MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 25.

by Sarah L. Cronin and Joshua M. Keesan TheArt of Appropriation

“APPROPRIATION ART” is art that incor- cated legal issues and a fascinating set of facts, porates images or objects that already exist.1 pitting a professional but largely unknown Throughout the twentieth century, artists photographer, Patrick Cariou, against Richard Cariou v. Prince have appropriated existing images to create Prince, one of the contemporary art world’s new art and as a method of social criticism.2 most celebrated stars. Cariou sued Prince and concerns whether art By the middle of the twentieth century, it the Gagosian Gallery7 for infringement aris- had become commonplace for artists to incor- ing from Prince’s undisputed use of Cariou’s porate images from popular culture and prior photographs of Rastafarians in Prince’s series that incorporates art into new artistic works.3 The idea behind titled Canal Zone. In the end, the fair use certain contemporary appropriation art is to analysis of the lower court and the Second copyrighted material challenge the idea that all art must be created Circuit centered primarily on one factor: entirely by the artist and to shift the focus of whether Prince’s works were transformative is sufficiently artistic creation from the craftsmanship of the as a matter of law. artist toward the artist’s ability to juxtapose Earlier Cases disparate elements in a way that creates new transformative to meaning.4 Prior to Cariou, courts within the Second As the number of artists engaging in and Ninth Circuits considered whether appro- qualify as fair use appropriation art has increased, so too have priation art qualified as fair use. In Rogers v. the number of lawsuits claiming infringe- Koons, photographer Art Rogers sued artist ment of the original works appropriated. Jeff Koons after Koons allegedly took a pho- Central to these cases is one of the thorniest tograph taken by Rogers of a man and his issues in intellectual property: whether the wife holding puppies that Koons had found appropriation artist is entitled to a fair use in a gift shop, tore off the copyright symbol, defense. Although the Copyright Act sets and instructed the image to be turned into a forth four nonexclusive factors to consider in this determination, numerous courts and Sarah L. Cronin and Joshua M. Keesan are associ- commentators have noted that determining ates in the Los Angeles office of Kelley Drye & fair use is an “open-ended and context-sen- Warren LLP. Sarah L. Cronin litigates copyright and sitive inquiry.”5 trademark matters, including Internet domain This issue came to a head in Cariou v. name retrieval. Joshua M. Keesan litigates copy- Prince,6 which the Second Circuit took nearly right and idea theft matters and advises nonprofit a year to decide. The case presented compli- arts clients on a pro bono basis.

Los Angeles Lawyer March 2014 23 sculpture “as per photo.”8 In response to whether the photographs commented on the the Southern District of New York held that Koons’s defense that his work constituted a doll, it did so only in its threshold determi- Prince’s use of Cariou’s images was not fair parody or satire of society at large, the Second nation of parody, not as a requirement for the use and that Prince was liable for copyright Circuit considered whether Koons’s sculp- use to be transformative.18 infringement.25 While Prince conceded that he ture commented on the underlying photo- In yet another case, the Ninth Circuit held had used Cariou’s photographs, he argued graph.9 Deciding against Koons, the court that the defendant’s use of video clips in a that it was fair use because his use was trans- held that Koons’s work did not constitute a biography of Elvis Presley was transformative formative. parody because the claimed object of the par- when “the clips play only for a few seconds Prince’s argument was rooted in one of the

THE SECOND CIRCUIT rejected the district court’s determination that Prince’s art pieces could only qualify for a fair use defense if they “comment on, relate to the historical context of, or critically refer back to the original works.” In the Second Circuit’s view, whether a work is transformative does not depend on whether it “comments” on the original work but rather whether it has altered the original work with “new expression, meaning or message.” ody was not the photograph of the puppies and are used for reference purposes while central purposes of copyright law: to foster itself but rather society at large.10 a narrator talks over them or interviewees creativity. Indeed, copyright law recognizes Over a decade later, however, Koons explain their context in Elvis’ career” but were that not all copying is copyright infringement escaped liability when he was sued in Blanch not transformative when they “play with- and allows some opportunity for fair use of v. Koons after creating a collage painting out much interruption…serv[ing] the same copyrighted materials in order to fulfill the consisting of fragmented images of four pairs intrinsic entertainment value that is protected purpose of copyright law, “[t]o promote the of women’s legs dangling over images of by Plaintiffs’ copyrights.”19 The Ninth Circuit Progress of Science and useful Arts.…”26 desserts and set against the background of explained that “[c]ourts have described new The fair use defense is codified in Section 107 Niagara Falls.11 One of the pairs of legs came works as ‘transformative’ when the works use of the Copyright Act, which identifies four from an advertisement in Allure magazine.12 copyrighted material for purposes distinct nonexclusive factors for assessing fair use, Koons made several changes to the photo- from the purpose of the original material,” the first of which is the purpose and char- graph before incorporating it into his col- and not only if they comment on the under- acter of the use.27 The heart of an analysis laged work, including cropping, inverting, lying work.20 of the first factor is whether and to what and modifying the image in ways the court extent the challenged use is transformative. The Cariou Case found to be significant.13 Koons articulated Does the use add “something new, with a that his objective in using the photo was to Cariou brought a copyright infringement further purpose or different character, alter- comment “on the social and aesthetic con- action against Prince, Lawrence Gagosian, ing the first with new expression, meaning sequences of mass media,” thus using it “in and the Gagosian Gallery after Prince incor- or message”? Alternatively, does it merely the creation of new information, new aes- porated 41 copyrighted photographs of Rasta- supersede the objects of the original cre- thetics, new insights and understandings.”14 farians from Cariou’s book Yes Rasta into var- ation?28 Characterizing Koons’s use of the image as ious paintings and collages in Prince’s Canal The district court in Cariou held that satire, the court found that the use was trans- Zone series.21 In some of his pieces, Prince transformative use requires the secondary formative because Koons had a “sharply dis- enlarged, cropped, tinted, or painted over use to comment on the original work.29 In tinct objective” in using the photograph than the images taken from Yes Rasta, while in doing so, the court referred to the nonex- the plaintiff had in creating it.15 other pieces Prince incorporated Cariou’s haustive list of examples provided in the pre- Another instance of appropriation art giv- images and other appropriated images from amble to Section 107, which exempts use ing rise to a lawsuit is Mattel Inc. v. Walking other sources and original painting.22 Of the of a copyrighted work for purposes of “com- Mountain Productions. Photographer Thomas 29 pieces that make up the Canal Zone series, ment,” and then considered the case law.30 Forsythe was sued by Mattel after he devel- 28 include images taken from Yes Rasta.23 At The court stated that “all of the precedent [it] oped a series of photographs depicting Mattel’s the time the lawsuit was filed, eight of the can identify imposes a requirement that the Barbie doll in various sexualized positions pieces had already been sold through an exhi- new work in some way comment on, relate juxtaposed with vintage kitchen appliances.16 bition at the Gagosian Gallery for a total of to the historical context of, or critically refer The Ninth Circuit held that the series of pho- $10,480,000, and seven others had been back to the original works.”31 Against this tographs was a transformative fair use because exchanged for art with an estimated value backdrop, the court concluded in no uncer- it could reasonably be perceived as a parody between $6 and $8 million.24 tain terms that Prince’s paintings “are trans- of Barbie.17 Although the court did discuss On cross-motions for summary judgment, formative only to the extent they comment on

24 Los Angeles Lawyer March 2014 MCLE Answer Sheet #233 MCLE Test No. 233 THE ART OF APPROPRIATION

The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Name Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization

1. The first factor of a fair use analysis is whether and 12. Cariou has made more than $1 million from Address to what extent the challenged use is transformative. sales of his works at issue in the case. City True. True. State/Zip False. False. E-mail 2. The second factor is the economic value of the 13. Cariou characterized the Second Circuit’s approach Phone copyrighted work. to fair use as “I know it when I see it.” State Bar # True. True. False. False. INSTRUCTIONS FOR OBTAINING MCLE CREDITS 1. Study the MCLE article in this issue. 3. 14. In Cariou v. Prince, the Second Circuit ruled that the Prince petitioned to have certain aspects of the 2. Answer the test questions opposite by marking third factor—the amount and substantiality of the por- Second Circuit’s opinion reheard en banc. the appropriate boxes below. Each question tion used in relation to the original work as a whole— True. has only one answer. Photocopies of this weighed in Prince’s favor. False. answer sheet may be submitted; however, this True. form should not be enlarged or reduced. False. 15. Scholars have observed little or no correlation 3. Mail the answer sheet and the $20 testing fee between judicial findings of transformativeness and ($25 for non-LACBA members) to: 4. In Cariou, the court noted that the more trans- fair use. Los Angeles Lawyer formative the use, the less significant the fourth True. MCLE Test factor is. False. P.O. Box 55020 True. Los Angeles, CA 90055 False. 16. In Seltzer v. Green Day, Inc., the Ninth Circuit Make checks payable to Los Angeles Lawyer. held that the band Green Day’s use of the plaintiff’s 4. Within six weeks, Los Angeles Lawyer will 5. There are six statutory fair use factors for courts to illustration was entitled to a fair use defense. return your test with the correct answers, a consider. True. rationale for the correct answers, and a True. False. certificate verifying the MCLE credit you earned through this self-assessment activity. False. 17. In Rogers v. Koons, the court concluded that 5. For future reference, please retain the MCLE test materials returned to you. 6. The title of the Richard Prince series at issue in artist Jeff Koons’s work was a parody. Cariou is: True. ANSWERS A. Jamaica. False. Mark your answers to the test by checking the B. Canal Zone. appropriate boxes below. Each question has only C. No Rasta. 18. The photograph at issue in Blanch v. Koons first one answer. D. None of the above. appeared in which magazine? A. Cosmopolitan. 1. I True I False 7. Prince was the sole defendant in Cariou. B. Vogue. 2. I True I False True. C. Vanity Fair. 3. I True I False False. D. Allure. 4. I True I False 8. Prince testified at his deposition that his work 19. In Mattel v. Walking Mountain Productions, the 5. I True I False was not intended to communicate a message. Ninth Circuit held that a series of photographs of 6. I A I B I C I D True. Mattel’s famous Barbie doll was not transformative 7. I True I False False. fair use because they could not reasonably be perceived as a parody. 8. I True I False 9. The district court held in Cariou that transform- True. 9. I True I False ative fair use requires the secondary use to comment False. 10. I True I False on the original work. 11. I True I False True. 20. The photograph at issue in Morris v. Guetta was I I False. of which musician? 12. True False A. Sid Vicious. 13. I True I False 10. The Second Circuit held that 25 of Prince’s B. Johnny Rotten. 14. I True I False artworks in the series constituted fair use. C. Iggy Pop. 15. I True I False True. D. Joey Ramone. I I False. 16. True False 17. I True I False 11. The Second Circuit remanded the case as to 10 of 18. I A I B I C I D the artworks at issue. 19. I True I False True. I I I I False. 20. A B C D

Los Angeles Lawyer March 2014 25 [Cariou’s] Photos.”32 Notably, Prince’s dep- second factor, the nature of the copyrighted the correct legal standard were applied, osition disclaimed the possibility that the work, under which published, expressive, additional facts or testimony could have paintings qualified as commentary on Car- creative works merit greater fair use protec- become relevant that might have further ious’s art. Prince testified that he did not tion than unpublished, factual works. Al- affected the analysis and results.53 “really have a message” in his work, nor did though Cariou’s work was creative and pub- Other Recent Cases he have a particular interest in the original lished, the court noted that this factor is of meaning of the photographs he uses.33 As limited usefulness when transformativeness is Although the Second Circuit’s decision in a result, the district court ordered Prince’s established.44 The court held that the third Cariou may be widely discussed, a survey of works to be turned over and impounded, factor, the amount and substantiality of the other notable recent cases reveals that the destroyed, or otherwise disposed.34 Prince portion used in relation to Cariou’s works as Second Circuit’s approach, in which trans- immediately appealed.35 a whole, should be interpreted in conjunction formativeness was seemingly elevated above In his appeal to the Second Circuit, Prince with transformativeness. Specifically, the court all other factors in the fair use analysis, is specifically took issue with the aspect of the concluded that in 25 pieces, Prince used key typical. district court’s ruling imposing a requirement portions of Cariou’s photographs but did so Over the past few years, scholars have that a work must comment on the original in in the service of transforming those portions observed a “high correlation between judicial order to be deemed “transformative.”36 Dis- “into something new and different.” That findings of transformativeness and fair use.”54 agreeing with the trial court’s emphasis on factor also weighed in Prince’s favor.45 With In a 2011 empirical analysis updating prior, Prince’s deposition testimony, Prince argued respect to the fourth factor, the effect of similar studies, for example, Professor Neil that his reluctance to articulate a specific Prince’s use upon the potential market for Netanel analyzed decisions during 2006- artistic intent “is consonant with the core Cariou’s photographs, the court similarly 2010 and found that the correlation was post-modern belief that an artist’s intent is noted that the more transformative the use, striking. In 20 out of the 22 opinions he irrelevant because an artwork’s meaning is the less significant this factor.46 analyzed, courts that found the defendant’s manifold, malleable, and does not have one Moreover, the court noted the markedly use was transformative further determined single meaning in the eye of the viewer.”37 different markets for the two artists’ works. that the defendant had engaged in fair use.55 Although Cariou has earned just $8,000 in In all but three of the cases Netanel ana- The Second Circuit Rules royalties from the photographs at issue and lyzed in which the court found that the use Nearly a year after hearing oral argument on has only sold four prints from the book, the was not transformative, the court likewise the case, the Second Circuit issued its opin- court noted that Prince’s Canal Zone series found no fair use.56 ion reversing the district court in part.38 In a was unveiled at a celebrity-studded affair A review of opinions in 2013 produces an 2-1 decision, the Second Circuit rejected the hosted by the Gagosian Gallery and that even more striking result. In all 15 cases district court’s determination that Prince’s Prince’s works from the series have sold for (including Cariou) decided in 2013, if the art pieces could only qualify for a fair use over $10 million. Accordingly, the court con- court found the work transformative it like- defense if they “comment on, relate to the his- cluded that this factor weighed in Prince’s wise found fair use, and if it found the use was torical context of, or critically refer back to favor as well.47 The Second Circuit’s analy- not transformative it found that fair use had the original works.”39 In the Second Circuit’s sis of each of the Copyright Act’s four fair use not been established as a matter of law.57 view, whether a work is transformative does factors appears to have been guided directly For example, in Seltzer v. Green Day, not depend on whether it “comments” on the by its conclusion that 25 of the works were Inc.,58 the Ninth Circuit affirmed the district original work but rather whether it has altered transformative.48 Transformativeness was court’s grant of summary judgment in favor the original work with “new expression, indisputably the central focus of the analysis of the band Green Day for the band’s unau- meaning or message.”40 With this in mind, the and was critical to the court’s ultimate deter- thorized use of the plaintiff’s illustration of Second Circuit pronounced itself “convinced” mination of fair use. a man’s screaming face in a video projected of the transformativeness of 25 of the works. In dissent, J. Clifford Wallace, a senior behind the band during a concert tour.59 In In its view, these 25 works featured an “entire- circuit judge of the U.S. Court of Appeal for determining that the use was transformative, ly different aesthetic than Cariou’s pho- the Ninth Circuit sitting by designation, the Ninth Circuit explained that the illustra- tographs,” and as such, were “fundamentally agreed with the majority that the district tion was used merely as “raw material” for the different and new.”41 court improperly held that only works that creation of a new work that featured the illus- Unlike the district court, the Second Cir- “commented” on the original works were tration as “not simply a quotation or repub- cuit was unmoved by Prince’s deposition tes- entitled to the fair use defense.49 Judge lication.”60 Although the band had used the timony that he was not “trying to create any- Wallace strayed from his colleagues, how- plaintiff’s entire work, the court concluded thing with a new meaning or a new message” ever, in arguing that the Second Circuit that the other three fair use factors weighed and that he didn’t have any interest in Cariou’s should have remanded the case to the district in Green Day’s favor. Accordingly, summary original intent. The court held that the trans- court (and potentially, to a jury) to apply the judgment was proper.61 formativeness analysis turns on how the correct legal standard to the facts.50 Further- On the other hand, in Mor ris v. Guetta, works “may reasonably be perceived,” rather more, Judge Wallace noted that although another “appropriation art” case involving than on an artist’s subjective views of his or Prince’s testimony need not be deemed dis- Thierry Guetta (also known as Mr. Brain- her work and its meaning.42 positive of the fair use issue, it could be at wash), photographer Dennis Morris alleged The court quickly dispensed with the other least considered relevant to the transfor- that Guetta infringed Morris’s copyright in a fair use factors. As for the first factor, the pur- mativeness analysis.51 Acknowledging his photograph of the Sex Pistols bass player Sid pose and character of the use, the court ack- own lack of expertise with art, Judge Wallace Vicious by incorporating the photograph into nowledged that Prince’s works are commer- was puzzled by the majority’s conclusion artworks.62 Both parties filed motions for cial but expressly stated that this factor was that 25 of the works were fair use while summary judgment—Guetta on his fair use relatively insignificant given its ruling regard- five were not. In his view, the district court defense, and Morris on his copyright claim— ing the works’ transformativeness.43 Similarly, should have been called upon to apply the and the district court denied Guetta’s motion the court also diminished the import of the analysis to the entire series.52 If after remand and granted Morris’s.63 Analyzing the trans-

26 Los Angeles Lawyer March 2014 37 formativeness of the works, the court not- lying work will likely be protected under Id. at 37. 38 Cariou v. Prince, 714 F. 3d 694, 698-99 (2d Cir. ed that Guetta’s works showed Sid Vicious existing copyright law.. I 2013). making the same facial expression he was 39 Id. at 706. making in Morris’ photograph, and although 1 See generally E. Kenly Ames, Note, Beyond Rogers 40 Id. the works added certain new elements, “the v. Koons: A Fair Use Standard for Appropriation, 93 41 Id. overall effect of each is not transformative; COLUM. L. REV. 1473, 1477 (1993) [hereinafter Ames]; 42 Id. at 707 (citations omitted). William M. Landes, Copyright, Borrowed Images and 43 [Guetta’s] works remain at their core pictures Id. at 708. Appropriation Art: An Economic Approach, John M. 44 Id. at 709-10 (citations omitted). 64 of Sid Vicious.” As a result, the court held Olin Law & Economics Working Paper No. 113 (2d 45 Id. at 710. that the works were not sufficiently trans- Series, Dec. 2002). For a further discussion of copyright 46 Id. (citations omitted). formative. After addressing the other three tensions in the art world, see Randy Kennedy, Apropos 47 Id. at 709. factors, the court concluded that Guetta could Appropriation, NEW YORK TIMES, Dec. 28, 2011. 48 Id. at 712. The court noted that the district court 2 not establish a fair use defense.65 In short, Ames, supra note 1, at 1477. could determine whether Gagosian should be held 3 Id. at 1478. liable, directly or secondarily, for the five remaining Cariou epitomizes a trend in recent case law 4 Id. at 1479. works, assuming those were determined to be infring- elevating transformativeness as the most 5 Cariou v. Prince, 714 F. 3d 694, 705 (2d Cir. 2013). ing. Id. determinative factor in the fair use analysis. 6 Id. at 694. 49 Id. at 712. 7 Id. at 698. 50 Id. The Five Remaining Paintings 8 Rogers v. Koons, 960 F. 2d 301, 305 (2d Cir. 1992). 51 Id. at 713. 9 Id. at 309-10; cf. Campbell v. Acuff-Rose, 510 U.S. 52 Id. at 714. The Second Circuit also vacated the On June 10, 2013, the Second Circuit denied 569 (1994) (citing Pierre Leval, Toward a Fair Use lower court’s sweeping injunctive relief as to the remain- Cariou’s petition to have the case reheard Standard, 103 HARV. L. REV. 1105, 1111 (1990)). ing five works: “In the event that Prince and Gagosian by the panel, or, in the alternative, for a 10 Koons, 960 F. 2d at 310. The court also found that are ultimately held liable for copyright infringement, rehearing of the case en banc.66 Cariou filed Koons had used the “identical expression of the idea and in light of all parties’ agreement at oral argument a petition for writ of certiorari to the U.S. that Rogers created.” Id. at 308. that the destruction of Prince’s artwork would be 11 Blanch v. Koons, 467 F. 3d 244, 247-48 (2d Cir. improper and against the public interest, a position with Supreme Court.67 He argued in his petition 2006). which we agree, the district court should revisit what that the Court should immediately review 12 Id. injunctive relief, if any, is appropriate.” Id. at 712, n.5. the case, because the “I know it when I see 13 Id. at 248. 53 Id. it” approach to fair use is untenable and 14 Id. at 253 (internal citations omitted). 54 Neil Weinstock Netanel, “Making Sense of Fair “[d]etermining whether a secondary use is 15 Id. at 252-53. Use,” 15 LEWIS & CLARK L. REV. 715, 741 (2011). 16 Mattel Inc. v. Walking Mountain Prods., 353 F. 3d 55 transformative based solely upon judicial Id. at 740. 792, 796, 806 (9th Cir. 2003). 56 Id. at 741. ‘observation’ rather than upon the testimony 17 Id. at 806. 57 See Perfect 10, Inc. v. Yandex N.V., No. 12-1521- of the secondary user, is necessarily subjec- 18 Id. at 801-02. WHA, 2013 WL 4777189, at *5-6 (N.D. Cal. Sep. 6, tive and unworkable.”68 The Court denied 19 Elvis Presley Enters., Inc. v. Passport Video, 349 F. 2013) (summary judgment granted for defendant on fair the petition.69 3d 622, 628-29 (9th Cir. 2003). use defense where defendant used thumbnail versions 20 Cariou was left to fight Prince in the dis- Id. at 629 (emphasis added). of plaintiff’s images to point to source of informa- 21 Cariou v. Prince, 784 F. Supp. 2d 337, 344 (S.D. N.Y. tion); Kienitz v. Sconnie Nation LLC, No. 12-464, trict court over the remaining five paintings. 2011). Prince was able to sell his works for millions of ____ F. Supp. 2d ____, 2013 WL 4197454, at *7 Cariou filed a memorandum of law applying dollars, but Cariou’s show based on the photographs in (W.D. Wisc. Aug. 15, 2013) (summary judgment the Second Circuit’s test for fair use to the Yes Rasta was canceled when the gallery owner deter- granted for defendant; court noted “robust transfor- remaining five paintings, arguing that Prince’s mined that the exhibition of Cariou’s work could be per- mative nature” of defendant’s work); Faulkner Literary use of his photos was not transformative.70 ceived as an attempt to capitalize on Prince’s success. The Rights, LLC v. Sony Pictures Classics Inc., No. 12-100, gallery owner did not want to exhibit work that had been ____ F. Supp. 2d ____, 2013 WL 3762270, at *5 Prince recently filed a memorandum of law “done already” at another gallery. Id. at 353. (N.D. Miss. July 18, 2013) (transformativeness strongly in opposition, arguing that summary judg- 22 Id. at 344. established); Ascend Health Corp. v. Wells, No. 12- ment with respect to the remaining five paint- 23 Id. 00083, 2013 WL 1010589, *13-14 (E.D. N.C. Mar. ings should not be granted, because a rea- 24 Id. at 350-51. 14, 2013) (The plaintiff, a psychiatric hospital, sued the sonable jury could find that the remaining 25 Id. at 342-43. The court likewise found that Gagosian defendant for posting copyrighted images in a blog crit- and his gallery were liable for direct, contributory, paintings did make fair use of Cariou’s pho- ical of the hospital; the court held that the use was trans- and vicarious infringement. Id. at 354. The court per- formative.); SOFA Ent’mt, Inc. v. Dodger Prods., Inc., 71 tographs. In support of his opposition, manently enjoined defendants from infringing Cariou’s 709 F. 3d 1273, 1278 (9th Cir. 2013) (The work of the Prince has submitted two expert declara- works and ordered delivery of all infringing copies defendant was transformative.). tions that opine on the “artistic and creative within 10 days, explaining that owners of the appro- 58 Seltzer v. Green Day, Inc., 725 F. 3d 1170 (9th Cir. purpose” of the remaining paintings and priated art must be advised the art violates Cariou’s 2013). 59 how that purpose contrasts with Cariou’s copyrights. Id. at 355-56. Id. at 1175, 1179. 26 Id. at 346 (citing Campbell v. Acuff-Rose, 510 U.S. 60 Id. at 1176. book Yes Rasta.72 569, 575 (1994) (quoting U.S. CONST. art. I, §8, cl. 8)). 61 Id. at 1179. Whatever the final result of Cariou and 27 Cariou, 784 F. Supp. 2d at 347 (citing 17 U.S.C. 62 Morris v. Guetta, No. 12-00684, 2013 WL 440127 Prince’s dispute, one thing is clear. For now, §107(1)-(4)); Campbell, 510 U.S. at 575, 577-78 (deter- (C.D. Cal. Feb. 4, 2013). the most important inquiry in assessing a mination of fair use defense is context-sensitive and calls 63 Id. at *1. 64 potential fair use defense is to analyze whether for case-by-case analysis). Id. at *8. 28 Cariou, 784 F. Supp. 2d at 347. 65 Id. at *13. or not the allegedly infringing work is trans- 29 Id. at 348. 66 Cariou v. Prince, No. 11-1197, Docket No. 273 (2d formative as a matter of law. If not, a fair use 30 Id. at 348-49. Cir. June 10, 2013). defense will likely fail. But reaching a deter- 31 Id. at 348. 67 Petition for a writ of certiorari, Cariou v. Prince, No. mination of transformativeness remains eas- 32 Id. at 349. 13-261 (U.S. Aug. 21, 2013). 33 ier said than done, with courts taking a vari- Id. 68 Id. at 18. 34 Id. at 355-56. 69 See Cariou v. Prince, No. 13-261, 134 S. Ct. 618 ety of approaches. Although the Supreme 35 Cariou, 784 F. Supp. 2d 337, appeal docketed, No. (Nov. 12, 2013). Court has declined the opportunity to further 11-1197 (2d Cir. Mar. 28, 2011). 70 Cariou v. Prince, No. 08-cv-11327, Docket No. 85 delineate a cogent legal test for determining 36 Joint Brief and Special Appendix for Defendants- (S.D. N.Y. Aug. 1, 2013). transformativeness, appropriation art that Appellants at 39, Cariou v. Prince, No. 11-1197-cv, 71 Id., Docket No. 89. undeniably adds something new to an under- 2011 WL 5325288 (2d Cir. Oct. 26, 2011). 72 Id., Docket Nos. 91, 92.

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