A turning point: Cariou v. Prince
Cariou v. Prince
, decided in 2013, truly shook up the existing framework for fair use. Artist ’s
seemingly modest alterations to photographer Patrick Cariou’s images of rastafarians in the Jamaican mountains were excused as fair use. Prince had been sued by Cariou after the famous appropriation artist repurposed a number of Cariou’s photographs, including simply enlarging Cariou’s pieces on canvas and adding some paint strokes or imagery. Many of Prince’s works regurgitated the images themselves as the focus of the pieces, not as ancillary or background imagery.
But the appellate court ruled in Prince’s favor. The decision noted that “the law imposes no requirement that a work comment on the original or its author in order to be considered transformative” and that even though some of the works exhibited only modest differences from the originals, most of Prince’s “artworks manifest an entirely different aesthetic from Cariou's photographs.” This ruling came in spite of the fact that Prince testified that he “[didn’t] really have a message” and that he was not “trying to create anything with a new meaning or a new message.”
The opinion focused on the court’s—arguably subjective—perspective “examin[ing] how the artworks may ‘reasonably be perceived’ in order to assess their transformative nature.” In other words, the decision was based on the premise that a reasonable person would consider Prince’s pieces distinct in a way that adds something “new” or unique to the originals. After the opinion, critics noted that it could open the floodgates for appropriation in visual art.
Notably, it is another Prince case that is now working its way through the courts that threatens to push back on the Cariou precedent. This past July, a New York trial court made a preliminary ruling that Prince’s appropriation of another photographer’s Instagram post “[did] not make any substantial aesthetic alterations”—potentially indicating that there is a threshold of physical transformation that must be met to impart “transformative” character as a matter of law.
Visual artists continue to be integral components of the evolving conversation around fair use. Their voices and work exist in a culture that increasingly normalizes appropriation, particularly on the internet. If—even after reading this—you’re still exactly not sure what constitutes fair use, you're in good company. Courts themselves have struggled to come to a consensus around what exactly qualifies as transformative use, and the current “know it when you see it” stancegives little in the way of direction to artists who endeavor to stay on the right side of the law.