Did Richard Prince's Appropriation Harm Cariou Market?
May 23, 2012 10:43 AM Subscribe
Prince v. Cariou, Round 2: Money Talks
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Prince v. Cariou oral arguments were heard today by a three Judge panel of the 2nd Circuit Court of Appeals. In many ways, the future of appropriation art (and Google’s image search, possibly) rests on the outcome of this case. And if today’s arguments are any indication, neither side is going to go down without a fight.
On March 18, 2011, Manhattan Federal Judge Deborah Batts ruled against Richard Prince and the Gagosian Gallery, and in favor of Photographer Patrick Cariou. Ruling here (PDF)
No transformative element:
After noting Prince’s testimony that “he didn’t really have a message” and did not attempt to comment on any aspects of the original, the judge ruled that “there is vanishingly little, if any, transformative element.”
Destroy and hand over the work:
In her ruling, the judge demanded that all works and materials relating to Prince's "Canal Zone" be "deliver[ed] up for impounding, destruction, or other disposition, as Plaintiff determines," and that the defendants "notify in writing any current or future owners of the Paintings of whom they are or become aware that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed."
from today's oral arguments:
The liveliest moment in this morning's proceedings came when the panel asked Daniel J. Brooks, counsel for Cariou, whether the injunction to destroy the works was in the public interest.
"It seems like something that would appeal to the Huns or the Taliban," Judge Parker observed.
Brooks pointed out that his client's father was in the French Resistance and that he does not support destruction of any artwork, which is for him redolent of Nazi bookburning.
"The court," Josh Schiller of Boies, Schiller & Flexner, Prince's counsel, later observed, "did not invent the injunction."
The case also deals with whether Cariou's market was harmed by Prince's paintings. The judges seemed unsympathetic to Brooks's claims of a damaged market.
"Bringing up the market is a clear loser for you," Judge Parker said to Brooks, who confirmed that Cariou's prints sold for a few thousand Euro, while Prince's paintings sold for millions. "You sold to a totally different audience, you've admitted that not many of the books were sold, you sold them out of a warehouse in Dumbo, and that the book was out of print. Prince was selling to a wealthier crowd, and on this side of the river." The allusion to a more elevated marketplace in Manhattan brought laughs from the courtroom.
Of particular interest
was the filing of a Amicus Curiae Brief
by the Andy Warhol Foundation. Brief here (PDF)