Photos in paintings can be fair use

Patrick Cariou’s photo (left) was used without permission in Richard Prince’s artwork (right)

Photos can be used in paintings without permission if the new expression is sufficiently transformative. So says the United States Court of Appeals for the Second Circuit in a closely watched art case.

Appropriation artist Richard Prince painted photos by photographer Patrick Cariou and used them in a collage without permission. 25 of Prince’s 30 works were ruled as fair use, with the remaining remanded to a lower court for review.

“[the] artworks manifest an entirely different aesthetic from [the] photographs. … [the] composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of [the] work.”
— Cariou v Prince, 2013

“What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.”
— Cariou v Prince, 2013

As for the five remaining images:

“Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portrature and landscape photos, we can not say with certainty at this point whether those artworks present a ‘new expression, meaning, or message.’”
— Cariou v Prince, 2013

Expression is key to transformation

“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.”
— Cariou v Prince, 2013

Sources: Hollywood Reporter, NYT Times. Image credit: .