Cariou v. Prince: The Battle For Fair Use

On August 27, 2013, a petition for a writ of certiorari was docketed by the U.S. Supreme Court in Cariou v. Prince, No. 13-261, to review the Second Circuit’s much-commented on decision, 714 F.3d 694 (2d Cir. 2013), which held that the defendants had, for the most part, made fair use of photographer Patrick Cariou’s copyrighted images, which were appropriated by noted artist Richard Prince in a series of paintings.

The Second Circuit majority found that most of the paintings had sufficiently “transformed” the source photographs to qualify as fair use. Five of the paintings were held not to have sufficiently transformed the photographs to enable the appellate court to decide, as a matter of law, whether those paintings infringed Cariou’s copyright, or, instead, were exempted by the fair use doctrine. Analysis of those paintings was remanded to the district court, which had held that none of the paintings was shielded by the fair use defense.

The petition for certiorari, which argues among other things that the Second Circuit’s “I know it when I see it approach” offers neither guidance nor predictability and abrogates various portions of the Copyright Act, has garnered amicus support.

You are invited to come hear Daniel J. Brooks, counsel for Patrick Cariou, speak about the case that is sure to change the fair use analysis — for better or worse.

Daniel J. Brooks is a partner in the New York office of Schnader Harrison Segal & Lewis LLP, and counsel for Patrick Cariou.

1 Hour of CLE Credit – Accreditation Pending (based on 60 minutes).