Schnader Urges U.S. Court of Appeals for the Second Circuit to Uphold Ruling for Their Client, Patrick Cariou

On Wednesday, January 25, 2012, Schnader partner Daniel J. Brooks asked the U.S. Court of Appeals for the Second Circuit to uphold a ruling that appropriation artist Richard Prince had violated his client, photographer Patrick Cariou’s copyright and argued that fair use did not apply because Prince had used his photographs in new works without any justification.

In March 2011, Mr. Brooks obtained a decisive victory (Cariou v. Prince et al., 784 F.Supp.2d 337 [S.D. NY, 2011]) for Mr. Cariou in which the court granted Schnader’s motion for summary judgment, ruling that Mr. Prince appropriated the photographs without commenting or focusing on them and did so for a commercial purpose. Further, the court held that Mr. Prince did not meet the four factors required to show fair use under the standards outlined under federal copyright law. Finally, the court held that the gallery and gallery owner where Prince displayed and sold his works were directly, vicariously, and contributorily liable for the infringement.

The decision should be upheld, according to Mr. Brooks, because fair use requires a balancing of the rights of the copyright owner and the rights of the secondary user. If anyone who is an appropriation artist can take anything they want for any reason, or no reason, then the rights of the copyright owner would be completely eviscerated.

The Schnader team also includes associates Seth E. Spitzer and Eric A. Boden. Recent news coverage of the appeal was noted in Law360 on January 23 and 26 and February 3, ARTINFO.com, and artnet.com. The case is Prince et al. v. Cariou, case number 11-1197, in the U.S. Court of Appeals for the Second Circuit.