## Facts

- Patrick Cariou photographed Rastafarians in Jamaica in the mid-1990s and published black-and-white photographs in *Yes Rasta* (2000), retaining copyrights in the images.
- Richard Prince, an appropriation artist, used multiple *Yes Rasta* photographs as source material for thirty artworks in his *Canal Zone* series (2007–2008).
- Prince altered the source photographs by techniques such as enlarging, cropping, blurring/sharpening, adding paint elements (including painted shapes over faces), and combining them with other imagery.
- Gagosian Gallery exhibited the *Canal Zone* works in 2008, sold several for prices up to $2 million or more, and produced an exhibition catalog.
- Cariou had limited commercial exploitation of the photographs beyond the book; he had not developed or licensed secondary uses and expressed no interest in advertising or similar uses.
- Cariou sued Prince and the Gagosian defendants for copyright infringement; defendants asserted fair use under 17 U.S.C. § 107.

## Issues

1. Whether a secondary work must comment on, criticize, or refer to the original to qualify as “transformative” under the first fair-use factor.
2. Whether Prince’s artworks were fair use under the four statutory factors in 17 U.S.C. § 107.
3. Whether broad injunctive relief, including surrender and potential destruction of unsold works and catalogs, was proper given the fair-use analysis.

## Decision

- The Second Circuit reversed in part, vacated in part, and remanded the judgment.
- The court held the district court applied an incorrect legal standard by requiring Prince’s works to comment on or critique the original to be transformative.
- Applying the correct standard, the court concluded that 25 of the 30 artworks were fair use as a matter of law.
- The court remanded for the district court to determine fair use as to the remaining five artworks.
- The court vacated the sweeping injunctive relief and surrender/destruction order in light of its fair-use rulings and remand.

## Legal Principles

- Transformative use does not require that the secondary work comment on, relate to, or critique the original or its author; the question is whether the secondary work adds new expression, meaning, or message.
- Transformativeness is assessed from the standpoint of how the work may reasonably be perceived, not primarily from the artist’s stated intent or inability to articulate a message.
- Under the third factor, the relevant inquiry is whether the amount taken is reasonable in relation to the purpose of the copying, including the transformative objective; copying substantial portions (even entire images) may be permissible.
- The second factor (creative, published nature of the original) typically weighs against fair use but often carries limited weight where the use is highly transformative.
- Under the fourth factor, the focus is on harm to the traditional, reasonable, or likely markets for the original and its derivatives; differences in market audience and purpose can weigh against a finding of market substitution.
- Broad equitable remedies such as impoundment or destruction require a valid infringement basis and must be reconsidered where fair use may apply.

## Conclusion

The Second Circuit clarified that transformative fair use does not depend on explicit commentary on the original work, held that most of Prince’s appropriation artworks were fair use based on their objectively perceived new expression and lack of market substitution, and vacated the district court’s expansive injunction while remanding a subset of works for further fair-use analysis.


Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)