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Judge Batts' opinion has generated much discussion in the blogosphere. Some, including my friend and former colleague Coco Soodek, came down on Cariou's side in her Art Law blog post. Others, including artist Jody Garnett, passionately defended Prince in her blog post. Indeed, the ongoing legal battle, which is now before the Second Circuit Court of Appeals, has generated sufficient interest to merit a recent lengthy piece in the New York Times.

As we await the appellate decision, two related aspects of this case intrigue me:

1,  The dilemma of the inarticulate artist. The "fair use" defense--and the "transformative use" requirement at the heart of that defense--mandate that the allegedly infringing work somehow comment upon the original. As Justice Souter explained in the Supreme Court's key "fair use" decision in Campbell v. Acuff Rose Music, Inc., if the new work "has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger."

But the problem here is that the artist, when asked at his deposition, was unable to articulate any transformative purpose behind his use of exact copies of the Cariou's photos in his collage. Indeed, the Court's quotations from Prince's testimony are painful to read for any proponent of "fair use." Thus the Court of Appeals must confront the evidentiary issue of whether the existence of a "transformative use" depends upon the artist's ability to articulate it--and that brings me to the second intriguing aspect of the case:

2.  Judges As Art Critics.  While many have been quick to label Prince "lazy" and "a thief," the genre at issue--"appropriation art"--has an impressive pedigree dating back to at least Pablo Picasso's Bottle of Vieux Marc, Glass, Guitar and Newspaper, a 1913 work of collage art that includes actual newspaper clippings. Andy Warhol's appropriation artwork includes his Cambell Soup Can and his Marilyn, the former a virtual copy of the soup can and the latter a silkscreen of an existing photograph of Marilyn Monroe. Even more challenging is artist Sherrie Levine's After Walker Evans 4, one of an acclaimed set of--are you ready?--her photographs of reproductions of Depression-era photographs by Walker Evans. Not a collage; just a photograph of a photograph that had been reproduced in a book of photographs by Walker Evans. It now hangs in the Metropolitan Museum of Art in New York City, as does After Walker Evans 2.

Thus the Court of Appeals will confront Justice Oliver Wendel Holmes' warning, expressed in a copyright case from more than a century ago:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge

Bleistein v. Donaldson Lithographing Co., 188 US 239 (U.S. 1903). Stay tuned.