer". Those were sent back to the lower court for a determination using the appeals court standard for transformative use.

This case is likely to provoke strong views on whether it should be permissible to use part of a photograph in a piece of art without the photographer's consent, even if part of the photo is modified. The real criticism of this case however is that it does not provide much clarity on the murky concept of "transformative use".

The full decision is available here.