“A DANGEROUS UNDERTAKING”: THE PROBLEM OF INTENTIONALISM AND PROMISE OF EXPERT TESTIMONY IN APPROPRIATION ART INFRINGEMENT CASES

Abstract

In May 2011, a federal district court issued a ruling that shocked the art world. In a copyright infringement action against prominent artist Richard Prince,[1] Judge Deborah Batts of the Southern District of New York dispensed the art world equivalent of the death penalty: an injunction requiring that artworks be “deliver[ed] up for impounding, destruction, or other disposition.”[2] The condemned works—a series of Prince collages titled “Canal Zone”—contained photographs from Yes, Rasta, a book of portraits of Jamaican Rastafarians by the photographer Patrick Cariou.[3] Prince had cut out images from the book and painted over them, combining them in his collages with other original and found images.[4] The court held that by using images from Yes, Rasta, Prince infringed Cariou’s copyrights, and his work did not qualify for the fair use defense.[5] [1] See Richard Prince Biography, Gagosian Gallery, http://gagosian.vaesite.net/__data/9fc46da40860e8dfbd593fb7af4bc63f.pdf (last visited Feb. 1, 2013). [2] Cariou v. Prince, 784 F.Supp.2d 337, 355 (S.D.N.Y. 2011). [3] Id. at 343-44. [4] Id. [5] Id. at 353-54.