In a post here back in April, we reported on the Second Circuit’s ruling in a fascinating fair use case involving the use of copyrighted photographs by appropriation artist Richard Prince, Cariou v. Prince. We observed that in assessing the “purpose and character” of Prince’s use the court had taken an exceptionally broad and subjective approach to the question of whether the accused works were “transformative uses.” We asked whether there was “a judicial double standard favoring artists that judges and their acquaintances either ‘get,’ or think they ought to ‘get,’ over those who appeal strictly to the hoi polloi?”
Cariou has now filed a petition for certiorari with the U.S. Supreme Court presenting that very question without the snark:
Whether the first statutory fair use factor, “the purpose and character of the [secondary] use,” requires consideration of the secondary user’s purpose (i.e., his or her justification for appropriating particular copyrighted materials), and not just of the secondary work’s expressive character, as perceived by judges employing their own personal aesthetic sensibilities.
Prince’s response to the petition, which is available here, frames the issue in starkly different terms:
Whether the Second Circuit’s fact-specific, interlocutory decision that twenty-five colored collages depicting rock stars and erotic imagery in a post-apocalyptic alternative reality made fair use of altered portions of black-and-white portraits of Rastafarians and Jamaican landscapes . . . .
The Supreme Court has not seriously addressed fair use in the nearly twenty years since it adopted the “transformative use” standard in Campbell v. Acuff-Rose Music, the “Pretty Woman” parody case. The betting here is that the Court will deem Cariou v. Prince an appropriate vehicle for revisiting the issue and perhaps putting the genie at least partially back in the bottle.
UPDATE 11/13/13: I lose. The Supreme Court denied the petition for cert.