Cariou v. Prince (copyright law)

The US District Court of Appeals for the Second Circuit handed down a decision on Cariou v. Prince on April 25, 2013. It was an copyright case about visual art that's important for fanedits too.

Cariou was a photographer. Prince was a collage artist who used a lot of Cariou's photos in his collages and sold them for $10 million bucks. The court looked at 30 collages and decided 25 were fair use because they were transformative. They changed the originals into something new and different.

One of the originals on the left and one of the 5 that the court wasn't sure about on the right



But this one, the court was confident that it was transformative. Go figure.



So the bottom line for faneditors is a transformative work can be fair use. What is transformative is the big question. The court had these quotes

to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.”

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and

original must be employed “in the creation of new information, new aesthetics, new insights and understandings”

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and the longest explanation,

Here, looking at the artworks and the photographs side-by-side, we conclude that Prince’s images, except for those we discuss separately below, have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s. Our conclusion should not be taken to suggest, however, that any cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative. For instance, a derivative work that merely presents the same material but in a new form, such as a book of synopses of televisions shows, is not transformative. In twenty-five of his artworks, Prince has not presented the same material as Cariou in a different manner, but instead has “add[ed] something new” and presented images with a fundamentally different aesthetic.

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So the lawyers are saying this makes the grey area in copyright law bigger, makes more uncertainty, more freedom for artists, more business for lawyers. And I think a lot of fanedits are on firmer legal ground now than ever before.

Also: $10 million bucks? WTF??

Fascinating. Thanks for this.

$10 million? Shit I need to start making collages.

Thanks for posting this. Very important and interesting. Based on the language you provided in these rulings, it seems like fanedits still lie in a shady gray area, but it does increase the level of legal "uncertainty." In other words, why would a company ever try suing a faneditor when winning is so uncertain and damages are small? They wouldn't. Definitely good news for us.

based on the above, i'll start hawking crouching dragon to collectors for, oh, at least $10M. it'll be transformative for my bank account.

i kid, i kid!