CAA News Today

Each week CAA News publishes summaries of eight articles, published around the web, that CAA members may find interesting and useful in their professional and creative lives.

Cariou v. Prince Decision

We conclude that the district court applied the incorrect standard to determine whether Richard Prince’s artworks make fair use of Patrick Cariou’s copyrighted photographs. We further conclude that all but five of Prince’s works do make fair use of Cariou’s copyrighted photographs. With regard to the remaining five Prince artworks, we remand to the district court to consider, in the first instance, whether Prince is entitled to a fair-use defense. (Read more from the US Court of Appeals for the Second Circuit.)

Appropriate Standards in Appropriation Art? Cariou v. Prince Decision Garners Relief but Fails to Provide Substantive Guidance

One of the most closely watched copyright cases in the legal and contemporary-art worlds was settled last week. On Thursday, April 25, the United States Court of Appeals for the Second Circuit overturned the 2011 District Court decision, holding that the contemporary artist Richard Prince’s appropriation of thirty images from the photographer Patrick Cariou’s book Yes Rasta for his own Canal Zone series was protected under the fair-use doctrine. (Read more from the Center for Art Law.)

Second Circuit Victory for Richard Prince and Appropriation Art

The decision in Cariou v. Prince confirms the principle that a use can be fair even if it doesn’t criticize or comment on the original work. While it’s far from groundbreaking to say that commentary or criticism isn’t necessary for fair use, it is a principle that hasn’t been applied before in the visual-art context. (Read more from the Center for Internet and Society, Stanford Law School.)

Judicial Activism and the Return of Modernism in the Cariou v. Prince Decision

The Cariou v. Prince decision was handed down last Thursday. I have struggled with what to write primarily because I have been shocked into a catatonic state. How two intelligent minds could draft such an epic disaster is beyond any form of comprehension. One would hope that after eleven months of deliberation and critical analysis we would have been given something more than twenty-three pages of judicial poetry. (Read more at Clancco.)

A More Positive Take

You may remember the fantastic piece on art and copyright by the artist and lawyer Alfred Steiner that I linked to couple months ago. I asked him what he thought about the Second Circuit’s decision in Cariou v. Prince, and this is what he had to say. (Read more in the Art Law Blog.)

House Judiciary Chairman to Launch Sweeping Review of US Copyright Law

House Judiciary Chairman Bob Goodlatte (R-Virginia) said last week that his committee will launch a sweeping review of the country’s copyright law and hold a series of hearings on the matter “in the months ahead.” In remarks at the Library of Congress, Goodlatte argued that existing copyright law lags behind the rapid pace of technology, forcing policymakers to make challenging decisions based on these outdated rules. (Read more in the Hill.)

UK Museums Must Pay for Images Where Copyright Is Unknown

Museums will have to pay upfront for orphan images, or images whose copyright owners cannot be found, after an amendment to the Enterprise and Regulatory Reform Bill to limit proposals was narrowly defeated in the House of Lords. Several members condemned the government’s plans, which require holders of orphan works to pay for copyright licensing on use, rather than when a rights holder steps forward. (Read more in the Art Newspaper.)

How Copyright Drives Innovation in Scholarly Publishing

Today’s public-policy debates frame copyright policy solely as a “trade off” between the benefits of incentivizing new works and the social deadweight losses imposed by the access restrictions imposed by these (temporary) “monopolies.” I recently wrote and published a paper, “How Copyright Drives Innovation in Scholarly Publishing,” explaining that this is a fundamental mistake that has distorted the policy debates about scholarly publishing. (Read more from the Copyright Alliance.)

In Sobel v. Eggleston, Limited Edition Is No Limit to Subsequent Editions

It took less than a year for Judge Deborah A. Batts to rule in Sobel v. Eggleston, dismissing the plaintiff Jonathan Sobel’s claims with prejudice. In summary, Sobel purchased eight of the defendant William Eggleston’s photographs between 2008 and 2011. The plaintiff’s belief that the works were part of limited editions supposedly led him to pay a premium for them. Eggleston, however, created reprints of these images different in size, medium, and production date from the set purchased by the plaintiff. Subsequently, according to Sobel, the monetary value of the original limited edition was “substantially diminished.” (Read more from the Center for Art Law.)