Oral argument on the Prince-Cariou appeal took place this morning in the Second Circuit. Art in America's Brian Boucher has a report here (in which I'm quoted). Brian is right that, overall, "the lawyers for Prince seemed to have the judges' collective ear," but it's hard to predict how it's going to shake out. There didn't seem to be any clear consensus among the three judges on how to approach the case.
Judge Parker seemed most sympathetic to the Prince point of view. He's the one who compared the injunction ordering destruction of the work to "something that would appeal to the Huns or the Taliban." (One point upon which everyone agreed was that that portion of the injunction had to go.) He also seemed unconvinced there was any market harm; Boucher quotes him as saying (to Cariou's lawyer) "bringing up the market is a clear loser for you. You sold to a totally
different audience, you've admitted that not many of the books were
sold, you sold them out of a warehouse in Dumbo, and that the book was
out of print. Prince was selling to a wealthier crowd, and on this side
of the river." And he didn't seem at all moved by the argument that Prince "stole" Cariou's work: "That's the whole nature of art," he said.
Judge Wallace, sitting by designation from the Ninth Circuit, was most concerned with the question whether the fair use analysis must be applied on a work-by-work basis or, instead, could be done at the level of the series as a whole. He kept coming back to this issue, but never really got it resolved: both sides seemed to take the position that, if the Court was inclined to rule in their favor, then it was okay to consider the series as a whole; but if the ruling goes the other way, then the case needed to be remanded for a work-by-work consideration.
And Judge Hall, in the middle, was mostly quiet, so it's hard to know which way he's leaning.
So, the bottom line is: who knows? For now, some thoughts from Artinfo's Shane Ferro. And The Art Market Monitor is "reminded that the case isn’t about the art but about the damage Prince caused Cariou’s market."
