Patrick Cariou spent many years living in Rastafarian communities, immersing himself in Rasta culture and snapping hundreds of photographs. He published his work in a book titled, "Yes, Rasta" in 2000.
Richard Prince probably spent a fraction of that time altering Cariou's photographs by painting over them with guitars and shapes. In 2008 he exhibited these new versions as part of his "Canal Zone" series at the Gagosian Gallery. The exhibit was a smash success. The Guardian reports that eight works sold for a total of more than $10 million, and "seven others have been exchanged for other works of art for between $6m and $8m."
Cariou was not impressed. The French photographer immediately took legal action against Prince and Gagosian Gallery for copyright infringement and conspiracy under the 1976 Copyright Act. Manhattan Federal Court Judge Deborah Batts handed down a judgment on March 19, 2011.
Batts granted summary judgment in favor of Cariou on the issue of copyright infringement. Prince admitted to using 41 of Cariou's images for "Canal Zone", but argued fair use as a defense. The Art Newspaper gives a good analysis of the four fair use elements and concludes, like Batts, that there is no defense. In addition to using substantial portions of original works, Prince made little transformative use of the work and showed bad faith by making no effort to contact Cariou. Batts also found that there was a potential market for derivative-use licenses for these works.
Gagosian Gallery was also found directly liable for the infringement, in large part because of the significant financial benefit gained.
The conspiracy claim was dismissed...
The ruling on damages is yet to come, but Prince has been ordered to immediately destroy the works he has and to notify current and future owners that the works were not lawfully made and cannot be lawfully displayed.
However, both Prince and Gagosian still have time to appeal!
Is this consistent with recent fair use rulings? The "String of Puppies" case that featured Jeff Koons (Rogers v Koons, 1992) was cited, but quite a lot has happened since then. ArtInfo provides a good round-up of recent developments in the field, including Koons' latest, here.
Cariou tells ARTINFO, "To me Richard Prince is more of an art director than an artist. I think he's a good art director, and a great thief."