# When the Eye Decides: Cariou v. Prince and Fair Use for Appropriation Art

> The Second Circuit held that appropriation art can be transformative fair use even without commenting on the original, then left five works in doubt.

Topic: Copyright  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/cariou-v-prince-appropriation-art-transformative-use/


Few decisions have unsettled the art world (and copyright doctrine) as sharply as the Second Circuit's ruling that appropriation artist Richard Prince could lawfully paint over and collage another photographer's images without permission, comment, or apology. In *Cariou v. Prince*, No. 11-1197 (2d Cir., decided Apr. 25, 2013), the court held that fair use does not require a secondary work to "comment" on the original at all, and that twenty-five of Prince's reworkings of Patrick Cariou's photographs were transformative as a matter of law. The opinion expanded the breathing room for appropriation artists while exposing how unstable a test grounded in a judge's aesthetic perception can be, a tension that would echo all the way to the Supreme Court a decade later.

## At a glance

- **Case:** *Patrick Cariou v. Richard Prince, Gagosian Gallery, Inc., and Lawrence Gagosian*, 714 F.3d 694, No. 11-1197-cv (2d Cir. Apr. 25, 2013), cert. denied, 134 S. Ct. 618 (2013).
- **Court:** United States Court of Appeals for the Second Circuit; majority opinion by Judge B.D. Parker, joined by Judge Hall; opinion concurring in part and dissenting in part by Judge J. Clifford Wallace of the Ninth Circuit, sitting by designation.
- **Posture:** Reversing in part and vacating the Southern District of New York's grant of summary judgment to Cariou, which had found infringement and ordered Prince's works destroyed or surrendered.
- **Holding:** Twenty-five of Prince's thirty works were fair use as a matter of law because they were transformative; the remaining five were remanded for the district court to apply the corrected standard.
- **Significance:** Fair use does not require commentary on the original; the test is whether a reasonable observer would find the new work has a fundamentally different aesthetic, purpose, and character.

Cariou had spent six years among Rastafarians in Jamaica, producing the serene portraits and landscapes collected in his 2000 book *Yes Rasta*. Prince, a prominent appropriation artist, tore pages from that book, enlarged and altered the images, painted over faces with lozenge shapes, added collaged elements such as electric guitars, and incorporated them into a series called *Canal Zone*, exhibited at the Gagosian Gallery. Cariou sued. The district court not only found infringement but ordered the offending art impounded, an extraordinary remedy that helped propel the appeal.

## Transformation without commentary

The district court had required that a secondary use "comment on, relate to the historical context of, or critically refer back to the original works." Because Prince testified that he did not "really have a message" and had no interest in Cariou's "original intent," the lower court found no transformation. The Second Circuit rejected that premise outright. "The law imposes no requirement that a work comment on the original or its author in order to be considered transformative," Judge Parker wrote. What matters, on the Supreme Court's *Campbell v. Acuff-Rose* formulation that the panel quoted, is whether the new work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."

This was a significant doctrinal move. *Campbell* had concerned parody, where commentary on the original is intrinsic. *Cariou* extended transformative-use analysis to appropriation art that makes no statement about its source at all, reasoning that the first factor looks to how the works "may reasonably be perceived" rather than to the artist's stated intent. The court thus relocated the inquiry from the creator's mind to the viewer's eye: "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."

## The reasonable observer and the side-by-side comparison

Applying that standard, the panel itself compared Cariou's photographs with Prince's works and concluded that twenty-five "manifest an entirely different aesthetic." Cariou's images were "serene and deliberately composed portraits and landscape photographs"; Prince's were "crude and jarring," "hectic and provocative." The differences in "composition, presentation, scale, color palette, and media," the court held, were "fundamentally different and new." Prince had also worked at a vastly larger scale, on canvases the court measured at between ten and nearly a hundred times the size of the book pages, and had overpainted and distorted the originals to a degree the court found expressively distinct.

The court's willingness to make this aesthetic judgment itself (rather than leaving it to a jury or to expert testimony) is the most criticized feature of the opinion. By appointing the appellate panel as the "reasonable observer," *Cariou* invited the worry that fair use in the visual arts would turn on whether judges happened to perceive a work as sufficiently new, an inherently subjective and unpredictable enterprise. Judge Wallace's partial dissent pressed exactly this point, objecting that the majority had substituted its own artistic eye for the fact-finding that should occur below, and would have remanded all of the works.

## Market harm and the five remanded works

On the fourth factor, the court emphasized that the relevant harm is usurpation of the market, not whether the secondary use "suppresses or even destroys the market for the original work or its potential derivatives." There was no evidence that Prince's works (sold to wealthy collectors and celebrities for sums reaching into the millions) usurped the market for Cariou's photographs or for any derivative Cariou would plausibly pursue. The audiences did not overlap; indeed, the record showed Cariou had made little effort to market *Yes Rasta* aggressively. That the two works occupied entirely different commercial spheres weighed strongly toward fair use.

But the panel stopped short of clearing all thirty works. Five of them (including pieces where Prince's alterations were more modest and Cariou's original composition remained substantially intact) were, in the court's view, too close to call as a matter of law. Those five were remanded for the district court to assess under the corrected, observer-focused standard. The case settled in 2014 before that reassessment produced a ruling, leaving the doctrinal fate of borderline appropriation works unresolved and signaling just how much rode on degree, not kind.

## Open questions

- **Who is the "reasonable observer"?** *Cariou* never defined whether this is a judge, a jury, an art-world expert, or an ordinary viewer. That ambiguity makes outcomes hard to predict.
- **How much alteration is enough?** The split between the twenty-five cleared works and the five remanded works turned on degree, but the court offered no bright line for where transformation begins.
- **Does "different aesthetic" prove "different purpose"?** Later decisions, including *Warhol v. Goldsmith*, would question whether a new look alone, divorced from a distinct use or message, suffices under the first factor.

## Implications

- **Commentary is not required for transformative use.** A secondary work need not critique or refer to the original to claim transformation, at least in the Second Circuit's post-*Cariou* framing.
- **The viewer's perception governs.** Courts look to how a work reasonably appears, not to the artist's stated intentions, which limits the value of self-serving testimony either way.
- **Market analysis favors non-overlapping audiences.** When the appropriating work sells in a wholly different market, substitution harm is hard to show.
- **Aesthetic judgment by courts is risky.** Resolving fair use by judicial eye injects unpredictability and drew pointed criticism that later cases sought to discipline.
- **Borderline works remain dangerous.** Modest alterations that leave the original recognizable and intact may still infringe, as the five remanded works illustrate.

## Frequently asked questions

**Did Richard Prince win the case?**
Largely. The Second Circuit held twenty-five of his thirty works were fair use as a matter of law and vacated the injunction that would have let Cariou destroy them, remanding only five for further analysis. The parties settled in 2014 before the remaining works were finally adjudicated.

**Does *Cariou* still control after *Warhol v. Goldsmith*?**
Its core holding that commentary is not strictly required survives, but the 2023 *Warhol* decision sharpened the first-factor analysis to emphasize the use's purpose and any commercial substitution, tempering *Cariou*'s emphasis on a merely "different aesthetic."

**Can any artist freely reuse a photograph if they change the style?**
No. A new style or aesthetic helps, but courts also weigh how much was taken, whether the original remains recognizable, and whether the new work competes in the same market. Modest changes that preserve the original's expression can still infringe.

## Authorities and sources

- U.S. Copyright Office Fair Use Index summary, *Cariou v. Prince*, 714 F.3d 694 (2d Cir. 2013): https://www.copyright.gov/fair-use/summaries/cariou-prince-2dcir.2013.pdf
- Second Circuit opinion PDF (UC Berkeley Law): https://www.law.berkeley.edu/files/Cariou_v_Prince_-_2d_Cir_2013.pdf
- Jones Day analysis, "Second Circuit Clarifies Copyright Fair Use Standard": https://www.jonesday.com/en/insights/2013/05/second-circuit-clarifies-copyright-fair-use-standard
- Loeb & Loeb LLP client alert on *Cariou v. Prince*: https://www.loeb.com/en/insights/publications/2013/05/cariou-v-prince
- Harvard Berkman Klein copy of the opinion: https://cyber.harvard.edu/people/tfisher/IP/2013_Cariou.pdf