Last Friday April 26, United States Court of Appeals for the 2nd Circuit( NY,NJ Conn.Vermont) published a decision in a Photography plagiarism case that will have far reaching consequences for any photographer who places their work online and extended the "fair use" doctrine (created by this same court in the case of Roy Orbison vs. 2Live Crew sampling case) exponentially. The case involves the photographer Patrick Cariou who published a copyrighted book of candid and portrait and landscape photographs detailing the Rasta lifestyle. "The Artist Edward Prince" took Mr Cariou's photographs and enlarged / collaged painted over them to make a major installation / show( he sold $10 million at and immediately after the showing) with no attribution or credit for their creator(of course no permission either). Mr Cariou won at Federal trial Court and was awarded monetary damages as well as the right to destroy any non purchased piece. 2nd Circuit totally reversed this decision Amicus briefs were filed on behalf of Edward Prince by the Metropolitan Museum of Art, Museum Of Modern Art, Guggenheim, every big$$$$ Gallery etc. My reading of this decision kind of indicates that the justices were outraged at a remedy that involved the public destruction of artwork and that is what most of the Amicus briefs and comments dealt with; however usually disatisfaction with a remedy usually results in the case being returned to the trial judge for reconsideration but in this matter it did not. How did this decision change the law??? In the past Fair use dealt with the trans-formative nature of the use like criticism, scholarship, or commentary; in this matter the Court defined trans-formative as actually transforming the original (the court did send back 5 of the Richard Prince works to the trial Court for reconsideration). The legal scholars were looking to this case to clarify the issues and instead the court clouded this issue more than ever; Would it be trans-formative for an add agency to take your photograph and place a business logo and slogan for advertizing with no attribution or pay???
