FAIR-USE WARS: The Andy Warhol Foundation for the Visual Arts announced that it has filed an amicus brief in New York urging a federal appeals court to overturn a lower court ruling that found that artist Richard Prince’s “Canal Zone” series of appropriated photographs infringed upon the copyright protection of the original photographer, Patrick Cariou.
The brief alleges that the District Court used too narrow a standard of fair use doctrine, which thereby infringes on the free speech and expression rights guaranteed by the First Amendment. The Warhol Foundation acknowledges that it owns valuable copyrights, but also notes that copyright protection should be balanced against the rights of artists to create new art referencing previous work. See the press release from the Warhol Foundation below (emphasis ARTINFO):
The Andy Warhol Foundation for the Visual Arts has filed a brief in New York urging a federal appeals court to reverse a lower court’s ruling that thirty paintings by the artist Richard Prince infringe copyrights in photographs owned by Patrick Cariou. The lower court’s ruling led to the seizure of Prince’s work and subjects it to potential destruction. The Foundation is being represented by attorneys from Stanford Law School’s Fair Use Project, New York City attorney Virginia Rutledge, and Bingham McCutchen LLP.
Prince’s paintings are part of his Canal Zone series, and include images of Rastafarians found in Cariou’s book Yes, Rasta.
In a ruling issued last March, U.S. District Judge Deborah A. Batts held Prince liable for infringement, concluding that his appropriation of images from Cariou’s photographs was not protected by the “fair use doctrine,” a legal principle that is designed to balance copyright protections with rights of artistic expression. Michael Straus, the Warhol Foundation’s Chair, said “the position of the Foundation is that the District Court gravely misconstrued that doctrine and in so doing not only jeopardized the status of existing works by a range of artists but also created such uncertainty in the field as to cause a chilling effect on the creation of new works.” Among other things, as the Warhol Foundation explains in its brief, the appropriation of images to create new works is part of an important artistic tradition that goes back to Pablo Picasso, Marcel Duchamp, and notably includes Andy Warhol’s own use of photographic and other images in his works.
“The Warhol Foundation’s primary mission is to advance the visual arts,” explained Joel Wachs, the Warhol Foundation’s President. “The Foundation encourages creativity over a wide range of artistic expression and therefore does not object to other artists building upon Andy Warhol’s work. At the same time the Foundation owns valuable copyrights in those works that provide substantial revenue for the Foundation’s grant making and other activities. In its own decisions the Foundation balances the need to provide strong copyright protection with the need to protect the right to create new art. We think the District Court failed to understand that balance and therefore urge the Court of Appeals both to reverse that decision and to set forth guidelines that will promote rather than undermine creativity in the arts.”
“The fair use doctrine is the most important tool courts have to ensure that copyright does not choke the creativity it is supposed to foster,” said Anthony T. Falzone, Executive Director of the Fair Use Project and counsel for the Foundation. “Artists should not have to hire a lawyer to make art, and we’re suggesting an approach that provides clearer protection for the free expression interests of artists and the public.”
The full brief can be read here.