Art Law Report

Prince Copyright Appeal: Warhol Foundation Makes the Case to Reverse Infringement Finding

Posted by Nicholas O'Donnell on December 8, 2011 at 6:24 AM

After several months of inactivity, the first brief is available in the Richard Prince appeal of the judgment against him and the Gagosian Gallery earlier this year for infringing on the works of Patrick Cariou. Prince’s arguments of “fair use” of Cariou’s photographs failed to persuade the District Court and the infringing works were ordered impounded, a harsh and unusual remedy.

Following Prince's and Gagosian's filing, two amicus curiae, or friends-of-the-court, have appeared in the appeal: the Association of Art Museum Directors, and the Andy Warhol Foundation for the Visual Arts, Inc.

The Warhol Foundation has now filed its brief, which makes a strong push to overturn the lower court’s decision that Prince was guilty of copyright infringement in his appropriative art. It urges a “balanced approach” to considering the fair use arguments of those incorporating copyrighted works, and stresses its own consideration of others’ use of Warhol-copyrighted art.

The Foundation makes its case on the First Amendment need for fair use analysis; as the brief says, fair use “must provide enough breathing space for artists to use the images that surround us to say something about the world, or to imagine a different one – even if some think it displeasing or depraved.” Drawing on Cubist and Dada examples, the Warhol Foundation’s brief raises the very specter discussed here when the decision came down: how would the 20th century of visual arts look under the Cariou v. Prince lens?

The brief is compelling and well-written, and steps perfectly into the role of an amicus: to argue about what the case means beyond its narrow contours, something that is often difficult for the parties themselves to do. Given the Warhol Foundation’s stewardship of works as popular as Andy Warhol’s, its inherent credibility on what interests should be balanced in considering fair use is also strong.

Cariou's opposition brief is due January 25, 2012.

Topics: Richard Prince, Rasta, Canal Zone, Patrick Cariou, Dada, Association of Art Museum Directors, Yes, Cubist, Copyright, Gagosian Gallery, intellectual property, Fair Use, Andy Warhol Foundation for the Visual Arts

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