Very few courtrooms in New York look like the ones on Law and Order, but the chambers where the latest arguments were heard in the Patrick Cariou v. Richard Prince copyright case do. If you’re not familiar with the case, it concerns Mr. Prince’s “Canal Zone” appropriation paintings, which incorporate Mr. Cariou’s ethnographic photography, and on Monday lawyers argued before a three-judge panel of the Second Circuit Court of Appeals—the Prince team trying to send the case, which they’d lost, back to the lower courts.
Prince lawyer Joshua Schiller fired an early volley requesting that the case be sent back to have the 31 works individually assessed rather than evaluated as a whole (not a bad tactic, since some of the works contain no photos by Mr. Cariou). His goal, he said, was to better judge how each work was perceived by an audience, which might be proved by anything from personal opinion to objective market facts.
“How do ‘objective market facts’ prove perception?” asked Judge Barrington D. Parker, holding up a hand.
(“They don’t,” hissed a woman in round glasses in the audience, to a man in round glasses in the audience. A MoMA umbrella sat at their feet.)
They demonstrate perception, Mr. Schiller said, because savvy collectors have expressed their endorsement of the art “not just in viewing the works, but in purchasing them.”
Daniel Brooks, a lawyer for Mr. Cariou, became appropriately incensed at this during his turn to speak, as he had to be. Part of his argument is that Mr. Cariou’s market suffered through Mr. Prince’s appropriation.
“Unfair use does not become fair use simply because it obliterates the market for the original,” Mr. Brooks said.
Judge Parker took issue with this. After all, Mr. Cariou’s main market consisted of collections he sold at Powerhouse Books in Dumbo, and, he said, “Nobody bought very many of them.” He also wasn’t too pleased with the initial injunction that sought to destroy the Richard Prince works.
“It seems to me something like that would appeal to Huns or the Taliban,” Judge Parker said, though Mr. Brooks had clarified earlier that his client no longer wanted to destroy the “Canal Zone” paintings.
“Counsel, I am not an art critic,” began Judge J. Clifford Wallace, and then said that if he had to ballpark it, about 10 of the paintings probably infringed copyright.
In his rebuttal to Mr. Brooks, Mr. Schiller described a black box in his office, “the size of this podium,” he said, gesturing to the dumpster-sized thing before him, filled with image clippings that Mr. Prince uses in his art. “These are the raw ingredients; he uses them to create different meanings, different messages.”
The volley of arguments didn’t have Mr. Brooks on the ropes, but he was left with a lot to address. “This is an interesting case,” Judge Peter Hall assured him at the start of his portion of the hearing. “You’re not going to get cut off.” Things don’t seem to be winding down on a macro level, either.