Dear Doc:

A few years ago, you wrote about a copyright law suit where the judges’ opinion in the case took care to point out that among the purchasers of the art work accused of infringement were some famous people. Does that make a difference in how cases get decided?

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Dear IF:

The case you are referring to is Patrick Cariou v. Richard Prince. In that case, the court reported that

The invitation list for a dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a number of the wealthy and famous such as the musicians Jay-Z and Beyonce Knowles, artists Damien Hirst and Jeff Koons, professional football player Tom Brady, model Gisele Bundchen, Candace Bushnell, and actors Robert DeNiro, Angelina Jolie, and Brad Pitt.

You may remember that the artist, Richard Prince, had, in effect, just taken some of Cariou’s photos of Jamaican musicians and scribbled on them, hung them in a gallery and, according to the Court’s opinion, “sold eight artworks for a total of $10,480,000, and exchanged seven others for works by painter Larry Rivers and by sculptor Richard Serra.” The Court went on to remark that Cariou, the originator of the photos, “has not actively marketed his work or sold work for significant sums…”

A couple of recent cases dealing with a part of the Copyright Act, the Visual Artists Rights Act (VARA) and the Fair Use defense, tell us that famous people actually do have more rights than you and me. In the U.S. Court of Appeals for the Second Circuit’s opinion in Castillo v. G&M Realty LP, more commonly known as the “5Pointz” case, the Second Circuit concluded that an artist’s fame can affect whether or not VARA protects his or her works. The Second Circuit issued its opinion in February, and the U.S. Supreme Court has denied a petition for certiorari, making the Second Circuit’s decision the most important interpretation of VARA.

The VARA statute granted visual artists two rights: the right of attribution – the right of a visual artist to claim or disclaim authorship, and the right of integrity – the right of a visual artist to prevent destruction or modifications of a work. These rights under VARA belong to the artist and cannot be transferred to anyone else. The right to prevent destruction, however, applies only to works of “recognized stature”, which Congress never defined.

The 5Pointz case involves whitewashing of graffiti art in Long Island City, New York. In 2002, the owner of some warehouses asked graffiti artist Jonathan Cohen to turn those warehouses into art exhibitions.
5Pointz, as it became known, attracted thousands of visitors. In 2013 the owner decided to demolish the warehouses and build luxury apartments. Artists who had graffitied 5Pointz tried to prevent that, but the owner whitewashed over the art and tore down the warehouses. The artists then sued under VARA. 

The judge told the jury that the 5Pointz art would be of recognized stature if it was “viewed as meritorious” and its stature was “recognized by art experts, other members of the artistic community, or some cross-section of society.” The jury found that 28 of the 49 works at had recognized stature. The judge then decided that any work selected by Cohen was of recognized stature and thus concluded that 45 of the works met that standard. The court awarded damages of $6.75 million.

On appeal, the Second Circuit affirmed and clarified that a work is of recognized stature “when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.” That determination includes an evaluation of the artist’s fame. Thus, a work by a more famous artist might be of more prominent status and thus more likely to be of recognized stature than a work of a less famous artist, regardless of the quality of the art itself.

The other recent case is The Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith. The issue in that case is whether Andy Warhol’s use (without permission) of a photograph of the musician “Prince” taken by photographer Lynn Goldsmith is entitled to be considered “fair use”. The District Court considered both Warhol’s fame and his distinctive style and concluded that fair use applied because the Warhol version of the photo was instantly recognizable as a Warhol (and not, presumably, as a Goldsmith, whatever that is…) 

While the appeal in the Warhol case has been argued, no opinion has been issued by the Court. During argument, however, the judges seemed a bit skeptical about the use of Warhol’s fame as a component of the fair use analysis. We will have to wait and see if being famous helps or hurts Warhol’s cause. (But, of course, good old Andy is dead, and no amount of fame is going to help that!)

Are you famous? Would you like to be? Give the attorneys at LW&H a shout. They deal with almost-famous folks and their intellectual property every day.

Until next month,

The “Doc”

— Lawrence A. Husick, Esq.