via The Art Newspaper:
Response to lawsuit by French photographer Patrick Cariou claims images not “strikingly original”
Posted online: 8.4.09 | From Issue 201 (April 2009)
NEW YORK. Lawyers for Richard Prince and his dealer Larry Gagosian have responded to a copyright-infringement lawsuit filed by French photographer Patrick Cariou, vigorously arguing that Prince’s appropriation of Cariou’s photographs of Rastafarians for a recent series of paintings is protected under the US doctrine of “fair use”.
The suit, filed in New York after Gagosian displayed the paintings in a show titled “Canal Zone” (8 November-20 December 2008), alleges that the defendants made unauthorised use of images from Cariou’s 2000 book Yes Rasta, an ethnographic survey of Rastafarian culture that the photographer assembled during a decade of research in the mountains of Jamaica. The Rizzoli publishing house, which co-produced the “Canal Zone” catalogue and was also named in the suit, filed a response denying that it distributes the book and claiming indemnity.
Cariou’s lawsuit is seeking unspecified damages as well as the “impounding, destruction, or other disposition” of all 22 paintings in the series—which combines the Rastafarian images with pornography and expressionistic brushwork—as well as all unsold catalogues and preparatory materials. In their answer to Cariou’s suit, Gagosian’s lawyers assert that Prince’s incorporation of the photographs is allowable under fair use, which permits the limited reproduction of copyright material for creative purposes. “Cariou’s copyrighted works,” the response states, “are factually based in that they are real-life photographs of Rastafarians as they appear in their native environments, whereas the works of art by Prince utilise small portions of the photographs, together with other images and media, to create a new and unique work which comments upon certain aspects of culture.” Gagosian’s filing further claims that “the creation and exhibition of Prince’s works was not commercially exploitative, was justified with a genuine creative rationale, and was done without bad faith”.
In his response, Prince, a renowned appropriation artist who frequently uses others’ imagery in his work, argued that the photographs in Yes Rasta are not “‘strikingly original’ or ‘distinctive’ in nature”, and that his “transformative” uses of the photographs were “done in good faith and reflect established artistic practices”. Prince’s answer furthermore stated that his appropriation, which he claims is sanctioned under fair use, “poses no harm to the value of such photographs and any market value relating to the photographs has… been enhanced rather than decreased”. Lawyers for Prince and Rizzoli declined to comment, and Gagosian’s representation did not return phone calls. Prince was sued in the 1980s for copyright infringement related to another photographer’s work; the lawsuit, lodged by Garry Gross, was reportedly settled out of court.
In a telephone conversation, Cariou, who is based in Paris, bridled at the claim that Prince only used a small portion of his Yes Rasta photographs. “In my lawyer’s opinion and others’ opinion, this case goes way beyond fair use,” he said. “They used 30 pictures of mine. If you’ve seen the ‘Canal Zone’ book, it starts with Rasta, it ends with Rasta—it is the centrality of it, there is no question.” According to Cariou, the suit has now advanced to the discovery phase, during which his lawyer will try to ascertain how much money the defendants earned from the paintings, among other matters. Gagosian’s filing states that eight paintings from the series were sold, and Cariou says they were priced between $1.5m and $3m each. To Cariou, the defendants’ response has been “extremely arrogant”, particularly the claim that his work is not distinctive or original.
“I laughed,” he said. “I could be a really bad photographer, but in that case why did you use 30 of my pictures?” Cariou says that he has already received a “settlement proposal” that he would consider for a “just” amount. “But it’s a big number we’re talking about,” he says.