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Guild Joins Organizations in Amicus Brief in Fine Art Appropriation Case

In mid-December, the Graphic Artists Guild joined other arts organizations (ASMP, Picture Archive Association of America, PACA, PPA, NPAA, Jeremy Sparig, APA, and ASJA) in filing an amicus brief in opposition to a brieffiled by the Warhol Foundation in Patrick Cariou v. Richard Prince. Photographer Patrick Cariou sued fine artist Richard Prince for copyright infringment after Prince appropriated a number of Cariou’s photographs for a series of paintings. Prince duplicated the photographs from a published book of Cariou’s photos without seeking permission from Cariou, and minimally altered them. While the District Court found in favor of Cariou, the United States District Court of Appeals for the Second Circuit reversed much of that decision, withholding judgement of five of the paintings. The court found that the bulk of the paintings fall under fair use since they “manifest an entirely different aesthetic from Cariou’s photographs.”

The Warhol Foundation issued an amicus brief in which they argued in favor of the fair use finding, contending that the paintings are transformative in that they convey a different meaning or message than the original photographs. Additionally, the Foundation’s brief asks that the court consider the “broader art community” to be the reasonable observers of the paintings, to whom the transformative nature of the work would be apparent.

The amicus brief filed by the Guild and the other organizations disputes the Warlhol Foundation’s framing of fair use:

“The application of the “reasonable person” test for transformativeness, in the form advanced by Defendants and the Warhol Foundation in its amicus brief would permit the blanket appropriation of artistic creations without compensation to the authors and owners of the copyrights in those works. While appropriation is a long-known practice in the artistic community, the use of an artist’s underlying work in a different medium is no different than selling any intellectual property through a different channel of distribution. 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 brief urges the court to reject the “reasonable person” standard proposed by the Warhol Foundation, and to find no fair use in this case:

“Defendants and the Warhol Foundation propose an application of the “reasonable person” standard that would not even require modification of the original photographs’ aesthetic in any way. Such a standard would permit appropriating artists to circumvent the available licensing systems, knowing that a standard that permits simple after-the-fact rationalization for appropriation as a “fair use” defense forecloses many less-endowed visual artists from fighting them in the courts… Photographers, and all creators of original work, should not be deprived of their work’s value on the basis of appropriation.“



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