PDN - May 2012

PDNEWS

JN: our motive is [advancing our] campaigns. sometimes we give away very good pictures for free to get [them] published. working with an agency, we get wound up with their rights and contracts, and there are often clashes.

PDN: So what’s your rights arrangement with
photographers?

JN: we have a kind of shared rights: greenpeace can
do anything they want with the pictures, within rea-
son, and photographers can do anything they want
with the pictures. we don’t have good resources to
distribute photographers’ pictures, but it’s to our ad-
vantages that they publish their pictures. Also, publi-
cations like National Geographic would never touch a
greenpeace picture, but they might take it from the
photographer.

PDN: How much do you pay for photo assignments? JN: we pay a very competitive daily rate. it’s a business arrangement. we want to get as much out of the photographers we hire as National Geographic or

The New York Times does.

PDN: What are your ambitions for photography at
Greenpeace going forward?

JN: everything is more web based, so we’ve been doing a lot of work that combines photography, video and audio.

PDN: Do you expect photographers you hire to have
multimedia skills?

JN: it’s advisable. i encourage photographers to take training in those areas. greenpeace can’t stay behind.

cariou calls prince’s claim that the paintings satirize his photographs a “revisionist argument” brought up to re-try the case in the appeals court. (Appeals are intended to determine if the lower court erred, not consider new arguments.) cariou also says the onus is on infringers to state the purpose of their work and defend it, not leave it to courts to determine what might be “reasonably perceived” without regard to what the artist says about the intent.

A critical part of prince’s argument is that infringing work does not have to comment on or criticize the original work in order to constitute fair use. under statute and case law, he says, infringing work is protected by fair use if it “adds something new,” with a different purpose, expression, meaning or message from the original work.

if the appeals court accepts that argument, appropriation artists would effectively gain more legal “breathing room” for what they do. prince’s supporters—most notably the Andy warhol foundation, which filed a friend of the court brief in the case—argue that affirmation of the lower court ruling would have a chilling effect on artists. But a reversal, they say, would be a victory for free speech, and would benefit society by protecting the free flow of art and ideas that copyright was designed to foster, and that technology now enables.

But cariou and his supporters use the same precedent cases to argue that infring-
ing works must comment on or criticize the original works in some way to qualify
as fair use. the law says, for instance, that fair use is “for purposes such as criticism,
comment, news reporting, teaching, scholarship or research.”
A narrow reading of the law, they assert, gives artists incentive to create new
works (for the benefit of society) by protecting copyrights from unauthorized use.

“taking copyright work in order to create ‘something new’ has no practical
boundary and would effectively eviscerate the rights of copyright owners,” cariou
argues in response to the prince appeal, echoing the lower court decision in his favor.
he adds, “randomly taking copyright works without justification, for use in second-
ary works that do not convey a message relating to the original,” doesn’t satisfy the
legal test for fair use.
the dueling arguments effectively pit the interests of photographers against the
interests of appropriation artists since photographs lend themselves more easily to
use as raw material by appropriation artists. so photographers have much to lose—
and appropriation artists much to gain—if cariou v. prince is overturned on appeal.
the appeal rides on other issues, too, such as how much prince’s work interfered
with the market for cariou’s photographs.
the big question, though, is whether or not the lower court erred in concluding
that prince’s work didn’t pass the fair use test because it
didn’t comment on or criticize cariou’s work in some way.
it’s a difficult legal question that the appeals court could
sidestep completely. however, if the court chooses to ad-
dress the question, its decision may have far-reaching im-
plications not only for photographers, but also for everyone
who embraces the re-mix esthetic of digital culture, and
appropriates content without permission.

IN CARIOU V. PRINCE,
AN APPEAL TO CLARIFY
A CRITICAL FAIR USE
BOUNDARY

The question is whether it is enough for infringing works to have a distinct meaning from the original works in order to be fair use— or whether they must also comment on or criticize the original work in some way. The outcome has important implications for photographers and the growing re-mix culture. By David Walker

A mAjor copyright cAse working its wAy through A federAl AppeAls court
in new york pits a photographer against a well-known appropriation artist, and
photographers have a lot riding on the case.
the fight is partly over how courts should interpret fair use, and whether it is le-
gal to repurpose copyrighted works for new works that are “distinct” from the origi-
nal work, even if they don’t comment on, criticize or in some way refer to the original
work. the outcome has practical implications in this age of re-mix culture: just how
far can appropriation artists go in re-using the works of others without permission?
the case is patrick cariou v. richard prince. prince admitted copying 41 images of
rastafarians from cariou’s book Yes Rasta and using them without permission for a
series of paintings and collages called “canal Zone.” prince’s gallery, gagosian in new
york city, exhibited the paintings and sold a number of them for a total of $10.4 million.
cariou, a french photographer, won a copyright infringement claim against
prince last year when a federal trial court rejected prince’s argument that appropria-
tion art is inherently fair use, even if it doesn’t comment in any way on the original
works. prince had said his intent wasn’t to comment on cariou’s photographs; he
was simply using them as “raw material” for his own works.
the court said in its ruling last march, “if an infringement of copyrightable ex-
pression could be justified as fair use solely on the basis of the infringer’s claim to a
higher or different artistic use … there would be no practicable boundary to the fair
use defense.”
prince is now appealing his case, and claims his post-apocalyptical collaged paint-
ings “may be reasonably perceived as satirizing” cariou’s reverential portraits after
all. At the same time, he argues that courts should not rely on what artists say the
purpose of their work is in determining fair use. the rea-
son is because the work can mean many things to different
viewers. so the standard for fair use, he goes on to say, is
whether the new work fills a different market niche “and
can reasonably be perceived to make an artistic statement
distinct from the original work.”
his “canal Zone” work satisfies those criteria because it is
so different in meaning from cariou’s work, prince asserts.