On Thursday, the Second Circuit Court of Appeals overturned a trial court’s decision, ruling that an artist’s uses of 25 copyrighted photographs were sufficiently transformative to be protected by copyright’s fair use defense. The court was uncertain, however, whether the artist’s uses of five other photographs should be considered adequately transformative to trigger the defense. The court’s opinion, Cariou v. Prince, is available here.
The artist, Richard Prince, had copied the work of photographer Patrick Cariou, who had taken the photographs over a six-year period in Jamaica. Cariou had published the collection in a book, “Yes Rasta,” in 2000.
Prince used 30 photos from Cariou’s book in creating “Canal Zone,” a series of large-scale works exhibited at galleries in St. Barth’s and New York City in 2007 and 2008. Prince’s modifications to the black-and-white photos varied, but included enlarging the images, adding acrylic paint, pasting on new elements, tinting them, and using them in collages. According to the court, some of Prince’s works exhibited at the galleries almost entirely obscure Cariou’s original photographs. In others, Cariou’s original images are still readily apparent.
The court found that 25 of Prince’s works “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. Cariou’s black-and-white photographs were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs.
The court cautioned, however, that not all “cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative.” As an example, the court cited its 1998 ruling that a book providing synopses of Seinfeld television episodes infringed the original shows’ copyrights, since the book simply repackaged the episodes’ content in a new form.
The appellate court was uncertain whether Prince’s modifications were merely cosmetic for five of the thirty works. The court remanded the case to the trial court to determine whether those “relatively minimal alterations” were sufficiently transformative to be deemed fair uses of Cariou’s photographs.
Here’s a clip from last week’s phone-in seminar with Anita Fore, Authors Guild Director of Legal Services, on the basics of understanding and negotiating contracts with both traditional book publishers and stand-alone ebook/POD publishers. The clip (about 15 minutes) focuses on traditional book contracts:
Members are welcome to contact us for a link to the full-length audio of the 60-minute seminar and a handout that accompanies Anita’s talk. (Not a member? Join up! You must be a published author to join, but many self-published authors now qualify for membership.)
The Guild is hosting additional phone-in seminars for members this week and next:
Magazine Contract Issues (Wednesday, April 24th)
Anita Fore will discuss several clauses freelancers should be aware of when negotiating magazine agreements. Sign up here.
Authors’ Statutory Right to Terminate Publishing Contracts After 35 Years (Wednesday, May 1st)
Paul Aiken, Authors Guild Executive Director, will explain the rules governing publishing contract terminations under Section 203 of the Copyright Act. Sign up here.
Amazon’s garden walls are about to grow much higher. In a truly devastating act of vertical integration, Amazon is buying Goodreads, its only sizable competitor for reader reviews and a site known for the depth and breadth of its users’ book recommendations. Recommendations from like-minded readers appear to be the Holy Grail of online book marketing. By combining Goodreads’ recommendation database with Amazon’s own vast databases of readers’ purchase histories, Amazon’s control of online bookselling approaches the insurmountable.