Fair Use for the Rich and Fabulous? | The University of Chicago Law Review | The University of Chicago 80 U Chi L Rev Dialogue 88 [Essay PDF] In two recent decisions concerning copyright’s fair use doctrine, the Second Circuit addressed the lawfulness of incorporating one creative work into a new one. In both Cariou v Prince1 and Salinger v Colting,2 US District Judge Deborah Batts enjoined similar activity using nearly identical reasoning.3 But on appeal, the Second Circuit found fair use in the former4 and likely infringement in the latter.5 In this short essay, we welcome the Cariou decision’s shift away from the singular, subjective intent of the putative fair user towards a more audience-focused inquiry. When Cariou is compared with Salinger, however, we are concerned that this shift introduces a new set of distributional problems into the fair use analysis. In particular, why does a substantial reworking of Catcher in the Rye interfere with J.D. I. II. Moreover, Prince sold eight artworks for $10,480,000, and exchanged seven others for works by Larry Rivers and Richard Serra. III.
The purpose and/or character of fair use in light of Cariou v. Prince In November the United States Supreme Court denied the petition for writ of certiorari in Cariou v. Prince, the most significant copyright fair use case to be petitioned to the Court in 20 years. The case involves the unlicensed use of Patrick Cariou’s photographs in works of art made by appropriation artist Richard Prince, some of which were then sold by Prince for millions of dollars. When Cariou filed suit for copyright infringement, Prince defended himself against the claim by asserting that he did not need Cariou’s permission to use the photographs because his use was a “fair use” under the Copyright Act. Cariou prevailed at the federal district court level: the judge found that the fair use defense did not apply and held for Cariou. When Prince appealed to the Second Circuit, the appeals court reversed and found that Prince’s appropriation of the photographs was fair.Cariou v. The New York Intellectual Property Law Association agreed with Cariou.