Fair use decision: remixing is legal even when there is no intent to comment or parody original work

A Second Circuit Appeals Court judge has handed down a landmark fair use decision in Cariou v. Prince. Prince, a collagist, remixed some of Cariou's photos and sold them for large sums. Cariou argued that the new works were not fair because Prince did not create his collages as a comment on the original (one of the factors judges can consider in fair use cases is whether the new work is a commentary or parody). The lower court agreed, and ordered destruction of the show catalogs and a ban on hanging the new works. But the appeals court overturned, and held that a use can be fair even when it doesn't comment on the original.

"We conclude that the district court applied the incorrect standard to determine whether Prince's artworks make fair use of Cariou's copyrighted photographs," writes Judge B.D. Parker in the decision, which was released this morning. "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 the case to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense."

"This decision absolutely clarifies that the law does not require that a new work of art comment on any of its source material to qualify as fair use," attorney Virginia Rutledge told A.i.A. by phone this morning after a preliminary survey of the decision.

"This is a major win for Prince on at least two counts," NYU art law professor Amy Adler told A.i.A. via e-mail. (She consulted on the case but was speaking for herself.) "The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince's testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work."

Richard Prince Wins Major Victory in Landmark Copyright Suit [Brian Boucher/Art in America]

(Thanks, Tim!)


  1. may I draw your attention to ‘The Infringement: A Comedy in One (dmc)Act’, on vimeo, which in 2002 sampled from an online copy of an as-yet-unreleased hollywood film, used the sample in the story line, and went online the same day as the film sampled from,  Blade 2, came out in cinemas… fair use before it was deemed fair.
    (with a cameo from recently released Wesley Snipes, come on gang, let’s re-start that career!)

    1.  It was settled out of court at the judge’s urging. Although, the judge did say that if the claim was litigated, AP would win. So yes, this does contradict that. Welcome to the legal system.

  2. Didn’t realize this was a new thing.  Roy Lichtenstein’s entire career is based on nothing more transformative than enlarging the original work and changing the medium.

      1.  Weird Al gets permissions rather than relying on fair use, even though much of what he does *would* qualify under the parody clause.

        1.  Most of the time. He didn’t get permission for his brilliant Gangsta’s Paradise takeoff (or should I say ripoff).

          1. He actually believed at the time that he had permission from Coolio.  This is documented in several places (Wikipedia amongst them) if you want to read the details.

  3. Hate to say it, but this seems to be a serious overcorrection. There *is* such a thing as a “derivative work”, and this appears to be a classic example of one.

    I have no objection to saying the derivative artist can produce and display his works. When it comes to selling them or publishing them, however, I think he owes a substantial share of his profitsto the creator of the work he derived from, if it’s still under copyright.

    If you don’t like that, base your work on free sources.

    1. I agree. I’m all for fair use, but this seems to be creating a derivative work and then reaping huge profits from it. Isn’t that what the copyright law is designed to prevent? If he had used a picture of Mickey Mouse, I’m pretty sure he would be doing time in a hard labor camp by now.

  4. I think there’s fair use and then there’s being a dick.  When Prince sells his painting for ten million bucks he should probably consider flipping some of it back to the original image maker.  Appropriation becomes something else when the appropriator is more famous than the original image creator.  But I guess that’s specifically what this case was about…

    1. That would be funny if Richard Prince didn’t actually get big sums for his work. Which he does. The art world is indeed stupid, buy not in the way you are suggesting.

  5. Why is no one here asking what the five works that did not clear the hurdle have in common? This would seem to be the nut of the question.

  6. I wonder how we’ll all feel if large corporations use this decision to openly steal artists’ work and make millions off it… and the artists have no legal recourse whatsoever. The stealing happens now (e.g. Urban Outfitters), but at least there has been some remedy at law available, thus far.

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