In the case in which art superstar Richard Prince and his agent, megadealer Larry Gagosian, and Mr. Gagosian’s gallery were all found to have jointly infringed the copyrighted images of photographer Patrick Cariou, their appeal of the U.S. District Court’s March decision is having some trouble getting off the ground.
That’s because Mr. Cariou has moved to have any appeal tossed out. It’s premature, his lawyers are arguing, because there hasn’t yet been a jury trial to determine the damages Mr. Cariou suffered.
If that trial goes forward—either because Mr. Cariou’s motion is successful or because the appeal flops—the buyers of Mr. Prince’s infringing “Canal Zone” paintings have cause to be on edge: the prices each paid likely will be publicly disclosed, as, perhaps, may be the names of the owners.
In the meantime, Mr. Prince’s unsold “Canal Zone” paintings have been sequestered in a Long Island City warehouse as part of an agreement between both sides to forestall the paintings’ possible destruction—an option the district court had explicitly granted Mr. Cariou—at least until Cariou v. Prince is finally resolved.
These are some of the revelations disclosed to The Observer by lawyers and gleaned from Mr. Cariou’s recent motion, which could be decided as early as August.
The biggest news Mr. Prince’s collectors have to absorb now, though, may be that the paintings they bought from Gagosian Gallery not only can’t be displayed; it’s also likely they can’t be resold except, conceivably, on the black market (unless the court’s decision is overruled on appeal, a process that could take years).
There’s a discrepancy regarding the number of “Canal Zone” works that sold but, according to the defendants’ documents, at least 14 works from the series found buyers, and four sold for prices ranging from $400,000 to $2.43 million.
After the court ordered the defendants to inform those buyers of certain effects of its decision, lawyers for Mr. Gagosian and his gallery sent them letters stating that “in the opinion of the Court” the paintings were “not lawfully made under the Copyright Act of 1976” and they “cannot lawfully be displayed … in the public.”
What the letters didn’t explain is that the paintings are now not too different from contraband. They have to be hidden from public view and, according to Mr. Prince’s own lawyer, Josh Schiller of Boies, Schiller & Flexner LLP, probably can’t be resold.
“Any kind of sale would include showing [the work] publicly” and that’s been forbidden by the court, Mr. Schiller said.
Mr. Schiller didn’t say the “Canal Zone” paintings were now worth nothing—he described their worth as “undetermined”—but he did say that the decision had placed an “implied limit on their value.”
“An injustice” is how Mr. Schiller termed the decision’s effect on the various collectors.
Copyright law expert David Wolf, who is not involved in the case and is former litigation counsel at Time Inc., said the owners would do well to “think twice about selling,” and that any third party who knew about the court decision and tried to sell the work—an auction house, for example—“would run a pretty severe risk.”
Have any of the purchasers asked Mr. Gagosian or the gallery for a refund and if so, what happened? The Observer asked the Gagosian Gallery gatekeepers almost a week ago. No comment.
Mr. Cariou’s lawyer, Dan Brooks, has received the appropriate receipts for each painting sold, and the parties have stipulated that that information “shall be admissible as evidence.” Mr. Brooks said that the prices will be “fully aired” at a jury trial on damages—for now they’re subject to a confidentiality agreement—and “there won’t be any dispute” about how much each work brought.
The sales prices of the “Canal Zone” paintings apparently have a broad range—four of them sold for between $400,000 and $2.43 million, according to the defendants’ papers. The gallery is known to be tight-lipped on prices, and the precise sales prices of Mr. Prince’s works may end up being brought to light in the course of the suit. Then again, settlement is always a possibility, if only to protect the secrecy of just this type of information.
If the appeal goes ahead, among Mr. Schiller’s arguments may be that the district court should have in effect rejected or at least discounted his own client’s testimony—in the court’s view, Mr. Prince’s testimony was highly damaging to his case. Instead, Mr. Schiller said, the court “would have benefited” from considering “more objective factors,” which he didn’t specify, and evidence of “how the public perceives [Mr. Prince’s] work.”
Mr. Prince had argued that his use of Mr. Cariou’s photographs came within the “fair use” exemption of copyright law, which permits limited borrowing of other people’s copyrighted work for such things as commentary, news reporting and satire.
But the district court held that in order to be considered “fair use,” the new work must be “transformative” of the original. Mr. Prince’s work was not transformative, the court found, because it did not “in some way comment on, relate to the historical context of, or critically refer back” to Mr. Cariou’s work.
Mr. Prince himself had testified at deposition that he had no interest at all in what Mr. Cariou’s photographs meant.
Focusing on Mr. Prince’s testimony is too “narrow” a view of the law, said Mr. Schiller, and it means “an artist has to lawyer up to get his perception across.”
It could prove tough to overcome Mr. Prince’s testimony. “Whatever arguments they make, the court will look at Prince’s testimony,” said Mr. Wolf, the copyright expert. “Anytime the party gives detailed testimony about what he’s doing, it’s important.”
One effect of the decision in this case, Mr. Schiller said, is that courts “will be really strict” now in interpreting fair use. Mr. Wolf, however, said appropriation artists shouldn’t necessarily be concerned: “Every case is different,” he said.
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