Yes Rasta! Appropriate Appropriation: Second Circuit Holds That Commentary On Original Work Unnecessary For Fair Use Defense, Only Transformative Quality Required

In Cariou v. Prince, No. 11-1197-cv (2d Cir. Apr. 25, 2013), an opinion with significant importance for the art world, the U.S. Court of Appeals for the Second Circuit clarified what is required for a defendant's entitlement to the "fair use" defense to a claim of copyright infringement, holding that the law does not require that a secondary use comment on the original artist or work, or popular culture, but only that the secondary work be "transformative."

In 2000, photographer Patrick Cariou published a book entitled Yes Rasta, featuring portraits of Rastafarians shot during his years in Jamaica, which enjoyed modest sales and distribution. Years later, well-known appropriation artist Richard Prince, in a series of paintings and collages, incorporated to varying extents several of Cariou's Yes Rasta portraits into his works. Prince's work for decades has involved taking others' photographs and other images and integrating them into his paintings and collages in