The Court holds, first, that the district court applied the wrong standard: there is no requirement that the later work comment on the underlying work. That’s somewhat helpful, but not that big a deal; everyone knew that was wrong from the start. As the Court notes, “even Cariou concedes … the district court’s legal premise was not correct.”The other moderately important holding is that it doesn’t matter what Prince said about the work; the question is “how the work in question appears to the reasonable observer.” Fine, but there weren’t going to be many other fair use defendants who testify their work had no message, or any interest in the underlying work.
The Court then says all you really have to do to tell if something is transformative is look at the works side-by-side, and, having done so in this case, it was “convince[d]” that 25 works passed the test. They reflect Prince’s “drastically different approach and aesthetic.” They have “a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.” He “added something new and presented images with a fundamentally different aesthetic.”But … and here’s where I think things start to go awry … there were five other works that did “not sufficiently differ” from Cariou’s photos to qualify as transformative as a matter of law. They differed, but they did not sufficiently differ. They differed, but they are “still similar in key aesthetic ways.”
So they sent those five works back down to the district court. But why? Why bother? What is the district court supposed to do now? Stare at them side-by-side a little longer? If the appellate court couldn’t “say for sure whether [this work] constitutes fair use or whether Prince has transformed Cariou’s work enough to render it transformative” (my emphasis), what more can the district court do to resolve that question?Is the idea that it now has to go to a jury, to decide what a “reasonable observer” would think? And if that’s the takeaway from the case – that in any case where we can’t “say for sure” whether a work is transformative “enough,” it goes to a jury -- is that really a victory for fair use?
So, on first blush, I’m not sure how much this decision does to reduce the level of uncertainty around the issue of fair use going forward. How do you know, in any particular case, whether your work is more like the 25 “clearly” transformative works or more like the five that “present[ed] closer questions”? Aren’t we still, basically, in the dark?