02 May 2013

A Second Circuit Nod to Appropriation Art

Chaya F. Weinberg-Brodt
Special counsel | US

On April 25, 2013, the United States Court of Appeals for the Second Circuit issued a landmark decision in a closely-watched fair use copyright case, Patrick Cariou v. Richard Prince, Gagosian Gallery, Inc. and Lawrence Gagosian, holding that 25 artworks by noted appropriation artist Richard Prince, which had been marketed and sold by Gagosian Gallery, made “fair use” of and did not infringe on Patrick Cariou’s copyright in his book “Yes Rasta.”

This is an important victory for appropriation artists, and the galleries and museums that show their work, as the Second Circuit rejected the trial court’s narrow definition of fair use, holding that secondary works need not comment on, criticize, or relate to the historical context of the original work. The Second Circuit adopted the arguments Withers Bergman LLP made to the lower court on behalf of Gagosian Gallery and Lawrence Gagosian, that fair use may be found when a secondary work is transformative; i.e., if it creates new information, new aesthetics, new insights and new understanding. Applying this standard, the Second Circuit found that 25 of Prince’s 30 artworks clearly “manifest an entirely different aesthetic for Cariou’s photographs,” with different character, different “creative and communicative results,” intended for a different market and audience. The Second Circuit has directed the trial court to reassess the remaining five works under this same standard. In rendering this ruling, the Second Circuit has lifted the chilling effect the trail court’s decision had on postmodern and contemporary art, which heavily relies on what already exists to create new and different forms of expression.

Hollis Gonerka Bart, Chaya Weinberg-Brodt and Azmina Jasani of the Withers U.S. litigation team represented Gagosian Gallery, Inc. and Lawrence Gagosian in the case.

Please click on the link below to download a copy of the Second Circuit’s decision.


Chaya F. Weinberg-Brodt Special counsel | New York

Category: Article