Cariou v Prince: 45 Thousand Join the Fray

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The American Photographic Artists, the American Society of Journalists and Authors, the American Society of Media Photographers, the Graphic Artists Guild, the National Press Photographers Association, the Picture Archive Council of America and the Professional Photographers of America have filed a “friend of the court” brief in support of Patrick Cariou.”

Written by David Leichtman and Hillel Parness of the New York law firm of Robins, Kaplan, Miller & Ceresi, the brief is directed mainly at what the artist support groups view as a class-biased amicus brief filed by The Andy Warhol Association. That brief used information regarding monetary support, sales, and expert opinions to support the seemingly contradictory position that Prince’s work was objectively transfomative.

“The standard articulated by the Warhol Foundation would create an unwarranted safe harbor around a small coterie of well-connected elite artists who sell their works for extraordinary prices, at the expense of the greater community of working artists.”

The Cariou v Prince case continutes apace with 45 thousand voices added in a new amicus brief.  I am happy for this go be ongoing so long as we, and the courts, remain unclear as to what purpose it serves to keep “transformation” as the key to unwrapping fair use claims. I see the entire history of fair use tipping toward increasingly vague “transformations” and away from the four original factors of measure for fair use:

  1. the purpose and character of the derivative use
  2. the nature of the original
  3. the proportion of original used in the derivative use
  4. the effect of derivative use upon the market for the original.

I continue to think that the concept of “transformative” use, although it seemed, at first, like a shortcut to determining social benefit, has proven to be a distraction, a slippery slope, and an unfortunate detour.

Were I a judge, I’d be very happy to give very little weight to “transformative” use and way more weight to “effect on the market” (or ANY of the other four factors!) Because any time anyone traces, spits upon, re-frames, or re-locates an item they transform it and courts have to scramble to weight the import.

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