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2nd Circuit: Like Beauty, Fair Use Is in the Eye of the Beholder

By Robyn Hagan Cain | Last updated on

It sounds like Shepard Fairey should have fought back.

During the 2008 election cycle, Fairey used a 2006 Associated Press photograph to create his Barack Obama “Hope” design. The AP sued Fairey, who initially claimed fair use. He later settled the matter out of court, according to Photo District News.

Today, however, the Second Circuit Court of Appeals issued a decision in a similar copyright infringement lawsuit, which suggests that Fairey was actually right about the fair use doctrine.

The case involves a dispute between artist Richard Prince and photographer Patrick Cariou. In 2000, Cariou published Yes, Rasta, a book of photographs of Rastafarians in Jamaica. In 2007, Richard Prince, an "appropriation artist," exhibited his Canal Zone series, which featured images or parts of images from 41 Yes, Rasta photos. Prince's works were attached to wooden backer boards and included paint over portions of the photos, reports BNA.

Cariou sued Prince, Gagosian Gallery, and Larry Gagosian for copyright infringement. (Most of the Canal Series was displayed and marketed through Gagosian Gallery.) Prince and Gagosian responded that Prince's use of the photographs fell under the fair use doctrine. Judge Deborah Batts rejected their fair use defense, finding that in order for a work to meet the "transformative" prong of the fair use test, it must "in some way comment on, relate to the historical context of, or critically refer back to the original works."

The Second Circuit Court of Appeals rejected Judge Batts' reasoning this week, concluding that the law does not require that a secondary use comment on the original artist or work, or popular culture. Instead, the appellate court decided to go with the always-reliable "reasonable person" standard.

Applying the reasonable person standard, the appellate court concluded that 25 of 30 works in question satisfied the fair use criteria because they "have a different character" from the original work, give it a "new expression" and employ "new aesthetics with creative and communicative results distinct" from the original, The New York Times reports. The Second Circuit remanded the analysis for the remaining five works to the district court.

Until the Supreme Court says otherwise, the line between fair use transformation in art and derivative images that constitute copyright infringement will be determined by "reasonable" people.

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