A Second Circuit Nod To Appropriation Art

On April 25, 2013, the United States Court of Appeals for the Second Circuit issued a landmark decision in a closely-watched fair use copyright case, Patrick Cariou v. Richard Prince, Gagosian Gallery, Inc. and Lawrence Gagosian, holding that 25 artworks by noted appropriation artist Richard Prince, which had been marketed and sold by Gagosian Gallery, made "fair use" of and did not infringe on Patrick Cariou's copyright in his book "Yes Rasta."

This is an important victory for appropriation artists, and the galleries and museums that show their work, as the Second Circuit rejected the trial court's narrow definition of fair use, holding that secondary works need not comment on, criticize, or relate to the historical context of the original work. The Second Circuit adopted the arguments Withers Bergman LLP made to the lower court on behalf of Gagosian Gallery and Lawrence Gagosian, that fair use may be found when a secondary work is transformative; i.e., if it