The Richard Prince copyright case is in the news again, though probably more than it deserves. Patrick Cariou, whose photographs Prince was found this spring to have infringed, moved to dismiss Prince’s appeal arguing that the injunction concerning the impoundment and destruction of the existing works (Prince was ordered to deliver them for destruction) was mooted by a stipulation between the parties. Thus, Cariou argued, there was nothing at the moment to appeal (i.e. Prince appealed to soon).
Dismissal of an appeal, as opposed to resolution on its merits, is rare but would (incorrectly) have been seen as a harsh rebuke to Prince. Incorrect because it would have related only to the order in which the questions on appeal are considered. In denying Cariou’s motion on procedural grounds, however, the Second Circuit Court of Appeals is not signaling anything about its view of the case.
The bottom line is that this development has little or no effect on the substantive question of infringement that the Court of Appeals will be called on to review in the coming months.
