Cariou v. Prince, 08 Civ. 11327(DAB).

• Decision Date: 18 March 2011
• Docket Number: No. 08 Civ. 11327(DAB).,08 Civ. 11327(DAB).
• Parties: Patrick CARIOU, Plaintiff,v.Richard PRINCE, Gagosian Gallery, Inc., Lawrence Gagosian, and Rizzoli International Publications, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

784 F.Supp.2d 337

98 U.S.P.Q.2d 1318

Patrick CARIOU, Plaintiff,

v.Richard PRINCE, Gagosian Gallery, Inc., Lawrence Gagosian, and Rizzoli International Publications, Inc., Defendants.

No. 08 Civ. 11327(DAB).

United States District Court, S.D. New York.

March 18, 2011.

Daniel J. Brooks, Eric A. Boden, Schnader Harrison Segal & Lewis, LLP, New York, NY, for Plaintiff.Steven Michael Hayes, Hanly Conroy Bierstein Sheridan Fisher & Hayes, LLP, New York, NY, for Defendant Richard Price.Hollis Anne Bart, Dara Gilwit Hammerman, Withers Bergman, LLP, New York, NY, for Defendants Gagosian Gallery, Inc. and Lawrence Gagosian.

MEMORANDUM & ORDER

DEBORAH A. BATTS, District Judge.

This matter is now before the Court on cross-motions for summary 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 summary judgment in his favor on the issue of liability for copyright infringement.

For reasons detailed herein, the Court finds (1) that 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 GRANTED in part, and Plaintiff's Motion is GRANTED in its entirety.

I. BACKGROUND

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 (“Plaintiff” or “Cariou”) 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, titled Yes, Rasta and released by PowerHouse Books ( “Yes, Rasta” ), contained both portraits of Rastafarian individuals (and others) in Jamaica and landscape photos taken by Cariou in 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 e.g., PC Tr. 49–66, 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 (“Prince”) 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 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. Barths. 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. Comp. 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. Comp. 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, Rasta.⁵ See RP Decl. Comp. 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. Comp. 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 admits 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 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 Celle (“Celle”), 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.

Celle 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 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 capitalizing on Prince's success and notoriety, CC Tr. at 89, 105–06, and because she did not want to exhibit work which had been “done already” at another gallery, CC Tr. 89, 91, 105.

II. DISCUSSIONA. Summary Judgment

A district court should grant summary judgment when there is “no 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; summary judgment is appropriate only when, “after 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

In assessing when summary judgment should be granted, “there 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). While a court must always “resolv[e] ambiguities and draw [ ] reasonable inferences against the moving party,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505), the non-movant may not rely upon “mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary 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. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (citation omitted). Unsupported allegations in the pleadings thus cannot create a material issue of fact. Id.

A court faced with cross-motions for summary 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 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)).

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