Cariou v. Prince

Filing 195

MOTION, to file reply amicus curiae brief, on behalf of Amicus Curiae The Andy Wahol Foundation for the Visual Arts, Inc., FILED. Service date 02/22/2012 by CM/ECF. [532679] [11-1197]--[Edited 02/23/2012 by HT]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: [phone]
MOTION INFORMATION STATEMENT
Docket Number(s): 11-1197-cv

Caption [use short title]

Motion for: leave to file reply amicus curiae brief

Cariou v. Prince, et al.

Set forth below precise, complete statement of relief sought:
See attached.

Amicus The Andy Warhol Foundation for the

MOVING PARTY: Visual Arts, Inc.
9 Plaintiff
9 Defendant
9 Appellant/Petitioner
9 Appellee/Respondent
MOVING ATTORNEY:

OPPOSING PARTY:

OPPOSING ATTORNEY: Daniel J. Brooks
[name of attorney, with firm, address, phone number and e-mail]

Anthony T. Falzone

Schnader Harrison Segal & Lewis LLP

Stanford Law School, Center for Internet and Society
559 Nathan Abbott Way
Stanford, CA 94305
[phone]

Plaintiff-Appellee Patrick Cariou

140 Broadway, Suite 3100
New York, NY 10005
[phone] [e-mail]

[e-mail]

Court-Judge/Agency appealed from: United States District Court for the Southern District of New York
Please check appropriate boxes:

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
9 Yes 9 No
Has this relief been previously sought in this Court?
9 Yes 9 No
Requested return date and explanation of emergency:

Has movant notified opposing counsel (required by Local Rule 27.1):
x
9 Yes 9 No (explain):
Opposing counsel’s position on motion:
x
9 Unopposed 9 Opposed 9 Don’t Know
Does opposing counsel intend to file a response:
x
9 Yes 9 No 9 Don’t Know
Is oral argument on motion requested?

9 Yes

x
9 No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set?

9 Yes x No If yes, enter date:__________________________________________________________
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Signature of Moving Attorney:
/s/ Anthony T. Falzone
2/22/12
___________________________________Date: ___________________

Has service been effected?

x
9 Yes

9 No [Attach proof of service]

ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
Date: _____________________________________________

Form T-1080

By: ________________________________________________

UNITED STATES COURT OF
APPEALS FOR THE SECOND
CIRCUIT

Appeal No. 11-1197-CV

------------------------------------------------------Patrick Cariou,

On Appeal From the United Stated
District Court for the Southern
District of New York, Civil Action
No. 08-CV-11327 (DAB)

Plaintiff-Appellee,
v.

MOTION FOR LEAVE TO
FILE REPLY AMICUS
CURIAE BRIEF

Richard Prince, et al.
DefendantsAppellants
--------------------------------------------------------

The Andy Warhol Foundation for the Visual Arts, Inc. (“The Warhol
Foundation”) respectfully moves for leave to file the accompanying reply
brief as amicus curiae in support of Defendants-Appellants and urging
reversal of the district court’s decision.
The Warhol Foundation makes this unusual request because it is in a
unique position to represent public interests that go beyond those of the
parties to this case. It generates substantial revenue from the copyrights it
owns and uses that revenue to help fund its non-profit mission of supporting
contemporary art, including the work of many photographers. The Warhol
Foundation’s interest in this case therefore parallels the public’s interest in a
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balanced copyright system that recognizes the need to provide strong
economic incentives and the need to provide plenty of breathing room for
artists who use existing images to create new art.
Plainitff-Appellee Patrick Cariou, and the amici curiae that filed in
support of him, urge the Court to adopt a fair use standard that would upset
that balance profoundly. The Warhol Foundation believes its reply brief will
assist the Court in understanding how far Cariou and his amici depart from
the controlling law of the Supreme Court and the Second Circuit, why their
proposed standard is particularly inappropriate for visual art, and the extent
to which the adoption of that standard would threaten established modes of
artistic expression and ultimately impede far more creativity than it would
promote.
The reply brief meets the requirements of Federal Rule of Appellate
Procedure 29, totals 2,402 words, and provides the Court with an important
perspective not offered by the parties to the litigation. On this basis, The
Warhol Foundation respectfully asks the Court to grant it leave to file the
reply brief submitted with this motion.

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DATED: February 22, 2012

/s/ Anthony T. Falzone
Anthony T. Falzone
Julie A. Ahrens
Daniel K. Nazer
Stanford Law School
Center for Internet and Society
559 Nathan Abbott Way
Stanford, CA 94305
[phone]
Virginia Rutledge
414 W. 145th Street
New York, NY 10031
[phone]
Zachary J. Alinder
John A. Polito
Bingham McCutchen LLP
Three Embarcadero Center
San Francisco, CA 94111
[phone]
Attorneys for Amicus Curiae
The Andy Warhol Foundation
for the Visual Arts, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on February 22, 2012, I served by E-Mail a true and correct copy of
the foregoing Motion by Amicus The Andy Warhol Foundation for the Visual Arts, Inc.
for Leave to File Reply Amicus Curiae Brief and accompanying Motion Information
Statement upon the parties listed below:
Daniel J. Brooks
SCHNADER HARRISON SEGAL & LEWIS LLP
140 Broadway, Suite 3100
New York, NY 10005
[phone]
[e-mail]

/s/ Anthony T. Falzone
ANTHONY T. Falzone

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