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Stanford Law School's Fair Use Project Represents The Andy Warhol Foundation in Amicus Brief Urging Federal Appeals Court to Provide Broader Protection for Appropriation Art

STANFORD, Calif., November 3, 2011—The Fair Use Project at Stanford Law School’s Center for Internet and Society filed a friend of the court brief yesterday on behalf of The Andy Warhol Foundation for the Visual Arts urging a federal appeals court to reverse a lower court’s ruling that thirty paintings by the artist Richard Prince infringe copyrights in photographs owned by Patrick Cariou. The lower court’s ruling led to the seizure of Prince’s work and subjects it to potential destruction.

Prince’s paintings are part of his Canal Zone series, and include images of Rastafarians found in Cariou’s book Yes, Rasta, as illustrated by the example It’s All Over (2008).

In a ruling issued last March, U.S. District Judge Deborah A. Batts held Prince liable for infringement, concluding that his appropriation of images from Cariou’s photographs was not protected by the fair use doctrine. In its brief, the Warhol Foundation contends the court took an inappropriately narrow view of fair use. It urges the U.S. Court of Appeals for the Second Circuit to provide strong fair use protection for artists who use existing images to create new art, and to recognize the important free speech and expression interests that are implicated by work like Prince’s.

“The fair use doctrine is the most important tool courts have to ensure that copyright does not choke the creativity it is supposed to foster,” said Anthony T. Falzone, executive director of the Fair Use Project and counsel for the foundation. “Artists should not have to hire a lawyer to make art, and we’re suggesting an approach that provides clearer protection for the free expression interests of artists and the public.”

Michael Straus, the Warhol Foundation’s chair, said, “the position of the foundation is that the district court gravely misconstrued the fair use doctrine and in so doing not only jeopardized the status of existing works by a range of artists but also created such uncertainty in the field as to cause a chilling effect on the creation of new works.” Among other things, as the Warhol Foundation explains in its brief, the appropriation of images to create new works is part of an important artistic tradition that goes back to Pablo Picasso, Marcel Duchamp, and notably includes Andy Warhol’s own use of photographic and other images in his works.

“The Warhol Foundation’s primary mission is to advance the visual arts,” explained Joel Wachs, the Warhol Foundation’s president. “The foundation encourages creativity over a wide range of artistic expression and therefore does not object to other artists building upon Andy Warhol’s work. At the same time the foundation owns valuable copyrights in those works that provide substantial revenue for the foundation’s grant-making and other activities. In its own decisions the foundation balances the need to provide strong copyright protection with the need to protect the right to create new art. We think the district court failed to understand that balance and therefore urge the court of appeals both to reverse that decision and to set forth guidelines that will promote rather than undermine creativity in the arts.”

The Warhol Foundation is also being represented by New York City attorney Virginia Rutledge and lawyers from Bingham McCutchen LLP.

About The Andy Warhol Foundation for the Visual Arts

Founded upon Mr. Warhol’s death, the foundation advances the visual arts by promoting the creation, presentation and documentation of contemporary art.  It has a broad goal promoting greater public understanding and appreciation of the visual arts and the vital contribution that artists and artistic expression make to building and sustaining a more creative and engaged society. Read more about the foundation online at: www.warholfoundation.org.

About the Fair Use Project

The Fair Use Project was founded in 2006 as part of the Stanford Law School Center for Internet and Society. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of “fair use” in order to enhance creative freedom.

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