One hundred years ago, Picasso produced Bottle of Vieux Marc, Glass, Guitar and Newspaper, a collage featuring an old newspaper clipping. Six years later, Marcel Duchamp drew a moustache and goatee on a postcard reproduction of the Mona Lisa. Critics consider these early examples of appropriation artworks like Andy Warhol’s soup cans or silkscreened photographs of Marilyn Monroe that incorporate photographs, images or objects produced by others in a new creation. But when the preexisting work is copyrighted, may its creator prevent the appropriation or charge for the privilege? In Cariou v. Prince, 2013 WL 1760521 (2d Cir. April 25, 2013), a Second Circuit panel recognized generous protection for creators of appropriation art under the copyright doctrine of fair use, largely rejecting a challenge to the work of Richard Prince, a prominent appropriation artist. Cariou illustrates the flexibilityand unpredictabilityof the fair use defense.
Cariou concerned Prince’s Canal Zone series, 30 collages his lawyers described as a "fantastical account of survivors of a nuclear holocaust who create their own society where music is the surviving, if not redeeming, fact of life." The Canal Zone works incorporated photographs taken by plaintiff Patrick Cariou and collected in a book titled Yes, Rasta, published after Cariou had spent six years living and working with Rastafarians in Jamaica.
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