Nature of the Case
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Facts
P is a professional photographer who in the mid-1990s, lived and worked among Rastafarians in Jamaica. P took a series of portraits and landscape photographs that were published in 2000 in a book titled Yes Rasta. As P testified, Yes Rasta is 'extreme classical photography [and] portraiture,' and he did not 'want that book to look pop culture at all.' PowerHouse Books, Inc., printed 7,000 copies of Yes Rasta, in a single printing. The book enjoyed limited commercial success. The book is currently out of print. The book is currently out of print. As of January 2010, PowerHouse had sold 5,791 copies, over sixty percent of which sold below the suggested retail price of sixty dollars. PowerHouse paid P just over $8,000 from sales of the book. D is a well-known appropriation artist. Appropriation art is 'the more or less direct taking over into a work of art a real object or even an existing work of art.' D's work involves taking photographs and other images that others have produced and incorporating them into paintings and collages that he then presents, in a different context, as his own. D came across a copy of Yes Rasta in 2005. Between December 2007 and February 2008, Prince had a show in St. Barth's that included a collage, titled Canal Zone (2007), comprising 35 photographs torn out of Yes Rasta and pinned to a piece of plywood. D altered those photographs significantly, by among other things painting 'lozenges' over their subjects' facial features and using only portions of some of the images. In June 2008, D purchased three additional copies of Yes Rasta. He went on to create thirty additional artworks in the Canal Zone series, twenty-nine of which incorporated partial or whole images from Yes Rasta. D affixed headshots from Yes Rasta onto other appropriated images, all of which Prince placed on a canvas that he had painted. P's work is almost entirely obscured. D's artworks also incorporate photographs that have been enlarged or tinted and incorporate photographs appropriated from other artists. Yes Rasta is a book of photographs measuring approximately 9.5' x 12'. D's artworks, in contrast, comprise inkjet printing and acrylic paint, as well as pasted-on elements, and are several times that size. The smallest measures 40' x 30.' In some of the works P's original work is readily apparent: D did little more than paint blue lozenges over the subject's eyes and mouth, and paste a picture of a guitar over the subject's body. The Gallery (D) put on a show featuring twenty-two of D's Canal Zone artworks, and also published and sold an exhibition catalog from the show. D never sought or received permission from P to use his photographs. Prior to D's show, a gallery owner contacted P about an exhibit. They did not select a date or photographs to exhibit, nor did they finalize any other details about the possible future show. The gallery owner learned that P's photographs were 'in the show with Richard Prince' and phoned P and, when P did not respond, she mistakenly concluded that he was 'doing something with Richard D.' She decided that she would not put on a 'Rasta show' because it had been 'done already.' P learned about D's show and sued Ds for copyright infringement. Ds asserted a fair use defense, arguing that F's artworks are transformative. The district court 'imposed a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works' in order to qualify as fair use, and stated that 'D's Paintings are transformative only to the extent that they comment on the Photos.' Ds appealed.
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