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Recall our prior articles on the Cariou v. Prince legal battle, which centered on the issue of “fair use”. You can read our previous article titled “It Ain’t Over Till Its Over and This One Ain’t Over”, here.
Recently the Second Circuit Court of Appeals substantially reversed the lower court’s decision that artist Richard Prince had infringed upon the copyrights of photographer Patrick Cariou.
That original decision was overruled by the appeals court, which basically held that the secondary work does not necessarily have to comment on the original to be “transformative” nor does the artist’s intent matter. It is the opinion of many in both the legal and non-legal communities that the appeals court has further confused the defense of “fair use” and when it can be correctly asserted. It seemingly gave a green light to some pretty blatant copying at least with respect to many (not all) of Mr. Cariou’s work.
Mr. Cariou’s attorneys recently filed a petition requesting that the United States Supreme Court review or reconsider the decision of the Circuit Court. Some points made by counsel include that the appellate decision disregarded prior US Supreme Court cases, failed to explain how a “reasonable observer” should compare “originals” vs. derivatives (or copies). Also that the public (or creators) has not been given any predictable or clear guidelines to employ or give any guidance in determining whether a fair use defense is proper or whether an artist has just been plainly ripped off. Simply put, Mr. Cariou’s attorneys claim that the appellate decision is impossible to follow or interpret on a daily basis by pretty much anybody. That is a position with which we tend to agree.
In any event, the Supremes have the option to hear this case and issue a new decision which may be similar or utterly different from that of the Circuit Court OR refuse to consider the case at all and by so doing let the decision of the Second Circuit stand. Statistically 90%+ of all cases submitted to the US Supreme Court are simply rejected and not heard. We fervently hope that this one will buck the odds and be heard by all 9 of the Supremes.
In plain language, if the recent ruling by the Circuit Court stands, someone can take your photo, make a slight alteration, and then license or sell the resulting image. That’s not just professional or fine art photos, think about your personal images posted online being picked up and then a product retouched in, and then used in a National Ad. A bit far fetched, we know, but that’s the extreme scenario of what will be allowed as “fair use”.
But who knows, as the Circuit’s decision was not black and white. They threw out the decision for 25 images, but said 5 of the images needed to be retried.
Confusing? Yeah, the current decision has left a ton of confusion in its wake. Confusion helps lawyers make money while victims suffer bewilderment and incentivized thieves cross their fingers. The issue of “fair use” was complicated enough before the Circuit Court heaped even more confusion on an issue of paramount importance to photographers and creators everywhere. As we correctly predicted a few months ago, “it still ain’t over”.
The importance of this case can not be overstated. The very parameters, guidelines or lack thereof, which may (or many not) apply in copyright infringement cases are at stake. Whether and just how someone can copy your work and get away with it, may very well be determined by nine non-photographers. Ed can attest from personal experience that one of the robed justices doesn’t know the difference between professional digital images and unprocessed Instamatic film lost at WalMart or CVS. These nine may very well decide the fate of tens of thousands of professional photographers who have consistently failed to make their voices heard in Washington. Your fate is now in their inexperienced hands. They have varying degrees of legal knowledge but none of them could even qualify as a part time photo assistant.
Regardless of your theology, there’s no harm in giving St. Jude a call.