Cariou v. Prince

Filing 11

FORM C, on behalf of Appellant Lawrence Gagosian and Gagosian Gallery, Inc., FILED. Service date 04/08/2011 by email, CM/ECF.[258399] [11-1197]

ADDENDUM A
DESCRIPTION OF THE NATURE OF THE ACTION
AND THE RESULT BELOW
On December 30,2008, Plaintiff-Appellee, Patrick Cariou, ("Cariou") filed a
complaint against Defendants-Appellants Richard Prince ("Prince"), Gagosian Gallery,

Inc. ("Gagosian Gallery") and Lawrence Gagosian ("Gagosian") (collectively,
"Defendants") for copyright infringement of Cariou' s compilation of photographs

published in a book entitled Yes Rasta. Prince, a well-known appropriation artist,
incorporated portions of Cariou' s photographs (the "Photographs") in paintings (the

"Paintings") that were par of a series entitled, Canal Zone. Gagosian Gallery, which

represents Prince in marketing his arork, and Gagosian, the principal owner of
Gagosian Gallery, were sued as direct copyright infringers and as vicarious and
contributory copyright infringers, by reason of their creation and publication of an
exhibition catalogue which contained reproductions of the Paintings and original

photographs of Prince working in the studio and their use of certain of the Paintings in
marketing and press materials.

Cariou sought damages, permanent injunctive relief and other equitable remedies
under the Copyright Act. Defendants asserted the defense of

fair use under 17 U.S.C. §

107, arguing, among other things: that the Paintings were created for an entirely new and
different expressive purose and meaning, which, when coupled with the other elements

Prince added to his creations, resulted in secondary works that were transformative; that
greater leeway should be afforded where, as here, the original works were, according to
plaintiffs own description of

the Photographs, factual and informative in nature; the

amount and substantiality of the Photographs Prince used was reasonable in light of his

document number: NY23802/0005-US-1075666/5

different purpose; and that the Paintings were not offered as a substitute, and therefore
did not ursur the market, for the Photographs. At the completion of

factual discovery,

the parties, at the direction of the District Cour, moved for summary judgment on the
issues of liability (i. e., the claim of infringement and the defense of fair use).

On March 18, 2011, the Honorable Deborah A. Batts, of the United States District

New York, denied Defendants' joint motion for

Court for the Southern District of

summary judgment on the issues of copyright infringement and fair use, but granted their

motion dismissing the claim for conspiracy. In the same decision, Judge Batts granted
Cariou's motion for summar judgment on the issues of copyright infringement and
Defendants' fair use. The Court further: (a) permanently enjoined Defendants from
further infringing Cariou's compilation copyright in Yes Rasta; (b) ordered Defendants to

deliver to Cariou, within 10 days, all infringing copies of the Photographs, including the
Paintings and unsold copies of

the Canal Zone exhibition book, in their custody,

possession, or control, for impoundment, destruction, or other disposition; and (c)

ordered Defendants to notify in writing any current or future owner of the Paintings of
who they are or become aware, that the Paintings infringe Cariou's copyright and cannot
be publicly displayed.

Defendants now appeal this decision to the United States Cour of Appeals for the
Second Circuit.

document number: NY23802/0005-US-1075666/5

2

WITHERS BERGMAN LLP
Hollis Gonerka Bart (HB-8955)
Dara G. Hammerman (DH-1591)
Azmina Jasani (AJ-4161)

.)

430 Park Avenue, ioth Floor

i, -1

f;

New York, New York 10022
212.848.9800 (p)
212.848.9888 (1)
Attorneys for Defendants Gagosian Gallery, Inc.

and Lawrence Gagosian

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------ ------------------------------------ -------- )(
08 Civ 11327 (DAB) (ECF)

PATRICK CARIOU,

Plaintiff,
-against -

NOTICË OF JOINT APPEAL
RICHARD PRINCE, GAGOSIAN GALLERY, INC.,
LA WRENCE GAGOSIAN, and RIZZOLI
INTERNATIONAL PUBLICA nONS, INC,
Defendants.
---- ---- ----- - ------------- ------- ---- ------------------------------ )(

Notice is hereby given that defendants Richard Prince, Gagosian Gallery, Inc., and

Lawrence Gagosian ("Defendants") hereby jointly appeal to the United States Court of Appeals

for the Second Circuit from Memorandum Order of ths Court, dated March 18, 201 I, pursuant
to 28 U.S.C. § 1292(a).
A copy of

the Cour's March 18,2011 Memorandum and Order is

Dated: New York, New York
March 25, 2011

anexed hereto.

"ff'k~~
~ Gonerka Bar

Withers Bergman LLP
430 Park Avenue, 10th Floor

New York, New York 10022
[phone]
Attorneys for Defendants-Appellants

Gagosian Gallery, Inc. and Lawrence Gagosian
document number. NY23802/0005-US.1059683/1
document number: NY23802f0005.US.106702711

.~.

Jonathan Schiler

George Carpinello
Joshua Schiler

Boies, Schiller & Flexner LLP
575 Lexington Avenue, 7th Floor
New York, NY 10022

:::2~ ~ ~U~
Attorneys for Defendant-Appellant
Richard Prince

SERVICE OF PROCESS TO:

Daniel J. Brooks
Schnader, Harson, Segal & Lewis
140 Broadway, Suite 3100
New York, NY 10005-1101
[phone]

Eric A. Boden
Schnader, Harison, Segal & Lewis
140 Broadway, Suite 3100
New York, NY 10005-1101
[phone]
Attorneys for PlaintifAppellee

Patrick Cariou

2

document number. NY23802f0005-US-1059683/1
document number. NY23802f0005-US-1067027/1

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l'age 1 or 1£1

APPEAL, ECF

U.S. District Court
New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:08-cv-11327-DAB
Southern District of

Cariou v. Prince et al
Assigned to: Judge Deborah A. Batts
Cause: 28:1338 Copyright Infringement

Date Filed: 12/30/2008
Jur Demand: Both

Nature of Suit: 820 Copyright

Jurisdiction: Federal Question

Plaintiff
Patrick Cariou

represented by Daniel J. Brooks
Schnader, Harison, Segal & Lewis

140 Broadway, Suite 3 100
New York, NY 10005-1101
[phone]
Fax: [phone]
Email: dbrooks(fschnader.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Eric Alwin Boden
McDermott, Wil & Emery, LLP (NY)
340 Madison Avenue
New York, NY 10017
[phone]
Fax: [phone]
Emai1: eboden(fschnader.com
ATTORNEY TO BE NOTICED

V.

Defendant
Richard Prince

represented by Steven Michael Hayes
Hany Conroy Bierstein Sheridan Fisher
& Hayes, LLP
1 12 Madison Avenue
New York, NY 10016
[phone]
Fax: [phone]
Email: shayes(fhanlyconroy.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

George F. Carpinello
Boies, Schiler & Flexner LLP (FL)
401 East Las Olas Boulevard

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Suite 1200
Fort Lauderdale, FL 33301

5184340600
Fax: [phone]

Email: gcarinello(£bsflp.com
AITORNEY TO BE NOTICED
Jonathan David Schiler

Boies Schiler & Flexner LLP
575 Lexington Avenue
New York, NY 10022
(212) 446-23002388x
Fax: [phone]
Email: jschiler(£bsflp.com
AITORNEY TO BE NOTICED
Joshua Schiler

Boies, Schiler & Flexner, LLP(NYC)
575 Lexington Avenue
New York, NY 10022
[phone]
Fax: [phone]
Email: jischiler(£bsflp.com

AITORNEY TO BE NOTICED

Defendant
Gagosian Gallery, Inc.

represented by Holls Anne Bart
Withers Bergman, LLP
430 Park Avenue, 10th FIr.

New York, NY 10022
[phone]
Fax: [phone]

Email: hollis.bar(£withers.us.com
LEAD AITORNEY
AITORNEY TO BE NOTICED

Dara Gilwit Hammerman
Withers Bergman, LLP
430 Park Avenue, 10th FIr.

New York, NY 10022
(212)-848-9802
Fax: [phone]
Email:
dara.hamerman(£withers. uS.com

AITORNEY TO BE NOTICED

Defendant
Lawrence Gagosian

represented by Holls Anne Bart
(See above for address)
LEAD AITORNEY

- -

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ATTORNEY TO BE NOTICED

Dara Gilwit Hammerman
(See above for address)
ATTORNEY TO BE NOTICED

Defendant
Rizzoli International Publications,

Inc.
TERMINATED: 02/05/2010

represented by Jesse Alan Epstein
Weisman Celler Spett & Modlin P. C.
445 Park Avenue
New York, NY 10022
[phone]
Email: jepsteinêwcsm445.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Cross Claimant
Rizzoli International Publications,
Inc.
TERMINATED: 02/05/2010

represented by Jesse Alan Epstein
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.

Cross Defendant
Richard Prince
TERMINATED: 03/19/2010

represented by Steven Michael Hayes
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Cross Defendant
Gagosian Gallery, Inc.

represented by Holls Anne Bart
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Dara Gilwit Hammerman
(See above for address)
ATTORNEY TO BE NOTICED

Cross Defendant
Lawrence Gagosian

represented by Holls Anne Bart
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Dara Gilwit Hammerman
(See above for address)
ATTORNEY TO BE NOTICED

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Cross Claimant
Richard Prince
TERMINATED: 03/19/2010

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represented by Steven Michael Hayes
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.

Cross Defendant
Rizoli International Publications,

Inc.
TERMINATED: 02/05/2010

represented by Jesse Alan Epstein
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

12/30/2008

1

COMPLAINT against Richard Prince, Gagosian Gallery, Inc., Lawrence
Gagosian, Rizzoli International Publications, Inc. (Filng Fee $ 350.00, Receipt
Number 673608)Document filed by Patrick Cariou.(ama) (Entered:
01/05/2009)

12/30/2008

SUMMONS ISSUED as to Richard Prince, Gagosian Gallery, Inc., Lawrence
Gagosian, Rizzoli International Publications, Inc. (ama) (Entered: 01/05/2009)

12/30/2008

Magistrate Judge Douglas F. Eaton is so designated. (ama) (Entered:
01/05/2009)

12/30/2008

Case Designated ECF. (ama) (Entered: 01/05/2009)

12/30/2008

Mailed notice to Register of Copyrights to report the filing of

this action. (ama)

(Entered: 01/05/2009)

01/14/2009

2

AFFIDAVIT OF SERVICE. Service was accepted by Chad Matice
State of
the State of
New York). Document
(Authorized Agent for Secretar of
fied by Patrick Cariou. (Brooks, Daniel) (Entered: 01/14/2009)

01/14/2009

J

AFFIDAVIT OF SERVICE. Service was accepted by Chad Matice
State of
the State of
New York). Document
(Authorized Agent for Secretary of
fied by Patrick Cariou. (Brooks, Daniel) (Entered: 01/14/2009)

01/14/2009

1:

01/14/2009

~

AFFIDAVIT OF SERVICE. Document fied by Patrick Cariou. (Brooks,
Daniel) (Entered: 01/14/2009)

01/14/2009

Q

AMENDED COMPLAINT amending 1 Complaint against Richard Prince,
Gagosian Gallery, Inc., Lawrence Gagosian, Rizzoli International Publications,
Inc.. Document filed by Patrick Cariou. Related document: 1 Complaint filed
by Patrick Cariou.( dIe) (Entered: 01/15/2009)

AFFIDAVIT OF SERVICE. Document filed by Patrick Cariou. (Brooks,
Daniel) (Entered: 01/14/2009)

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STIPULATION AND ORDER: It is hereby stipulated and agreed by and
between the paries that the time for defendants' to answer, move, or otherwise

respond to the amended complaint is extended to and including 2/17/2009.
(Signed by Judge Deborah A. Batts on 1/29/2009) Gpo) (Entered: 01/30/2009)
02/1 7/2009

-s

STIPULATION AND ORDER: It is hereby stipulated and agreed by and
between the paries that the time for defendant Rizzoli International
Publications, Inc. to answer, move or otherwise respond to the amended
complaint is extended to March 3,2009. (Signed by Judge Deborah A. Batts
on 2/17/2009) Gpo) (Entered: 02/18/2009)

02/17/2009

2

STIPULATION AND ORDER: It is hereby stipulated and agreed by and
between the paries that the time for defendants Richard Prince, Gagosian
Gallery, Inc., and Lawrence Gagosian, to answer, move or otherwise respond
to the amended complaint is extended to March 3,2009. (Signed by Judge
Deborah A. Batts on 2/17/2009) Gpo) (Entered: 02/18/2009)

03/03/2009

10

NOTICE OF APPEARANCE by Steven Michael Hayes on behalf of Richard
Prince (Hayes, Steven) (Entered: 03/03/2009)

03/03/2009

11

RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate
Parent. Document filed by Richard Prince.(Hayes, Steven) (Entered:
03/03/2009)

03/03/2009

12

ANSWER to Amended Complaint with JURY DEMAND. Document fied by
Richard Prince. Related document: Q Amended Complaint filed by Patrick
Cariou.(Hayes, Steven) (Entered: 03/03/2009)

03/03/2009

U

NOTICE OF APPEARANCE by Holls Anne Bar on behalf of Gagosian
Gallery, Inc., Lawrence Gagosian (Bart, Holls) (Entered: 03/03/2009)

03/03/2009

14

ANSWER to Amended Complaint. Document filed by Gagosian Gallery, Inc.,
Lawrence Gagosian. Related document: Q Amended Complaint filed by Patrick
Cariou.(Bar, Holls) (Entered: 03/03/2009)

03/04/2009

U

NOTICE OF APPEARANCE by Dara Gilwit Hamerman on behalf of
Gagosian Gallery, Inc., Lawrence Gagosian (Hammerman, Dara) (Entered:
03/04/2009)

03/06/2009

lQ

RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate
Parent. Document fied by Gagosian Gallery, Inc., Lawrence Gagosian.
(Hamerman, Dara) (Entered: 03/06/2009)

03/17/2009

17

03/17/2009

l8

03/17/2009

12

RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying RCS
MediaGroup S.p.A as Corporate Parent. Document fied by Rizzoli
International Publications, Inc..(Epstein, Jesse) (Entered: 03/17/2009)
NOTICE OF APPEARANCE by Jesse Alan Epstein on behalf of
Rizzoli
International Publications, Inc. (Epstein, Jesse) (Entered: 03/17/2009)

ANSWER to Amended Complaint., CROSSCLAIM against Richard Prince,
Gagosian Gallery, Inc., Lawrence Gagosian. Document filed by Rizzoli
International Publications, Inc.. Related document: Q Amended Complaint fied
by Patrick Cariou.(Epstein, Jesse) (Entered: 03/17/2009)

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03/23/2009

20

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ANSWER to Crossclaim. Document fied by Gagosian Gallery, Inc., Lawrence
Gagosian.(Bar, Holls) (Entered: 03/23/2009)

03/24/2009

21

ANSWER to Crossclaim., CROSSCLAIM against Rizzoli International
Publications, Inc.. Document fied by Richard Prince.(Hayes, Steven) (Entered:
03/24/2009)

04/30/2009

22

RULE 26 DISCLOSURE.Document filed by Patrick Cariou.(Brooks, Daniel)
(Entered: 04/30/2009)

04/30/2009

23

RULE 26 DISCLOSURE.Document fied by Richard Prince.(Hayes, Steven)
(Entered: 04/30/2009)

06/19/2009

24

SCHEDULING ORDER: Except for good cause explicitly set forth by letter
and shown, all discovery, including expert discovery, shall be commenced in
time to be completed by 2/1/10. The cour expects discovery to be completed
within 60 days of the first scheduling conference unless, after the expiration of
that 60 day period, all counsel stipulate that an additional period of
time (not to
exceed 60 more days) is needed to complete discovery, and the Court approves
such extension. A par contemplating making a dispositive motion must

notify opposing counsel by 3/1/10. Proposed Requests to Charge and Proposed
Voir Dire shall be submitted by 3/26/10. Joint Pre-trial Statement ("JPTS"): A
JPTS shall be submitted by 3/26/10. The JPTS shall conform to the Court's

Individual Practices and Supplemental Trial Procedure Rules. Memoranda of
Law addressing those issues raised in the JPTS shall be submitted by 3/26/10.
Responses to the Memoranda shall be submitted by 4/9/10. There shall be no
replies. Dual track mediation and discovery. Private mediation split 4 ways.
(Signed by Judge Deborah A. Batts on 6/19/2009) (rw) (Entered: 06/19/2009)
08/1 0/2009

25

STIPULATED PROTECTIVE ORDER...regarding procedures to be followed
that shall govern the handling of confdential materiaL... (Signed by Judge
Deborah A. Batts on 8/10/2009) Ufe) (Entered: 08/1 0/2009)

02/05/2010

26

STIPULATION AND ORDER OF DISMISSAL: All claims by plaintiff
Patrick Cariou against Rizzoli International Publications, Inc. are dismissed
with prejudice and without costs to any par as against the other. (Signed by
Judge Deborah A. Batts on 2/5/10) (dIe) (Entered: 02/05/2010)

02/05/20 I 0

27

ENDORSED LETTER addressed to Judge Deborah A. Batts from Steven M.
Hayes dated 1/27/10 re: counsel for defendants request an extension of

the

discovery time period. ENDORSEMENT: Denied. (Signed by Judge Deborah
A. Batts on 2/5/10) (dIe) (Entered: 02/05/2010)
03/19/2010

28

ORDER: The Cour is in receipt of and has reviewed Plaintiffs letters dated
Februar 8 and February 19,2010 and Defendants' letter dated February 17,

2010. Both Paries request permission to fie for summar judgment. The Court
hereby grants Paries' requests to cross move for sumar judgment. Plaintiff
and Defendants shall fie and serve their moving papers, respectively, within
45 days of

the date of

this Order. Each Par shall respond within 30 days of

being served with the opposing side's moving papers. Paries may reply within
10 days of being served with a response, at which time the motions wil be
fully-submitted. (Signed by Judge Deborah A. Batts on 3/19/2010) (tro)
Modified on 3/30/2010 (tro). (Entered: 03/22/2010)

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Page 7 of 14

STIPULA nON AND ORDER OF DISMISSAL: NOW, THEREFORE, IT IS
HEREBY ORDERED, whereas no par hereto is an infant or incompetent
person for whom a committee has been appointed and no person not a part

the action, upon the Stipulation and
Agreement between the undersigned attorneys of record for the Defendant
Richard Prince and the undersigned attorneys of record for Defendant Rizzoli
has an interest in the subject matter of

the

International Publications, Inc., that, pursuant to Rule 41 (a)(2)and (c) of

Federal Rules of Civil Procedure, all cross-claims by Rizzoli International
Publications, Inc., against Richard Prince are dismissed 'With prejudice, and

without costs to any par as against the other. (Signed by Judge Deborah A.
Batts on 3/19/2010) Gs) (Entered: 03/22/2010)
04/06/2010

30

ENDORSED LETTER: addressed to Judge Deborah A. Batts from Holls
Generka Bar dated 3/26/2010 re: Counsel for defendant request that the Court

amend its Order dated March 19,2010 by adjouring the deadline for the
parties to fie their respective motions for sumar judgment from Monday,
May 2, 2010 to Friday, May 7, 2010. ENDORSEMENT: So Ordered. (Signed
by Judge Deborah A. Batts on 4/6/2010) Gs) (Entered: 04/06/2010)
04/23/2010

n

ENDORSED LETTER addressed to Judge Deborah A. Batts from Danel 1.
requests leave of
the Cour to file
Brooks dated 4/21/10 re: counsel for plaintiff
in hard copy two books which wil be attached as exhibits to the attorney
declaration in support of plaintiffs sumary judgment motion to be fied with
the Cour by May 7, 2010. We futher request leave to dispense with service on
the books, as, during discovery, it came to our attention
defendants of copies of
that defendants were in possession of both of these books and, therefore, wil
the books. ENDORSEMENT:
not be prejudiced by not receiving service of
Granted. (Signed by Judge Deborah A. Batts on 4/23/1 0) (PI) (Entered:

04/23/2010)

ENDORSED LETTER addressed to Judge Deborah A. Batts from Steven M.
the date for fiing
Hayes dated 5/5/10 re: counsel requests an adjournment of
the motions for sumary judgment from May 7 until May 14,2010.
ENDORSEMENT: Granted. (Motions due by 5/5/2010.) (Signed by Judge
Deborah A. Batts on 5/5/10) (djc) (Entered: 05/05/2010)

05/05/2010

32

05/07/2010

33 ' ENDORSED LETTER addressed to Judge Deborah A. Batts from Holls

Gonerka Bar dated 5/3/2010 re: Requesting permission to submit a joint
memorandum of law in support of defendants' motion for sumar judgment;

Requesting leave of the Cour to file in hard copy relevant musical recordings
photocopies of Yes Rasta book, and other copies of images which wil be
attched as exhbits to affidavits in support of defendants' moving brief and

which are too large to submit electronically via ECF; and Requesting that the
Cour treat all of the names of Gagosian Gallery's clients as confidentiaL.

ENDORSEMENT: Denied, Granted and Denied respectively. (Signed by
Judge Deborah A. Batts on 5/7/2010) Gpo) Modified on 5/17/2010 Gpo).
(Entered: 05/1 0/20 1 0)

05/14/2010

34

MOTION for Sumary Judgment. Document filed by Patrick Cariou.(Brooks,
Daniel) (Entered: 05/14/2010)

05/14/2010

35

RULE 56. I STATEMENT. Document fied by Patrick Cariou. (Brooks,

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Daniel) (Entered: 05/14/2010)
05/14/2010

36

DECLARTION of

Eric Doeringer in Support re: 34 MOTION for Summary

Judgment.. Document fied by Patrick Cariou. (Attachments: # l Exhibit A, # 2.

Exhbit B, # J. Exhibit C)(Brooks, Daniel) (Entered: 05/14/2010)
05/14/2010

37

MEMORANDUM OF LA W in Support re: 34 MOTION for Sumary
Judgment. Document filed by Patrick Cariou. (Brooks, Daniel) (Entered:

05/14/2010)

05/14/2010

38

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Danel 1. Brooks in Support re: 34 MOTION for Sumar Judgment.
Document filed by Patrick Cariou. (Attachments: # l Exhibit A, # 2. Exhibit B,

# J. Exhbit C, # 1: Exhibit D, # ~ Exhibit E part 1, # Q Exhibit E part 2, # 1
Exhibit F, # .8 Exhibit G, # 2 Exhibit H, # lQ Exhibit I, # II Exhibit J, # 12
Exhibit K, # 11 Exhibit L, # 14 Exhibit L-1, # 12 Exhibit L-2)(Brooks, Daniel)
Modified on 5/18/2010 Gar). (Entered: 05/14/2010)

05/14/2010

39

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel 1. Brooks (part 2) in Support re: 34 MOTION for Sumary Judgment.
Document filed by Patrick Cariou. (Attachments: # l Exhibit M, # 2. Exhibit

M-l par 1, # J. Exhibit M-1 par 2, # 1: Exhibit M-2, # ~ Exhibit M-3, # Q
Exhibit M-4, # 1 Exhibit N par 1, # .8 Exhbit N part 2, # 2 Exhibit N part 3, #
10 Exhibit N par 4)(Brooks, Daniel) Modified on 5/18/2010 Gar). (Entered:
05/14/2010)
05/14/2010

40

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARTION of
Daniel 1. Brooks (part 3) in Support re: 34 MOTION for Sumary Judgment.
Document filed by Patrick Cariou. (Attachments: # l Exhibit N part 5, # 2.
Exhibit N part 6, # J. Exhibit N part 7, # 1: Exhibit N part 8, # ~ Exhibit N part
9, # Q Exhibit N part 10, # 1 Exhibit N part 11)(Brooks, Daniel) Modified on
5/18/2010 Gar). (Entered: 05/14/2010)

05/14/2010

41

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel
1. Brooks (part 4) in Support re: 34 MOTION for Sumar Judgment.
Document fied by Patrick Cariou. (Attachments: # l Exhibit N part 12, # 2.
Exhibit N par 13, # J. Exhibit N par 14, # 1: Exhibit N part 15, # ~ Exhibit N
par 16, # Q Exhibit N par 17, # 1 Exhibit N par 18)(Brooks, Daniel) Modified
on 5/18/2010 Gar). (Entered: 05/14/2010)

05/14/2010

42

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel 1. Brooks (par 5) in Support re: 34 MOTION for Summary Judgment.
Document filed by Patrick Cariou. (Attachments: # l Exhibit N part 19, # 2.
Exhibit N part 20, # J. Exhibit 0, # 1: Exhbit P, # ~ Exhibit Q, # Q Exhibit R, #

1 Exhibit S, # .8 Exhbit T par 1, # 2 Exhibit T par 2, # lQ Exhibit T part 3, #
II Exhbit T part 4)(Brooks, Daniel) Modified on 5/18/2010 Gar). (Entered:

05/14/2010)

05/14/2010

43

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel J. Brooks (part 6) in Support re: 34 MOTION for Sumary Judgment.
Document fied by Patrick Cariou. (Attachments: # l Exhibit U part 1, # 2.
Exhibit U part 2, # J. Exhibit U part 3, # 1: Exhbit U part 4, # ~ Exhibit U part
5, # Q Exhibit U part 6, # 1 Exhibit U part 7)(Brooks, Daniel) Modified on

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Page 9 of 14

5/18/2010 Gar). (Entered: 05/14/2010)

05/14/2010

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel J. Brooks (part 7) in Support re: 34 MOTION for Sumary Judgment.
Document fied by Patrick Cariou. (Attachments: # l Exhibit U part 8, # 2

44

Exhibit U part 9, # J Exhibit U part 10, # ~ Exhibit U part 11, # S- Exhibit U

par 12, # Q Exhibit U part 13, # 1 Exhibit U part 14, # .8 Exhibit U part 15)

(Brooks, Daniel) Modified on 5/18/2010 Gar). (Entered: 05/14/2010)
05/14/2010

MOTION for Sumary Judgment. Document filed by Richard Prince,
Gagosian Gallery, Inc., Lawrence Gagosian. Responses due by 6/14/2010(Bar,

45

Holls) (Entered: 05/14/2010)

05/14/2010

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel J. Brooks (part 8) in Support re: 34 MOTION for Sumary Judgment.
Document fied by Patrick Cariou. (Attachments: # l Exhbit U par 16, # 2
Exhibit V, # J Exhibit V-I, # ~ Exhibit W, # S- Exhibit)(, # Q Exhibit Y part 1,
# 1 Exhibit U part 2, # .8 Exhibit U part 3, # 2 Exhibit Y part 4, # 10 Exhibit Y

46

par 5)(Brooks, Daniel) Modified on 5/18/2010 Gar). (Entered: 05/14/2010)

05/14/2010

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel J. Brooks (part 9) in Support re: 34 MOTION for Summary Judgment.
Document fied by Patrick Cariou. (Attachments: # l Exhibit Y part 6, # 2

47

Exhibit Y part 7, # J Exhibit Y part 8, # ~ Exhibit Y part 9, # S- Exhibit Y part

10, # Q Exhibit Y part 11, # 1 Exhibit Y part 12)(Brooks, Daniel) Modified on
5/18/2010 Gar). (Entered: 05/14/2010)

05/14/2010

AFFIDA VIT of Holls Gonerka Bar in Support re: 45 MOTION for Sumary

48

Judgment. Document fied by Richard Prince, Gagosian Gallery, Inc.,

Lawrence Gagosian. (Attachments: # l Exhibit A, # 2 Exhibit B, # J Exhibit C,
# ~ Exhibit D, # S- Exhibit E, # Q Exhibit F, # 1 Exhibit G - Par 1 of2, # .8

Exhibit G - Par 2 of2, # 2 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12
Exhibit K, # 11 Exhibit L, # 14 Exhbit M, # 12 Exhibit N, # 16 Exhibit 0, #
17 Exhibit P, # II Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, #

22 Exhbit U - Part 1 of 2, # 23 Exhibit U - Part 2 of 2, # 24 Exhibit V, # 25

Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, #
30 Exhibit BB, # 11 Exhibit CC, # 32 Exhibit DD, # 33 Exhibit EE)(Bar,
Holls) (Entered: 05/14/2010)

05/14/2010

AFFIDA VIT of Richard Prince in Support re: 45 MOTION for Summary

49

Judgment. Document fied by Richard Prince, Gagosian Gallery, Inc.,

Lawrence Gagosian. (Attachments: # l Exhibit A)(Bar, Holls) (Entered:
05/14/2010)
05/14/2010

MEMORANDUM OF LA W in Support re: 45 MOTION for Sumary

50

Judgment. Document filed by Richard Prince, Gagosian Gallery, Inc.,

Lawrence Gagosian. (Bar, Hollis) (Entered: 05/14/2010)
05/14/2010

s-

.

FILING ERROR - DEFICIENT DOCKET ENTRY - DECLARATION of
Daniel J. Brooks (part 10) in Support re: 34 MOTION for Sumary
Judgment.. Document filed by Patrick Cariou. (Attachments: # 1 Exhibit Y
par 13, # 2 Exhibit Y part 14, # J Exhibit Y part 15, # ~ Exhibit Y part 16, # S-

Exhbit Z, # Q Exhbit AA, # 1 Exhibit BB, # .8 Exhibit CC, # 2 Exhibit DD, #

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10 Exhibit EE, # 11 Exhibit FF, # 12 Exhibit GG, # 11 Exhibit HH, # 14
Exhibit II, # 15 Exhbit JJ, # 16 Exhibit KK, # 17 Exhibit LL, # li Exhibit
MM, # 19 Exhibit NN, # 20 Exhibit 00, # 21 Exhibit PP, # 22 Exhibit QQ, #
23 Exhibit RR, # 24 Exhbit SS)(Brooks, Daniel) Modified on 5/18/2010 Gar).

(Entered: 05/14/2010)

05/14/2010

52

RULE 56.1 STATEMENT. Document filed by Richard Prince, Gagosian
Gallery, Inc., Lawrence Gagosian. (Bar, Holls) (Entered: 05/14/2010)

05/17/2010

53

COMPOSITE EXHIBIT A TO AFFIDAVIT OF DEFENDANT RICHARD
PRICE IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY
mDGMENT (relevant photocopies of Yes Rasta book, and other copies of
images which wil be attached hereto). Document fied by Richard Prince,
Gagosian Gallery, Inc., Lawrence Gagosian. *** Accepted for fiing by the
Honorable Deborah A Batts on 5/7/10 (document #33)(mro) (Entered:
05/17/20 10)

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT
DOCKET ENTRY ERROR. Note to Attorney Daniel Brooks to RE-FILE
Motion, 43 Declaration in Support of
Document 47 Declaration in Support of
Motion, 40 Declaration in Support of Motion, 46 Declaration in Support of

05/18/2010

Motion, 44 Declaration in Support of Motion, jl Declaration in Support of

Motion, 42 Declaration in Support of
Motion, 39 Declaration in Support of
Motion, 38 Declaration in Support of
the same document in order to
Motion. ERROR(S): Multiple entries of
accommodate exhibits are not accepted. Gar) (Entered: 05/18/2010)

Motion" 41 Declaration in Support of

05/18/2010

54

Daniel J. Brooks in Support re: 34 MOTION for
Sumar Judgment. Document filed by Patrick Cariou. (Attachments: # 1
Exhibit A, # 2 Exhibit B, # L Exhibit C, # ~ Exhibit D, # ~ Exhibit E part 1, # ~
Exhibit E part 2, # 1 Exhibit F, # ~ Exhibit G, # 2 Exhibit H, # 10 Exhibit I, #
11 Exhibit J, # 12 Exhibit K, # 11 Exhibit L, # 14 Exhibit L-1 and L-2, # 15

DECLARATION of

Exhibit M to M-4, # 16 Exhibit N, # 11 Exhibit 0, # li Exhibit P, # 12 Exhibit

Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit
V and V-I, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, #
29 Exhibit AA, # 30 Exhibit BB, # 11 Exhibit CC, # 32 Exhibit DD, # 33
Exhibit EE, # 34 Exhibit FF, # 35 Exhibit GG, # 36 Exhibit HH, # 37 Exhibit
II, # 38 Exhibit JJ, # 39 Exhibit KK, # 40 Exhibit LL, # 41 Exhibit MM, # 42
Exhibit NN, # 43 Exhibit 00, # 44 Exhibit PP, # 45 Exhibit QQ, # 46 Exhibit

RR, # 47 Exhibit SS)(Brooks, Daniel) (Entered: 05/18/2010)
OS/25/2010

55

Daniel J. Brooks): "Yes Rasta" authored
by Patrick Cariou and "Canal Zone" authored by Richard Prince. Document
filed by Patrick Cariou. *** Accepted for filing by the Honorable Deborah A.
EXHIBITS(attached to Declaration of

Batts on 4/23/10, document number 31.(mro) (Entered: OS/25/2010)

06/14/2010

56

Daniel J. Brooks in Opposition re: 45 MOTION for
Sumar Judgment. Document filed by Patrick Cariou. (Attachments: # 1
Exhibit A, # 2 Exhibit B, # L Exhibit C, # ~ Exhibit D)
(Brooks, Daniel)

DECLARATION of

(Entered: 06/14/2010)

06/14/2010

57

MEMORANDUM OF LA W in Opposition re: 45 MOTION for Sumary

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Judgment. Document fied by Patrick Cariou. (Brooks, Daniel) (Entered:

06/14/2010)
06/14/2010

58

COUNTER STATEMENT TO 52 Rule 56.1 Statement. Document filed by
Patrick Cariou. (Brooks, Daniel) (Entered: 06/14/2010)

06/14/2010

59

MEMORANDUM OF LA W in Opposition re: 34 MOTION for Summary
Judgment. Document fied by Richard Prince, Gagosian Gallery, Inc.,

Lawrence Gagosian. (Bart, Holls) (Entered: 06/14/2010)
06/14/2010

60

COUNTER STATEMENT TO 35 Rule 56.1 Statement. Document filed by
Richard Prince, Gagosian Gallery, Inc., Lawrence Gagosian. (Bart, Holls)
(Entered: 06/14/2010)

06/14/2010

61

AFFIDA VIT of Holls Gonerka Bart in Opposition re: 34 MOTION for
Sumar Judgment. Document filed by Richard Prince, Gagosian Gallery,
Inc., Lawrence Gagosian. (Attachments: # l Exhibit A, # 2 Exhibit B, # .3
Exhibit C, # 1: Exhibit D, # ~ Exhibit E, # Q Exhibit F, # 1 Exhibit G, # ~

Exhibit H, #.2 Exhibit I)(Bar, Holls) (Entered: 06/14/2010)
06/14/2010

62

AFFIDA VIT of Richard Prince in Opposition re: 34 MOTION for Sumary
Judgment. Document fied by Richard Prince, Gagosian Gallery, Inc.,

Lawrence Gagosian. (Attachments: # l Exhibit A)(Bar, Hollis) (Entered:
06/14/2010)
06/24/2010

63

REPL Y MEMORANDUM OF LA W in Support re: 34 MOTION for
Summar Judgment. Document fied by Patrick Cariou. (Brooks, Daniel)
(Entered: 06/24/2010)

06/24/2010

64

RESPONSE to Defendants' Counter-Statement of

Uncontested Material Facts

Pursuant to Local Rule 56.1. Document filed by Patrick Cariou. (Brooks,

Daniel) (Entered: 06/24/2010)
06/24/2010

65

Daniel J. Brooks in Support re: 34 MOTION for
Sumar Judgment. Document filed by Patrick Cariou. (Attachments: # l
Exhibit A, # 2 Exhibit B, # .3 Exhibit C, # 1: Exhibit D part 1, # ~ Exhibit D

REPL Y AFFIRMATION of

par 2)(Brooks, Daniel) (Entered: 06/24/2010)

06/24/2010

66

06/24/2010

67

REPL Y MEMORANDUM OF LA W in Opposition re: 34 MOTION for
Sumar Judgment. Document filed by Richard Prince, Gagosian Gallery,
Inc., Lawrence Gagosian. (Bart, Holls) (Entered: 06/24/2010)
REPLY AFFIDAVIT of

Holls Gonerka Bar in Opposition re: 45 MOTION

for Sumary Judgment.. Document fied by Richard Prince, Gagosian Gallery,
Inc., Lawrence Gagosian. (Attachments: # l Exhibit A, # 2 Exhibit B, # .3
Exhibit C - Part 1 of 3, # 1: Exhibit C - Part 2 of 3, # ~ Exhibit C - Part 3 of 3)
(Bar, Holls) (Entered: 06/24/2010)

06/24/20 I 0

68

RULE 56.1 STATEMENT. Document fied by Richard Prince, Gagosian
Gallery, Inc., Lawrence Gagosian. (Bart, Holls) (Entered: 06/24/2010)

07/01/2010

69

ENDORSED LETTER addressed to Judge Deborah A. Batts from Daniel J.
Brooks dated 7/1/10 re: counsel requests that the Court direct the Clerk's

Offce to accept in hard copy and enter on the docket sheet plaintiffs notice of

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motion, Local Rule 56.1 Statement and supporting declarations and exhibits,
including my May 7, 2010 declaration, which has attached to it a number of
exhbits in color which we were unable to file through ECF.
ENDORSEMENT: Granted. (Signed by Judge Deborah A. Batts on 7/1/1 0)
(djc) (Entered: 07/02/2010)
07/07/2010

70

MOTION for Sumary Judgment pursuant to Rule 56 ofthe FRCP. Document
filed by Patrick Cariou. ***Rule 56.1 statement, Brooks Declaration,
Doeringer Declaration and Exhibits attached hereto. (Accepted for fiing in
hard copy by the Honorable Deborah A. Batts on 7/1/10, document #69)(mro)
(Entered: 07/09/2010)

03/18/2011

71

MEMORANDUM AND ORDER: Defendants shall notify in writing any
curent or futue owners of the Paintings of whom they are or become aware
that the Paintings infinge the copyright in the Photographs, that the Paintings
were not lawflly made under the Copyright Act of 1976, and that the
Paintings canot lawflly be displayed under 17 U.S.C. § 109(c). That the

Parties shall appear before this Cour on May 6, 2011 at 11 :00 am for a status
conference regarding damages, profits, and Plaintiffs costs and reasonable
attorney's fees. (Signed by Judge Deborah A. Batts on 3/18/2011) Gpo)
(Entered: 03/18/2011)

03/24/2011

72

Richard

NOTICE OF APPEARNCE by Jonathan David Schiler on behalf of

Prince (Schiller, Jonathan) (Entered: 03/24/2011)
03/24/2011

73

NOTICE OF APPEARANCE by Joshua Schiller on behalf of

Richard Prince

(Schiller, Joshua) (Entered: 03/24/2011)
03/24/2011

74

NOTICE OF APPEARANCE by George F. Carinello on behalf

of

Richard

Prince (Carpinello, George) (Entered: 03/24/2011)
03/25/2011

75

NOTICE OF APPEAL from 71 Memorandum & Order. Document
filed by Lawrence Gagosian, Gagosian Gallery, Inc., Richard Prince. Filng fee
$ 455.00, receipt number E 933143. (nd) Modified on 3/28/2011 (nd).

JOINT

(Entered: 03/28/2011)

03/28/2011

Transmission of

Notice of Appeal to the District Judge re: 75 Joint Notice of

AppeaL. (nd). (Entered: 03/28/2011)

03/28/2011
03/28/2011

Docket Sheet to US
Cour of Appeals re: 75 Joint Notice of AppeaL. (nd) (Entered: 03/28/2011)

Transmission of

Notice of Appeal and Certified Copy of

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on
Appeal Electronic Files for 1 Affidavit of Service Complaints fied by Patrick
Cariou, 14 Answer to Amended Complaint filed by Gagosian Gallery, Inc.,
Lawrence Gagosian, l Complaint filed by Patrick Cariou, 33 Endorsed Letter,
Set Deadlines/Hearings"" 68 Rule 56.1 Statement filed by Gagosian Gallery,

Inc., Richard Prince, Lawrence Gagosian, 72 Notice of Appearance fied by
Richard Prince, 48 Affdavit in Support of Motion", filed by Gagosian Gallery,
Inc., Richard Prince, Lawrence Gagosian, 25 Protective Order, 74 Notice of
Appearance filed by Richard Prince, 54 Declaration in Support of Motion""
fied by Patrick Cariou, 16 Rule 7.1 Corporate Disclosure Statement fied by
Gagosian Gallery, Inc., Lawrence Gagosian, 20 Answer to Crossclaim fied by

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Gagosian Gallery, Inc., Lawrence Gagosian, 1 Stipulation and Order, Set
Deadlines/Hearings" Q Amended Complaint filed by Patrick Cariou, 57
Memorandum of Law in Opposition to Motion filed by Patrick Cariou, 45
MOTION for Summary Judgment. filed by Gagosian Gallery, Inc., Richard
Prince, Lawrence Gagosian, n Endorsed Letter" 58 Counter Statement to
Rule 56.1 filed by Patrick Cariou, 2. Affidavit of Service Complaints fied by
Patrick Cariou, 56 Declaration in Opposition to Motion filed by Patrick Cariou,
23 Rule 26 Disclosure fied by Richard Prince, 61 Affdavit in Opposition to
Motion, fied by Gagosian Gallery, Inc., Richard Prince, Lawrence Gagosian,
26 Stipulation and Order of Dismissal, 21 Answer to Crossclaim, filed by
Richard Prince, 27 Endorsed Letter, 24 Scheduling Order"" 37 Memorandum
Motion filed by Patrick Cariou,.l Notice of Appearance
Law in Support of
of
fied by Gagosian Gallery, Inc., Lawrence Gagosian, 60 Counter Statement to
Rule 56.1 filed by Gagosian Gallery, Inc., Richard Prince, Lawrence Gagosian,
12 Answer to Amended Complaint filed by Richard Prince, 36 Declaration in
Support of Motion fied by Patrick Cariou, 62 Affidavit in Opposition to
Motion fied by Gagosian Gallery, Inc., Richard Prince, Lawrence Gagosian,
U Notice of Appearance fied by Gagosian Gallery, Inc., Lawrence Gagosian,
28 Order" 67 Reply Affdavit in Opposition to Motion, filed by Gagosian
Gallery, Inc., Richard Prince, Lawrence Gagosian, 75 Notice of Appeal fied
by Gagosian Gallery, Inc., Richard Prince, Lawrence Gagosian, 18 Notice of
Appearance filed by Rizzoli International Publications, Inc., 10 Notice of
Appearance filed by Richard Prince, 34 MOTION for Summary Judgment.
fied by Patrick Cariou, 30 Endorsed Letter, Set Deadlines/Hearings" 49
Motion filed by Gagosian Gallery, Inc., Richard Prince,
Affidavit in Support of
Lawrence Gagosian, 1 Affidavit of Service Complaints filed by Patrick Cariou,
Motion filed by Gagosian Gallery, Inc.,
Law in Support of
50 Memorandum of
Richard Prince, Lawrence Gagosian, 5. Affidavit of Service Complaints filed
by Patrick Cariou, 19 Answer to Amended Complaint, Crossclaim filed by

Rizzoli International Publications, Inc., 29 Stipulation and Order of
Dismissal", 22 Rule 26 Disclosure fied by Patrick Cariou, 63 Reply
Motion filed by Patrick Cariou, 73 Notice
Law in Support of
Memorandum of
of Appearance fied by Richard Prince, 32 Endorsed Letter, Set
Deadlines/Hearings" 64 Response filed by Patrick Cariou, 52 Rule 56.1
by Gagosian Gallery, Inc., Richard Prince, Lawrence Gagosian,
Statement filed
11 Rule 7.1 Corporate Disclosure Statement fied by Richard Prince, 17 Rule
7.1 Corporate Disclosure Statement fied by Rizzoli International Publications,
Inc., .8 Stipulation and Order, Set Deadlines/Hearings" 69 Endorsed Letter" 2
Law in
Stipulation and Order, Set Deadlines/Hearings" 59 Memorandum of
Opposition to Motion fied by Gagosian Gallery, Inc., Richard Prince,
Lawrence Gagosian, 66 Reply Memorandum of Law in Oppisition to Motion
filed by Gagosian Gallery, Inc., Richard Prince, Lawrence Gagosian, 35 Rule
56.1 Statement fied by Patrick Cariou, 71 Order, Set Deadlines/Hearings""
were transmitted to the U.S. Court of Appeals. (nd) (Entered: 03/28/2011)
04/06/2011

the
notices sent to the owners no later than 4/18/11. Should Defendants believe
that information contained in those notices requires confidential treatment,

76 ORDER defendants shall provide Plaintiff

with unedacted copies of

they shall submit a stipulated confidentiality agreement, singed by all Paries,
no later than 4/12/11. (Signed by Judge Deborah A. Batts on 4/6/11 ) (cd)

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U (Entered: 04/07/2011)

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Case 1 :08-cv-11327 -DAB Document 71

Filed 03/18/11 Page 1 of 38
USDC SDNY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - --X
PATRICK CARIOU,

DOCU"T
ELBClONIcAY 'F

DO #: .

DAT FI:.

Plaintiff,
-against-

08 Civ. 11327 (DAB)
MEMORAUM & ORDER

RICHAR PRINCE, GAGOSIAN GALLERY, INC.,
LAWRENCE GAGOSIAN, and RIZZOLI
INTERNATIONAL PUBLICATIONS, INC.

Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

DEBORA A. BATTS, United states District Judge.

This matter is now before the Court on cross-motions for

sumary judgment. Defendants Richard Prince, Gagosian Gallery,
Inc., and Lawrence Gagosian seek a determination that their use

of Plaintiff's copyrighted photographs was a fair use under the

relevant section of the Copyright Act, 17 U.S.C. §§ 107 (1) - (4),
and that Plaintiff's claim for conspiracy to violate his rights

under the Copyright Act is barred by law.1 Plaintiff seeks

sumary judgment in his favor on the issue of liability for
copyright infringement.

For reasons detailed herein, the Court finds (1) that
lNamed Defendant Rizzoli International Publications, Inc.
was voluntarily dismissed from this action by stipulation of
dismissal entered by the Court on February 5, 2010.
1

I I

..

Case 1 :08-cy-11327-DAB Document 71 Filed 03/18/11 Page 2 of 38

Defendants' infringing use of Plaintiff's copyrighted photographs

was not fair use under the Copyright Act; and (2) that

Plaintiff's conspiracy claim is barred by law. Accordingly,

Defendants' Motion is GRATED in part, and Plaintiff's Motion is

GRATED in its entirety.

I. BACKGROUN
Familiarity with the affidavits, declarations, deposition
transcripts, and other evidence before the Court is assumed, and
the undisputed facts are set forth here only briefly.

Plaintiff Patrick Cariou (Uplaintiff" or uCariou") is a
professional photographer. PC Tr. 45-46, 279-80.2 Cariou spent

time with Rastafarians in Jamaica over the course of some six
years, gaining their trust and taking their portraits. PC Tr. 34-

48. In 2000, Cariou published a book of photographs which were
taken during his time in Jamaica. Brooks Decl. Ex. L. The book,
ti tIed Yes, Rasta and released by PowerHouse Books (uYes,

Rasta"), contained both portraits of Rastafarian individuals (and
others) in Jamaica and landscape photos taken by Cariou in

2upC. Tr.," used herein, refers to the transcript of Patrick
Cariou's deposition testimony. URP Tr.," UCC Tr.," ULG Tr." and
UAM Tr." refer to the deposition transcripts of Richard Prince,
Christiane CelIe, Lawrence Gagosian, and Alison McDonald,
respectively. Similarly, URP. Aff." refers to the affidavit
filed by Richard Prince.
2

i i

Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 3 of 38

Jamaica.3 Id.
Cariou testified at length about the creative choices he
made in determining which equipment to use in taking his photos,

the staging choices he made when composing and taking individual

photos, and the techniques and processes he used (and directed

others to use) when developing the photos. See ~, PC Tr. 4966, 133 -34, 137 -38, 143 -44, 152, 169. Cariou also testified that

he was heavily involved in the layout, editing, and printing of
the Yes, Rasta book. Id.; PC Tr. at 180-208. According to the
colophon page included in Yes, Rasta, Cariou is the sole
copyright holder in the images that appear in Yes, Rasta. Brooks

Decl. Ex. L.
Defendant Richard Prince ("PrinceU) is a well-known
"appropriation artist" who has shown at numerous museums and

other institutions, including a solo show at the Guggenheim

Museum in New York City. RP Aff. " 3, 5. Defendant Gagosian
Gallery, Inc. (the "Gallery") is an art dealer and gallery which
represents Prince and markets the artworks he creates. LG Tr. 22-

25; RP Tr. 270, 294. Defendant Lawrence Gagosian ("Gagosian";
collectively with the Gallery, the "Gagosian Defendants") is the

3The portraits and landscape photographs Cariou publiShed in
Yes, Rasta are collectively referred to herein as the "Photos,U
"Cariou's Photos," or the "Yes, Rasta Photos."
3

i i

Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 4 of 38

President, founder, and owner of the Gagosian Gallery, Inc. LG
Tr. at 16.4

In or about December 2007 through February 2008, Prince
showed artwork at the Eden Rock hotel in St. Barts. See RP Tr. at

187-88. Among the works shown was a collage entitled Canal Zone
(2007), which consisted of 35 photographs torn from Yes, Rasta

and attached to a wooden backer board. See RP Decl. Compo Ex. A.

at 20-24; see also RP Tr. at 179-80. Prince painted over some
portions of the 35 photographs, and used only portions of some of
the photos, while others were used in their entirety or nearly

so. See generally RP Decl. Compo Ex. A at 20-24. Though Canal
Zone (2007) was not sold, Prince sold other artworks at that show

through Gagosian. RP Tr. 187-88, 197-98. Portions of Canal Zone
(2007) were reproduced in a magazine article about Prince's Canal

Zone show at the Gagosian Gallery. RP Tr. at 198-201. Prince
intended that Canal Zone (2007) serve as an introduction to the

characters he intended to use in a screenplay and in a planned
series of artworks, also to be entitled Canal Zone. RP Aff. ~ 48.

Prince ultimately completed 29 paintings in his contemplated
Canal Zone series, 28 of which included images taken from Yes,

4Gagosian testified that he "may have given" "a small piece"
of the Gallery to his sister. LG Tr. at 17.
4

LL

Case 1 :08-cv-11327 -DAB Document 71 Filed 03/18/11 Page 5 of 38

Rasta.5 See RP Decl. Compo Ex. A. Some of the paintings, like
"Graduation (2008)" and "Canal Zone (2008)," consist almost
entirely of images taken from Yes, Rasta, albeit collaged,

enlarged, cropped, tinted, and/or over-painted, while others,

like "Ile de France (2008)" use portions of Yes, Rasta Photos as

collage elements and also include appropriated photos from other
sources and more substantial original painting. 6 See RP Decl.

Compo Ex. A (comparing Prince paintings with Cariou Photos used
therein); compare Brooks Decl. Ex. M (Canal Zone catalog) with
Brooks Decl. Ex. L (Yes, Rasta book). In total, Prince adri ts
using at least 41 Photos from Yes, Rasta as elements of Canal
Zone Paintings. RP Decl. ~ 24.

The Gallery showed 22 of the 29 Canal Zone paintings at one
of its Manhattan locations from November 8, 2008 to December 20,
2008. Brooks Decl. Ex. M at 1; LG Tr. at 25, 50; RP Aff. at Ex.

A. The Gallery also published and sold an exhibition catalog
from that show, similarly entitled Canal Zone, which contained

5The allegedly infringing works in the Canal Zone series,

together with Canal Zone (2007), are referred to collectively
herein as the .Paintings," "Prince's Paintings," or the "Canal
Zone Paintings. n

6In reaching its determination herein, the Court has
examined fully the exhibits and reproductions provided by the
Parties and has compared the 29 Canal Zone paintings with the
Yes, Rasta Photos. The Court sees no need to describe each work

in great detail.

5

71 Filed 03/18/11 Page6of38

Case 1:08-cv-11327-DAB Document

reproductions of many of the Canal Zone Paintings (including some
Paintings which were not shown at the Gallery) and photographs of

Yes, Rasta Photos in Prince's studio. See Brooks Decl. Ex. M

(Canal Zone exhibition catalog). The Gagosian employee who was
the Managing Editor of the catalog testified that she never
inquired as to the source of the Rastafarian photographs

contained therein. AC Tr. at 42.
Other than by private sale to individuals Cariou knew and
liked, the Photos have never been sold or licensed for use other

than in the Yes, Rasta book. PC Tr. 86-94. However, Cariou
testified that he was negotiating with gallery owner Christiane
CelIe ("CelIe"), who planned to show and sell prints of the Yes,

Rasta Photos at her Manhattan gallery, prior to the Canal Zone
show's opening. PC Tr. at 96-98; see CC Tr. 39 -40, 42-44. Cariou
also testified that he intended in the future to issue artists'

editions of the Photos, which would be offered for sale to
collectors. PC Tr. 92-94; 97-98.

CelIe originally planned to exhibit between 30 and 40 of the
Photos at her gallery, with multiple prints of each to be sold at
prices ranging from $3,000.00 to $20,000.00, depending on size.

CC Tr. at 40-42, 46, 66-68, 127-28, 153-55. She also planned to
have Yes, Rasta reprinted for a book signing to be held during

the show at her gallery. CC Tr. at 87-88, 155-56. However, when
6

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Celle became aware of the Canal Zone exhibition at the Gagosian
Gallery, she cancelled the show she and Cariou had discussed. PC
Tr. at 98; CC Tr. 63-64, 71. Celle testified that she decided to
cancel the show because she did not want to seem to be

capi talizing on Prince's success and notoriety, CC Tr. at 89,
105-06, and because she did not want to exhibit work which had
been udone already" at another gallery, CC Tr. 89, 91, 105.

II. DISCUSSION

A. Sumary Judgment
A district court should grant sumary judgment when there is
Uno genuine issue as to any material fact," and the moving party

is entitled to judgment as a matter of law. Fed. R. civ. P.
56 (c); see also Hermes Int'l v. Lederer de Paris Fifth Ave.,

Inc., 219 F.3d 104, 107 (2d Cir. 2000). Genuine issues of
material fact cannot be created by mere conclusory allegations;

sumary judgment is appropriate only when, uafter drawing all
reasonable inferences in favor of a non-movant, no reasonable
trier of fact could find in favor of that party." Heublein v.

United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing
Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S.

574, 587-88 (1986)).
In assessing when sumary judgment should be granted, Uthere
7

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Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 8 of 38

must be more than a 'scintilla of evidence' in the non-movant' s

favor; there must be evidence upon which a fact-finder could
reasonably find for the non-movant." Id. (citing Anderson v.

Liberty Lobby, Inc., 477 u.s. 242, 252 (1986)). While a court
must always "resolv (eJ ambiguities and draw ( J reasonable

inferences against the moving party," Kniqht v. u.s. Fire Ins.

Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson, 477 U.S. at

252), the non-movant may not rely upon "mere speculation or
conjecture as to the true nature of the facts to overcome a

motion for sumary judgment." Id. at 12. Instead, when the moving
party has documented particular facts in the record, "the
opposing party must set forth specific facts showing that there

is a genuine issue for trial." Williams v. Smith, 781 F.2d 319,
323 (2d Cir. 1986) (quotation omitted). Establishing such facts

requires going beyond the allegations of the pleadings, as the

moment has arrived "to put up or shut up." Weinstock v. Columia

Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted).
Unsupported allegations in the pleadings thus cannot create a

material issue of fact. rd.
A 90urt faced with cross-motions for sumary judgment need
not "grant judgment as a matter of law for one side or the

other," but "'must evaluate each party's motion on its own
merits, taking care in each instance to draw all reasonable
8

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Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 9 of 38

inferences against the party whose motion is under
consideration.'" Heublein, Inc. v. united States, 996 F.2d 1455,

1461 (2d Cir. 1993) (quoting Schwabenbauer v. Bd. of Educ. of

Olean, 667 F.2d 305, 313-14 (2d Cir. 1981)).
To prevail on a copyright infringement claim, two elements
must be proven: (1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are original.

See Harper & Row, 471 U.S. at 548; Feist Publ'ns., Inc. v. Rural

Tel. Servo Co., Inc., 499 US at 348, 363 (1991) (holding that
alphabetical arrangement of names in telephone directory was not

protected by copyright, since alphabetical arrangement uis not
only unoriginal, it is practically inevitable."). To be
Uoriginal," a copyrighted work must have been independently
created by the author and must possess Uat least some minimal

degree of creativity," although uthe requisite level of
creativity is extremely low; even a slight amount will suffice."

Id. at 345. uThe vast majority of works make the grade quite

easily, as they possess some creative spark, 'no matter how

crude, humle or obvious' it might be." Id. (citation omitted).
U (T) he applicability of (the fair use defense to copyright

infringement) presents mixed questions of law and fact," Arista

Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) (citinq Harper

9

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& Row Pubs., Inc. v. Nation Enters., 471 U. S. 539, 560 (1985)),

but may nevertheless be determined on a motion for sumary
judgment where the record contains facts sufficient to evaluate
each of the statutory factors, Harper & Row at 560.

B. Copyright in the Photos

Cariou's ownership of a valid copyright in the photos is

undisputed. However, Defendants assert that Cariou's Photos are

mere compilations of facts concerning Rastafarians and the
Jamaican landscape, arranged with minimum creativity in a manner
typical of their genre, and that the Photos are therefore not

protectable as a matter of law, despite Plaintiff's extensive
testimony about the creative choices he made in taking,
processing, developing, and selecting them.7

Unfortunately for Defendants, it has been a matter of
settled law for well over one hundred years that creative

photographs are worthy of copyright protection even when they

depict real people and natural environments. See,~,
Burrow-Giles Lithoqraphic Co. v. Sarony, 111 U.S. 53, 60 (1884)

7Defendant's arguments concerning whether ideas can be

protected by copyright are irrelevant to this case: Plaintiff
seeks recourse for Prince's use of his original creative works,
not for any use of or infringement on the ideas they portray.

10

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(photographic portrait of Oscar Wilde was original creative work,

since photographer posed the subject, selected his clothing,

background, light and shade, and "suggest (ed) and evok (ed) the
desired expressionH) i Roqers v. Koons, 960 F.2d 301, 307 (2d Cir.
1992) ("Elements of originality in a photograph may include

posing the subjects, lighting, angle, selection of film and
camera, evoking the desired expression, and almost any other
variant involved.

H) , cert. denied, 506 U.S. 934 (1992) i Mannion

v. Coors Brewinq Co., 377 F. Supp. 2d 444,450 (S.D.N.Y. 2005)
("Almost any photograph 'may claim the necessary originality to
Trio

support a copyright. "') (citation omitted) i Eastern Am.

Prods., Inc. v. Tanq Elec. Corp., 97 F. Supp. 2d 395, 417
(S.D.N.Y. 2000) (photographs of "cornon industrial itemsH were
protectable) i Monster Corn.' s, Inc. v. Turner Broad. Svs. Inc.,

935 F. Supp. 490, 494 (S.D.N.Y. 1996) ("photographic images of
actual people, places and events may be as creative and deserving
of protection as purely fanciful creationsn).

Accordingly, Cariou's Photos are worthy of copyright

protection.

C. Fair Use

From the infancy of copyright protection, some opportunity

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for fair use of copyrighted materials has been thought necessary
to fulfill copyright i s very purpose, "(tl 0 promote the Progress

of Science and useful Arts. . . ." Campbell v. Acuff-Rose Music,

Inc., 510 U.S. 569, 575 (1994) (quotinq U.S. Const., Art. I, § 8,

cl. 8). At the Constitutional level, while the "Copyright Clause
and the First Amendment (are) intuitively in conflict, (they)

were drafted to work together to prevent censorship" such that
"the balance between the First Amendment and copyright is

preserved, in part, by the idea/expression dichotomy and the
doctrine of fair use." Suntrust Bank, 268 F.3d at 1263 (citinq
Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001) (quotinq
Harper & Row, 471 U. S . at 560)).

"Copyright law thus must address the inevitable tension
between the property rights it establishes in creative works,

which must be protected up to a point, and the ability of
authors, artists, and the rest of us to express them- or
ourselves by reference to the works of others, which must be

protected up to a point. The fair-use doctrine mediates between
the two sets of interests, determining where each set of
interests ceases to control." Blanch v. Koons, 467 F.3d 244, 250
(2d Cir. 2006); see also Warner Bros. Entertainment Inc., v. RDR

Books, 575 F.Supp.2d 513,540 (S.D.N.Y. 2008) ("At stake in this
case are the incentive to create original works which copyright

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protection fosters and the freedom to produce secondary works

which monopoly protection of copyright stifles-both interests
benefit the public.H) (quoting Pierre N. Leval, Toward a Fair Use

Standard, 103 Harv. L. Rev. 1105, 1109 (1990) (hereinafter
ULevalH) (noting that although "the monopoly created by copyright

. .. rewards the individual author in order to benefit the
public (, J H on the other hand Uthe monopoly protection of
intellectual property that impeded referential analysis and the

development of new ideas out of old would strangle the creative

process. H )
The doctrine of Fair Use was codified in Section 107 of the
1976 Copyright Act. Section 107 calls for a four-factor test:
Limitations on exclusive rights: Fair use:

Notwithstanding the provisions of sections 106 and
106A, the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or
by any other means specified by that section, for
purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use) ,
scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a
work in any particular case is a fair use the factors
to be considered shall include-

(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;

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(3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for
or value of the copyrighted work.
17 U.S.C. § 107.

In applying the fair use doctrine, "(t) he task is not to be
simplified with bright-line rules, for the statute, like the
doctrine it recognizes, calls for case-by-case analysis. n

Campbell, 510 U.S. at 577-78. In conducting that analysis, "all
(of the four factors) are to be explored, and the results weighed
together in light of the purposes of copyright. n id.

D. Applying the Four-Factor Analysis
1. The Purpose and Character of Prince's Use of the Photos
i. Transforrative Use

"The central purpose of the inquiry into the first factor is

to determine, in Justice Story's words, whether the new work
merely supersede (s) the objects of the original creation or

instead adds something new, with a further purpose or different

character, altering the first with new expression, meaning, or

message; it asks, in other words, whether and to what extent the
new work is 'transformative. ,n salinger v. Co1tinQ, No. 09 Civ.
5095 .

(DAB) , 641 F.Supp.2d 250, 256 (rev'd on other qrounds 607

14

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F.3d 68 (2d Cir. 2010); Camobell, 510 u.s. at 579 (internal
quotations and citations omitted). Although a transformative use

is not strictly required for the Defendant to establish the
defense of fair use, "the goal of copyright, to promote science

and the arts, is generally furthered by the creation of
trans

formative works. Such works thus lie at the heart of the

fair use doctrine i s guarantee of breathing space wi thin the
confines of copyright, and the more transformative the new work,

the less will be the significance of other factors, like
commercialism, that may weigh against a finding of fair use." Id.
(citing Sony Corp. of America v. Universal City Studios, Inc.,

464 U.S. 417, 478-80 (U.S. 1984) (Blackmun, J., dissenting).
The inquiry into the first factor of the fair use test,

"'the purpose and character of the use,' may be guided by

the examples given in the preamle to § 107, looking to whether
the use is for criticism, or comment, or news reporting, and the
like." Campbell, 510 U.S. at 578-79 (citing 17 U.S.C. § 107)
(identifying parody as a use akin to the illustrative uses

identified in the preamle).
As the Second Circuit clearly noted in Castle Rock, the fact
that a work "recast (s), transform (s), or adapt (s) an original

work into a new mode of presentation," thus making it a

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Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 16 of 38

"derivative work" under 17 n.s.c. § 101, does not make the work
"trans

formative" in the sense of the first fair use factor.

Castle Rock, 150 F. 3d at 143. Nevertheless, Defendants invite

this Court to find that use of copyrighted materials as raw
materials in creating "appropriation art" which does not comment
on the copyrighted original is a fair use akin to those

identified in the preamle to § 107.
The cases Defendants cite for the proposition that use of

copyrighted materials as "raw ingredients" in the creation of new
works is per se fair use do not support their position, and the
Court is aware of no precedent holding that such use is fair
absent transformati ve comment on the original. To the contrary,

the illustrative fair uses listed in the preamle to § 107 "criticism, comment, news reporting, teaching (...), scholarship,
(and) research" - all have at their core a focus on the original

works or their historical context, and all of the precedent this
Court can identify imposes 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. See, ~, Campbell,
510 U. S. at 579 (transformative use is use that "alter (s) the

first with new expression, meaning, or message"); Bourne v.

Twentieth Century Fox Film Corp., 602 F.Supp.2d 499 (S.D.N.Y.
Mar. 15, 2009) (Batts, J.) (parody song which commented both on

16

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the copyrighted original and on f~ous person associated with
original was transformative); Blanch v. Koons, 467 F.3d at 252~53
(use of copyrighted fashion advertisement as "raw material" was
trans

formative because artist used it to comment on the role such

advertisements play in our culture and on the attitudes the
original and other advertisements like it promote); Liebowitz v.
Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998)
(superimposition of Leslie Nielsen's face on photo of body

intended to resemble pregnant Demi Moore commented on original
photo of Moore by hOlding its pretentiousness up to ridicule).
C.f. Roqers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992), cert.
denied, 506 u. s. 934 (1992) (sculpture drawn from copyrighted

photograph was not fair use because while the sculpture was a
"satirical critique of our materialistic society, it is difficult

to discern any parody of (or comment on) the photograph

itself.")
"If an infringement of copyrightable expression could be
justified as fair use solely on the basis of the infringer's

claim to a higher or different artistic use . . . there would be
no practicable boundary to the fair use defense." Roqers v.
Koons, 960 F.2d at 310. The Court therefore declines Defendants'
invi tat

ion to find that appropriation art is per se fair use,

regardless of whether or not the new artwork in any way comments
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on the original works appropriated. Accordingly, Prince's
Paintings are transformative only to the extent that they comment

on the Photos; to the extent they merely recast, transform, or
adapt the Photos, Prince's Paintings are instead infringing

derivative works. See Castle Rock, 150 F. 3d at 143.
Prince testified that he has no interest in the original

meaning of the photographs he uses. See ~, RP Tr. at 338.
Prince testified that he doesn' t ureally have a messageH he

attempts to communicate when making art. RP Tr. at 45-46. In
creating the Paintings, Prince did not intend to comment on any
aspects of the original works or on the broader culture. See

~, RP Tr. at 357-60; 362-64. Prince's intent in creating the
Canal Zone paintings was to pay homage or tribute to other
painters, including picasso, Cezanne, Warhol, and de Kooning, see

RP Tr. at 164-67, 300-01, and to create beautiful artworks which
related to musical themes and to a post-apocalyptic screenplay he

was writing which featured a reggae band, see, ~, RP Tr. 7,
30, 207-08, 218, 232, 251-52. Prince intended to emphasize
themes of equality of the sexes; highlight uthe three
relationships in the world, which are men and women, men and men,

and women and women"; and portray a contemporary take on the

music scene. RP Tr. 338-39. with regard to the paintings in
which Prince collaged guitars onto portraits of Rastafarian men

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which were taken from Yes, Rasta, Prince testified that his

message related to the fact that the men had become guitar

players. See,~, RP Tr. at 340 ("(Hle's playing the guitar
now, it looks like he's playing the guitar, it looks as if he's
always played the guitar, that's what my message was."); see also
RP Tr. 166-68, 279.

Prince also testified that his purpose in appropriating
other people's originals for use in his artwork is that doing so
helps him "get as much fact into (his) work and reduce () the

amount of speculation." RP Tr. at 44. That is, he chooses the
photographs he appropriates for what he perceives to be their
truth - suggesting that his purpose in using Cariou's Rastafarian
portraits was the same as Cariou's original purpose in taking
them: a desire to communicate to the viewer core truths about

Rastafarians and their culture. See Bill Graham Archives v.
Dorlinq Kinderslev Ltd., 448 F.3d 605, 609 (2d Cir. 2006)

(considering, in weighing transformativeness, whether the new

purpose in using an original work was "plainly different from the
original purpose for which it was created.")

On the facts before the Court, it is apparent that Prince
did not intend to comment on Cariou, on Cariou' s Photos, or on

aspects of popular culture closely associated with Cariou or the

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Case 1 :08-cv-11327 -DAB Document 71 Filed 03/18/11 Page 20 of 38

Photos when he appropriated the Photosi and Pricel s own testimony

shows that his intent was not transformative within the meaning

of Section 1071 though Prince intended his overall work to be
creative and new.

As this Court and others in this jurisdiction have found,

where a work is not "consistently transformativei" and "lacks

restraint in using (Plaintiff i s) original expression for its
formative character of

inherent . . . aesthetic value," the "trans

(that work) is diminished." Salinqer v. Coltinqi No. 09 Civ. 5095
(DAB) 1 641 F.Supp.2d 2501 262 (rev1d on other qrounds 607 F.3d 68

(2d Cir. 2010)); Warner Bros. Enter. Inc. v. RDR Books 575

F.Supp.2d 5131 544 (S.D.N.Y. 2008) (citinq Bill Graham Archives
v. Dorlina Kinderslev Ltd., 448 F.3d 605 (2d Cir. 2006). See
Suntrust Bank, 268 F.3d at 1280 (Marcus, J., concurring) (finding

that issue of transformative character cuts "decisively in

(Defendant i s) favor" where the ratio of "the borrowed and the new
elements" is "very low, and the incongruity between them wide") .

Accordingly, while there may be some minimal transformative
element intended in Prince's use of the Photos, the overall

transformativeness varies from work to work depending on the
amount of copying. In the works most heavily drawn from Cariou's

Photosi such as those in which Prince uses entire photographs or

20

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unaltered portraits taken from Yes, Rasta, there is vanishingly
little, if any, trans

formative element; in those where Cariou's

Photos playa comparatively minor role, Defendant has a stronger
formative of Cariou's original

argument that his work is trans

formative content of Prince's

Photos. ø Overall, because the trans

paintings is minimal at best, and because that element is not
consistent throughout the 28 paintings in which Prince used the
Photos, the "trans

formative use" prong of the first § 107 factor

weighs heavily against a finding of fair use.

ii. Commercialitv

The second prong of the first factor of the § 107 test asks
whether the otherwise infringing work "serves a commercial
purpose or nonprofit educational purpose." Suntrust Bank, 268
formative a work,

F.3d at 1269 (citing § 107 (1)). The less trans

the more importance should be attached to "the extent of its

ØMany of the Paintings which have the strongest claim to
formative use are also those in which the amount and
trans
substantiality of the Photos used is least reasonable: those
which feature, as their central elements, strikingly original
Rastafarian portraits taken from Yes, Rasta Photos. See
discussion of third Section 107 factor, infra. For that reason,

even the most transformati ve Paintings have only a weak claim to
fair use, since the four § 107 factors must be "weighed together
in light of the purposes of copyright." Campbell, 510 U.S. at

577-78.
21

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commerciality" in determining whether the first factor favors a
finding of fair use. Campbell, 510 U.S. at 580-81 (if Uthe

commentary has no critical bearing on the substance or style of
the original composi tion .

the claim to fairness in borrowing

from another's work diminishes accordingly (if it does not
vanish), and other factors, like the extent of its commerciali ty

100m larger."); see American Geophysical Union v. Texaco Inc., 60

F.3d 913, 922 (2d Cir. 1995) (UThe greater the private economic
rewards reaped by the secondary user (to the exclusion of broader

public benefits), the more likely the first factor will favor the

copyright holder and the less likely the use will be considered

fair.") U (C) ourts are more willing to find a secondary use fair
when it produces a value that benefits the broader public
interest." Blanch v. Koons, 467 F.3d 244, 253-54.

uNotwithstanding the fact that artists are sometimes paid and

museums sometimes earn money, the public exhibition of art is
widely . . . considered to have value that benefits the wider
public interest." Id. (citations and internal quotations

omitted) .
The Canal Zone show at the Gagosian Gallery was advertised
in seven different newspapers, five of which included
reproductions of Cariou's Photos as altered by Prince. AM Tr. at
42-50; LG Tr. at 36. The Gagosian Defendants sent some 7,500

22

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invitation cards, featuring a reproduction of a Prince work

containing a Cariou Photo, to clients of the Gallery, LG Tr. at
35, AM Tr. at 29-33, and sold the leftover invitations to a

poster company, AM Tr. at 55-59. As a result of these and other
marketing efforts, Gagosian Gallery sold eight of the Canal Zone
Paintings for a total of $10,480,000.00, 60% of which went to

Prince and 40% of which went to Gagosian Gallery. Brooks Dec.

Ex. P , 2 and Ex. A; LG Tr. at 48. Seven other Canal Zone
Paintings were exchanged for art with an estimated value between

$ 6 , 000 , 000 . 00 and $ 8 , 000 , 000 . 00. Brooks Dec. Ex P , 3; LG Tr. at
136-37, 149-50. Gagosian Gallery sold $6,784.00 worth of Canal

Zone exhibition catalogs. Brooks Dec. Ex. P , 4. The facts
before the Court do not establish whether any of the Paintings

have ever been made available for public viewing other than when
they were offered for sale at the Gallery.

This Court recognizes the inherent public interest and

cul tural value of public exhibition of art and of an overall
increase in public access to artwork. However, the facts before
the Court show that Defendants' use and exploitation of the
Photos was also substantially commercial, especially where the

Gagosian Defendants are concerned. Accordingly, given the
overall low transfor.ative content of Prince's Paintings, the

commerciality prong of the first § 107 factor weighs against a
finding of fair use.

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iii. Bad Faith

The first § 107 factor requires the Court to consider uthe
propriety of a defendant's conduct," which is an integral part of
the Court's analysis of the character of the use. NXIVM Corp. v.

Ross Inst., 364 F.3d 471, 478 (2d Cir. 2004) (citations omitted).

Though not in itself determinative, uit has been considered
relevant within this subfactor that a defendant could have

acquired the copyrighted (material) legitimately." Id.
Here, Prince testified that he does not have a different
standard or weigh different considerations when appropriating

works with a disclosed author than he does when using materials
that are in the public domain; to Prince, the question of whether
an image is appropriate for his use is "just a question of

whether (he) like(s) the image." RP Tr. at 100. Prince's
employee contacted the publisher of Yes, Rasta to purchase
additional copies of the book, but apparently neither Prince nor

his employee ever asked the publisher about licensing or
otherwise sought permission to use Yes, Rasta or the Photos

contained therein legitimately. RP Tr. 236-41, 183. Nor did
Prince attempt to contact Cariou by email and inquire about usage

rights to the Photos, even though Yes, Rasta clearly identified
Cariou as the sole copyright holder and even though Cariou' s

publicly-accessible website includes an email address at which he

24

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Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 25 of 38

may be reached. See PC Tr. 238-40, 254, 260. Under these

circumstances, Prince's bad faith is evident. Moreover, since
the record establishes that the Gagosian Defendants were aware
that Prince is. an habitual user of other artists' copyrighted

work, without permission, and because the record is equally clear
that the Gagosian Defendants neither inquired into whether Prince

had obtained permission to use the Ph~tos contained in the Canal
Zone Paintings nor ceased their commercial exploitation of the

Paintings after receiving Cariou's cease-and-desist notice, the
bad faith of the Gagosian Defendants is equally clear.

Because Prince's use was at most only minimally
trans

formative of Cariou's Photos, because the use was

substantially though not exclusively commercial, and because

Prince and the Gagosian Defendants acted in bad faith, the first
factor in the fair use analysis weighs heavily in favor of

Plaintiff.

2. The Nature of the Copyriqhted Work
UThe more the copyrighted matter is at the center of the

protected concerns of the copyright law, the more the other
factors, including justification, must favor the secondary user

25

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Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 26 of 38

in order to earn a fair use finding." Leval at 1122. "The
statutory articulation of this factor derives from Justice
Story's mention ... of the 'value of the materials used.'
Justice story. s word choice is more communicative than our
statute. s 'nature of,' as it suggests that some protected matter

is more 'valued' under copyright that others. This should not be

seen as an invitation to judges to pass on (artisticl quality,
but rather to consider whether the protected (workl is of the
creative or instructive type that the copyright laws value and
seek to foster." rd. at 1117. A key distinction that has emerged
"in the decisions evaluating the second factor (isl whether the

work is expressive or creative, such as a work of fiction, or
more factual, with a greater leeway being allowed to a claim of
fair use where the work is factual or informational." 2 Abrams,

The Law of copyright, § 15: 52 (2006).
Here, the Court finds that Cariou's Photos are highly
original and creative artistic works and that they constitute

"creative expression for public dissemination" and thus "fall (1
wi thin the core of the copyright's protective purposes."

Campbell, 510 U.S. at 586. Consequently, this factor weighs
against a finding of fair use.

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3. The Amount and Substantiality of the Portion Used

The "amount and substantiality of the portion of the
copyrighted work used () must be examined in context (and) the
inquiry must focus on whether the extent of (thel copying is

consistent with or more than necessary to further the purpose and
character of the use." Castle Rock, 150 F. 3d at 144 (guotinq

Campbell, 510 U.S. at 586-87) (internal quotations omitted). The
Court must examine not only "the quantity of the materials used,

but their quality and importance too." Warner Bros. Enter., Inc.,

575 F.Supp. at 546 (quotinq Campbell 510 U.S. at 587).
"(wl hatever the use, generally it may not constitute a fair

use if the entire work is reproduced." Weissmann v. Freeman, 868

F.2d 1313, 1325 (2d Cir. 1989) (citinq 3 Nimmer on Copyright §
13.05 (A) at 13-80). Moreover, the amount and substantiality

factor weighs in favor of the copyright holder awhere the portion

used was essentially the heart of the copyrighted work." Wriqht
v. Warner Books, Inc., 953 F.2d 731, 738 (2d Cir. 1991) (quotinq
Harper & Row, 471 U. S. at 565) (internal quotations omitted).

"As the statutory language indicates, a taking may not be

excused merely because it is insUbstantial with respect to the
infringing work." Harper & Row v. Nation Enters., 471 U.S. at 565
(citation omitted) (emphasis in original) (quoting Judge Learned

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Hand, who "cogently remarked, 'no plagiarist can excuse the wrong
by showing how much of his work he did not pirate. ,")

In a numer of his Paintings, Prince appropriated entire
Photos, and in the majority of his paintings, Prince appropriated

the central figures depicted in portraits taken by Cariou and

published in Yes, Rasta. Those central figures are of
overwhelming quality and importance to Cariou's Photos, going to

the very heart of his work. Accordingly, the amount of Prince's
taking was substantially greater than necessary, given the slight
trans

formative value of his secondary use, and the third factor

weighs heavily against a finding of fair use.

4. The Effect of the Use Upon the Potential Market for or Value
of the Copvriqhted Work
The fourth fair use factor requires courts "to consider not

only the extent of market harm caused by the particular actions

of the alleged infringer, but also whether unrestricted and
widespread conduct of the sort engaged in by the defendant would
resul t in a substantially adverse impact on the potential market

for the original," Campbell, 510 U.s. at 590 (internal quotations

omitted). The inquiry "must take account not only of harm to the
original but also of harm to the market for derivative works."

Id. Harm to the market for derivatives weighs against a finding

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of fair use ubecause the licensing of derivatives is an important
economic incentive to the creation of originals." Id. at 593.

UPotential derivative uses include only those that creators of

original works would in general develop or license others to
develop." Warner Bros. Enter., Inc., 575 F.Supp. at 549 (auotinq
Campbell, 510 U.S. at 592) (internal quotation marks omitted).

See also id. at 550-51 (finding that where Defendant's derivative

work uis only marginally transformative, (it) is likely to

supplant the market for (Plaintiff i s derivative work)") (citinq
Campbell, 510 U.S. at 591).

Defendants' protestations that Cariou has not marketed his

Photos more aggressively (or, indeed, as aggressively as Prince

has marketed his Paintings) are unavailing. As the Second
Circuit has previously emphasized, the Upotential market" for the

copyrighted work and its derivatives must be examined, even if
the Uauthor has disavowed any intention to publish them during
his lifetime," given that an author uhas the right to change his

mind" and is Uentitled to protect his opportunity to sell his
(works)." J.D. Salinqer v. Random House, Inc., 811 F.2d 90, 99
(2d Cir. 1987) (emphasis omitted) i see Castle Rock, 150 F.3d at

145-46 (finding the fourth factor to favor Plaintiff even where

Plaintiff Uhas evidenced little if any interest in exploiting
this market for derivative works" because copyright law must

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"respect that creative and economic choice"). The fact that

Plaintiff has not marketed his work more aggressively is

therefore irrelevant.
Here, it is undisputed that a gallery owner discontinued
plans to show the Yes, Rasta Photos, and to offer them for sale
to collectors, because she did not want to appear to be
capi talizing on Prince's Paintings and did not want to show work

which had been "done already" at the nearby Gagosian Gallery. CC

Tr. 89, 91, 105. It is therefore clear that the market for

Cariou' s Photos was usurped by Defendants. Moreover, licensing
original works for secondary use by other artists is the kind of
derivative use "that creators of original works would in general

develop," Warner Bros. Enter., Inc., 575 F.Supp. at 549, and
widespread unlicensed use in new artworks would destroy the
market for such licenses, see Campbell, 510 U.S. at 590.

Accordingly, the Court finds that Prince has unfairly damaged
both the actual and potential markets for Cariou' s original work

and the potential market for derivative use licenses for Cariou's
original work.

Because Defendants' secondary use has unfairly damaged the

original market for the Photos and, if widespread, would likely
destroy an identifiable derivative market for the Photos, the
fourth § 107 factor weighs against a finding of fair use.

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5. Aggregate Analvsis

The Court has considered the four factors set forth in §

107, and found that none favors a finding of fair use. Moreover,
Uthe monopoly created by copyright" does not unduly uimpede ()

referential analysis (or) the development of new ideas out of

old" when copyright law is enforced under circumstances like

those presented here. Leval at 1109. Accordingly, the purposes
of copyright are best served by extending protection to Cariou's

Photos.
Having conducted a case-specific analysis of the four
factors laid out in 17 U. s. C. § 107 in light of the purposes of

copyright, the Court finds that Defendants are not entitled to
the defense of fair use.

E. Liability of the Gagosian Defendants

Copyright infringement has two elements: u (1) ownership of a
valid copyright, and (2) copying of c9nstituent elements of the
work which are original." Feist, 499 U. S. at 361.

Here, it is uncontroverted that the Gagosian Defendants

copied original constituent elements of Cariou's copyrighted
Photos when they published the Canal Zone exhibition catalog,

created and distributed invitation cards featuring reproductions

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of Cariou's Photos, and otherwise distributed reproductions of

Cariou's work as appropriated by Prince. Moreover, by exhibiting
and selling Prince's unauthorized works, the Gagosian Defendants

infringed Cariou's exclusive rights, as copyright owner of the
Photos, to reproduce, prepare derivative works based upon,

distribute, sell, and display the Photographs. See Copyright
Act, 17 U.S.C. § 106 (1), (2), (3), and (5). The Court therefore
finds the Gagosian Defendants directly liable for copyright

infringement.
The Gagosian Defendants are also liable as vicarious and

contributory infringers.
uThe concept of vicarious copyright infringement was

developed in the Second Circuit as an outgrowth of the agency
principles of respondiat superior." Faulkner v. Nat'l Geo. Soc.,
211 F.Supp.2d 450, 472 (S.D.N.Y. 2002) (citations omitted).

uVicarious liability extends beyond an employer/employee

relationship to cases in which a defendant has the right and
ability to supervise the infringing activity and also has a
direct financial interest in such activities. Benefit and control
are the signposts of vicarious liability. n rd. (citations
omi t ted) .

Here, the record establishes that Gagosian was uhandling

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everything" to do with the marketing of the Canal Zone Paintings

beginning at the time Price first showed Canal Zone (2007), which
Prince thought of as a "preview" of the characters he would use

in the Canal Zone Paintings, in December, 2007. See, ~, RP Tr.
at 185-87 (describing Gagosian's role in the Eden Rock show and
describing Gagosian's home as an "off-off-off Broadway" location
where previously unseen paintings could be shown and sold). The
Court therefore finds that the Gagosian Defendants had the right
and ability to supervise Price's work, or at the very least the

right and ability (and perhaps even responsibility) to ensure
that Prince obtained licenses to use the Photos before they made

Prince's Paintings available for sale. The financial benefit of
the infringing use to the Gagosian Defendants is self-evident.

Accordingly, the Gagosian Defendants are liable as vicarious

infringers.
"One who, with knowledge of the infringing activity,

induces, causes, or materially contributes to the infringing

conduct of another, may be held liable as a contributory
infringer." Faulkner, 211 F.Supp.2d at 473 (citations and
quotations omitted) In other words, "the standard for
contributory infringement has two prongs, the 'knowledge' prong
and the 'material contribution' prong." Id. "Knowledge of the

infringing activity may be actual or constructive . . . In other

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words, this prong is satisfied if the defendant knew or should
have known of the infringing activity at the time of its material

contribution." rd. at 474 (citations and quotations omitted).
UAdvertising or otherwise promoting an infringing product or

service may be sufficient to satisfy the material contribution
prong." rd. at 473-74.

Here, the Gagosian Defendants were well aware of (and
capitalized on) Prince's reputation as an appropriation artist

who rejects the constricts of copyright law, but they never

inquired into the propriety of Prince's use of the photos. The
Court concludes that the Gagosian Defendants knew or should have
known of the infringement at the time that they reproduced,
advertised, marketed, and otherwise promoted the paintings.

Accordingly, the Court finds that the Gagosian Defendants are
liable as contributory infringers.

Because Plaintiff has established a prima facie case of
copyright infringement as against all Defendants, and because the

defense of fair use does not apply, Plaintiff's Motion for

Sumary Judgment on the issue of liability is GRATED in its

entirety.

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F. Plaintiff's Claim for Conspiracy Under the Copyright Act
Defendants argue that Plaintiff's fifth claim for relief,

which charges conspiracy to violate his rights under the
Copyright Act, must be dismissed as failing to state a claim on
which relief may be granted.

No Party has called the Court's attention to any Second
Circuit or Supreme Court authority which provides that a cause of

action for conspiracy to violate the Copyright Act may lie under

New York or Federal law. Nor is conspiracy proscribed by the
Copyright Act itself. See generallY Copyright Act, 17 U.S.C. §
501 et seq.; Calloway v. Marvel Entertainment Group, No. 82 civ.
8697 (RWS)

, 1983 WL 1152, at *5 (S.D.N.Y. 1983).
In the absence of contrary authority, the Court finds Judge

Sweet's reasoning in Irwin v. ZDF Enterprises GmbH, No. 04 CIV.
8027 (RWS)

, 2006 WL 374960 (S.D.N.Y. February 16, 2006)

persuasive. In Irwin, Judge Sweet considered whether the
Copyright Act foreclosed a common law conspiracy claim based on

copyright infringement and determined that "(bI ecause copyright
law already recognizes the concepts of contributory infringement

and vicarious copyright infringement .

which extend joint and

several liability to those who participate in the copyright

infringement . . . (al civil conspiracy claim does not add

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Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 36 of 38

substantively to the underlying federal copyright claim

II

Irwin at *4 (citations and quotations omitted).
The Court therefore finds that Plaintiff' s Fifth Cause of

Action must be dismissed.

III. CONCLUSION

For reasons stated herein, the Court GRAS Plaintiff' s
Motion for Sumary Judgment on the issues of copyright
infringement, fair use, and liability. The Court DENIES

Defendants' Motion for Sumary Judgment except as pertains to
Plaintiff's Fifth Cause of Action, for conspiracy, which is

DISMISSED.

It is further ORDERED:

That, pursuant to 17 U.S.C. § 502, Defendants, their
directors, officers, agents, servants, employees, and attorneys,

and all persons in active concert or participation with them, are

hereby enjoined and restrained permanently from infringing the
copyright in the Photographs, or any other of Plaintiff's works,
in any manner i and from reproducing i adapting, displaying,

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Case 1 :08-cv-11327 -DAB Document 71 Filed 03/18/11 Page 37 of 38

publishing, advertising, promoting, selling, offering for sale,

marketing, distributing, or otherwise disposing of the
Photographs or any copies of the Photographs, or any other of

Plaintiff's works, and from participating or assisting in or
authorizing such conduct in any way.

That Defendants shall within ten days of the date of this

Order deliver up for impounding, destruction, or other
disposition, as Plaintiff determines, all infringing copies of
the Photographs, including the Paintings and unsold copies of the

Canal Zone exhibition book, in their possession, custody, or

control and all transparencies, plates, masters, tapes, film
negatives, discs, and other articles for making such infringing

copies.
That Defendants shall notify in writing any current or
future owners of the Paintings of whom they are or become aware
that the Paintings infringe the copyright in the Photographs,

that the Paintings were not lawfully made under the Copyright Act

of 1976, and that the Paintings cannot lawfully be displayed

under 17 u. S . C . § 109 (c) .
That the Parties shall appear before this Court on May 6,

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Case 1 :08-cv-11327-DAB Document 71 Filed 03/18/11 Page 38 of 38

2011 at 11:00am for a status conference regarding damages,

profits, and Plaintiff's costs and reasonable attorney's fees.

SO ORDERED.

Dated:

New York, New York

March £, 2011

lj~l a, B~
Deborah A. Batts

United States District Judge

38

ADDENDUM B
1. Did the District Court err in granting a permanent injunction and other

equitable relief-such as the "impounding, destruction, or other disposition
(of the ar), as Plaintiff determines," and the notification in writing to "any
curent or future owners" of the art-based on several erroneous findings,

including that Defendants committed copyright infringement and were not
entitled to rely upon the fair use defense?
2. Did the District Cour err in granting Cariou's motion for summary judgment

and denying Defendants' joint motion for summary judgment on copyright
infringement and each of the four prongs of the fair use defense?
3. Did the District Cour err in granting sumary judgment by resolving genuine

issues of material fact, and making credibility determinations?
4. Did the District Cour err in resolving genuine issues of material fact and by

finding the Gagosian Defendants vicariously and contributorily liable where
the well-recognized postthat Prince's practice of
they had a good faith belief
modernist art form known as appropriation art was fair use?

The Second Circuit reviews a district court's grant of a permanent injunction under abuse
of discretion, but it reviews de novo the district court's conclusions of law in connection

with its issuance of the permanent injunction and other equitable relief. The issue of
whether summary judgment was properly granted wil be reviewed de novo.

1080914.1.