Cariou v. Prince

Filing 225

MOTION, for oral argument, on behalf of Amicus Curiae The Andy Wahol Foundation for the Visual Arts, Inc., FILED. Service date 04/16/2012 by CM/ECF. [581659] [11-1197]

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):
Motion for:

11-1197

Caption [use short title]

Cariou v. Prince, et al.

Independent Oral Argument

Set forth below precise, complete statement of relief sought:

Amicus Curiae The Andy Warhol Foundation for the
Visual Arts, Inc. seeks ten minutes of oral argument in
addition to the time alloted to the parties. See attached.
Amicus Curiae The Andy Warhol
MOVING PARTY: Foundation for the Visual Arts, Inc.
9 Plaintiff
9 Defendant
9 Appellant/Petitioner
9 Appellee/Respondent

MOVING ATTORNEY:

Anthony T. Falzone

OPPOSING PARTY:

Patrick Cariou, Richard Prince

OPPOSING ATTORNEY: See attached.
[name of attorney, with firm, address, phone number and e-mail]

Stanford Law School, Center for Internet and Society
559 Nathan Abbott Way, Stanford CA 94305
650-736-9050
[e-mail]
Court-Judge/Agency appealed from:

U.S. 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):
✔
9 Yes 9 No (explain):
Opposing counsel’s position on motion:
✔
9 Unopposed 9 Opposed 9 Don’t Know
Does opposing counsel intend to file a response:
✔
9 Yes 9 No 9 Don’t Know
Is oral argument on motion requested?
Has argument date of appeal been set?

9 Yes

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

✔
May 21, 2012
9 Yes 9 No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:
4/16/12
___________________________________Date: ___________________
/s/ Anthony T. Falzone

Has service been effected?

✔
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: ________________________________________________

Opposing Attorneys:
Counsel for Patrick Cariou:
Daniel J. Brooks
Schnader, Harrison, Segal & Lewis LLP
140 Broadway, Suite 3100, New York, NY 10005
212-973-8150
[e-mail]
Counsel for Richard Prince:
Joshua I. Schiller
Boies, Schiller & Flexner LLP
575 Lexington Avenue, 7th Floor, New York, NY 10022
212-446-2300
[e-mail]
Counsel for Consenting Parties Gagosian Gallery, Inc. and Lawrence
Gagosian:
Hollis Anne Gonerka Bart
Chaya Weinberg-Brodt
Withers Bergman LLP
430 Park Avenue, 10th Floor, New York, NY 10022
212-848-9800
[e-mail]

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-------------------------------------------------------Patrick Cariou,
Plaintiff-Appellee,
v.

Appeal No. 11-1197-CV
On Appeal From the United
States District Court for the
Southern District of New York,
Civil Action No. 08-CV-11327
(DAB)

Richard Prince, et al.
Defendants-Appellants.
--------------------------------------------------------AMICUS CURIAE THE ANDY WARHOL FOUNDATION FOR THE
VISUAL ARTS, INC.’S MOTION FOR INDEPENDENT ORAL
ARGUMENT
The Andy Warhol Foundation for the Visual Arts, Inc. (“The Warhol
Foundation”) respectfully moves this Court for ten minutes of oral argument as
amicus curiae in addition to the time allotted to the parties in order to address the
important public interests at stake in this case. Appellants Gagosian Gallery, Inc.
and Lawrence Gagosian consent. Appellant Richard Prince and Appellee Patrick
Cariou oppose.
Founded upon Mr. Warhol’s death, the Foundation advances the visual arts
by promoting the creation, presentation and documentation of contemporary art. It
has made grants totaling more than $200 million to fund individual artists,
scholars, researchers, museums and other organizations, including The Andy
Warhol Museum. All of its work is premised upon the belief that art reflects an

important cultural dialogue, and that freedom of artistic expression is fundamental
to a democratic society. While the Foundation generates substantial revenue from
the copyrights it owns, it 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 is therefore the same as that of the public
at large: a balanced copyright system that recognizes the need to provide strong
economic incentives and the need to provide breathing room for artists who use
existing images to create new art.
That balance is especially critical here. The artistic strategy of appropriating
and collaging pre-existing images is not unique to Appellant Richard Prince. It is
vitally important to contemporary art, and has origins dating back more than a
century, as illustrated by these important works, and others reproduced in The
Warhol Foundation’s brief:

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Richard Hamilton, Just what is it that makes today’s
homes so different, so appealing? (1956)
Collage on paper; 10 1/4 x 9 3/4"

3

Robert Rauschenberg, Skyway (1964)
Oil and silkscreen on canvas; 216 x 192"

4

Prince’s work participates in the same tradition:

Richard Prince, Naked Confessions (2008), at A-259
Collage, inkjet, and acrylic on canvas; 45 1/4 x 46"
In granting summary judgment for Appellee Patrick Cariou, the district court
adopted a fair use standard that threatens this tradition, and is contrary to
controlling law. See Warhol Br. at 23-38. It refused to recognize any expressive
interest or transformative meaning other than parody or direct commentary, and
ignored the transformative meaning that is evident on the face of Prince’s work
because Prince failed to verbalize that meaning to the court’s satisfaction. If the
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district court’s decision is upheld, it will jeopardize important and well-established
modes of artistic expression, raise serious First Amendment concerns, and
ultimately impede far more creativity than it would promote, both in the visual arts
and beyond.
This case implicates important public speech and expression interests that go
well beyond those of the parties involved, and the Warhol Foundation is uniquely
qualified to speak to those interests. As an organization that is dedicated to
supporting contemporary art in all of its forms, the Foundation can provide a
broader perspective on the issues this case presents and the impact it may have
across the spectrum of visual art.
CONCLUSION
For the reasons stated above, The Warhol Foundation requests ten minutes
of argument time in addition to the time allotted to the parties.
DATED: April 16, 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]

6

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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