High-art dispute pushes the limits of fair use

2nd Circuit finds most remixes of artist's photography non-infringing

French photojournalist Patrick Cariou spent six years in the 1990s living among Rastafarians in Jamaica and documenting their lifestyle. Cariou’s work was compiled in a book titled “Yes Rasta,” a collection of black and white portraits. Powerhouse Books Inc., an independent press in New York, published the book in 2000, producing only 7,000 copies. All told, Cariou earned $8,000 for his work.

While “Yes Rasta” enjoyed only modest commercial success, the photos got a second life in the art world. But it wasn’t one that Cariou ever expected. Pop artist Richard Prince used Cariou’s photography in a series of works called “Canal Zone.” Prince printed Cariou’s photographs on huge canvases and modified them. In one piece, Prince superimposed a cut out of an electric guitar into the hands of a Rastafarian man. In others, Prince covered Cariou’s subjects’ eyes and mouths with bright circles of paint, or dotted the landscapes with images of naked women.

Eye of the Beholder

Under the Copyright Act of 1976, courts consider four factors to decide whether a work is fair use: the character of the later use; the nature of the copyright work; the amount of the copyright work used; and the effect of the use on the market for the copyright work.

Adele Nicholas

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