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Is it Fair Use?

Mountain View

Copyright laws were created to help creators borrow, use, and build upon the ideas of other creators. The fair use doctrine, codified in the Copyright Act of 1976 was designed to help resolve disputes regarding transformative use, that is, does the new work truly change the meaning of the original work? If it does not change the meaning, then it is not fair to use it.

The photograph above, on the left was taken by Patrick Cariou, a photojournalist who lived among the Rastafarians for six years. In 2000, his work was published in a book called, Yes, Rasta and sales were small, totaling around $8,000.00. Seven years later, the photograph on the right was taken from Cariou’s book by an artist named Richard Prince. He modified the original by adding three purple blobs and a guitar. It sold for roughly $2,000,000.00.

Prince took a total of five photographs from Cariou's book, created something like 30 paintings with them, and earned a whopping 10 million dollars in sales. Cariou did not get a penny. Cariou sued Prince for copyright infringement. Initially, a judge found Prince had violated copyright law and he was ordered to destroy most of the artwork. This summary judgment was largely a result of how Prince testified in court. He stated that he did not "really have a message" in his art.

In 2013, Prince countersued and won. This time Prince was armed with new meaningful explanations about his artwork, probably something about it being a commentary on mass media, etc.... Prince did not have to destroy his paintings, give credit to the original, or get permission from the copyright owner of the photographs. The new ruling probably had much to do with Prince revising his original answer to the question, “What does it mean?”

In March 2014, the appeals court ruled that 5 of the 30 works created by Prince were in violation of copyright law even under consideration of the fair use doctrine. The 25 pieces that made it past the judges were deemed to contain “an entirely different aesthetic” from Cariou’s photographs. Prince paid Cariou an undisclosed amount. Five of his works were sent to a lower court for a determination on fair use.

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