Artnet's Brian Boucher talks to some experts about the latest Richard Prince lawsuit, and the above quote, from Stanford's Paul Goldstein, seems to sum up the prevailing consensus. I may be too wedded to my belief that fair use law is basically indeterminate, and I can certainly see the argument that the Second Circuit's formalist approach in the Cariou case puts Prince in a very difficult position here, but two brief thoughts in response to the Goldstein view:
1. Judge Leval's recent decision in the Google Books case -- decided after Prince-Cariou -- tells us that the fourth fair use factor -- "the effect of the copying use upon the potential market for or the value of the copyrighted work" -- is the most important. Is it really the case that Prince's work will deprive Graham of "significant revenues because of the likelihood that potential purchasers may opt to acquire [Prince's work] in preference to [Graham's]"? Does Prince's work threaten Graham with "significant harm" to the value of his work? Google Books says "some loss of sales" is not enough: "There must be a meaningful or significant effect" upon the market for the copied work. Do we have that here? Doesn't someone who buys a Richard Prince do so because he wants a Richard Prince? Is Prince really siphoning any sales away from Graham?
2. I think there may be a sense that, unlike with the 20 works the Second Circuit blessed in the Cariou case, Prince hasn't "done anything" to (or with) this one, and so how can he possibly have "transformed" it? I think that may miss something important about what's going on here. There is a thing called appropriation art. Not everyone likes it, but it's a thing, and Prince is an important practitioner of the genre. When he takes a work like this and puts it in a show at Gagosian Gallery alongside other similar images he has done something to it. You may not like it as art, and you may not think he's done enough to it to qualify as fair use (as if anyone has any idea what "enough" means in this context). But he has done something to it.
And one final point, from Greg Allen: "Unfortunately for Mr. Graham, he only registered his copyright for the image after Prince's show, so even if he were able to prove infringement, he would only be able to recover actual damages. Since Prince sold his New Portrait to his dealer Larry Gagosian, those actual damages probably range between the profit from one 4x5 photo print and $18,500, Prince's half of the $37,000 retail price for the IG works at that time."
UPDATE: Techdirt's Mike Masnick:
"[I]t's not the underlying work that makes it worth that much, it's the fact that it was created by Richard Prince. That's what's transformative. The original photo was worth x. The Prince version is worth many times x. You and I might not understand *why* but that's how the art world has valued them. So my argument is that it's transformative ... in that 'people value it entirely differently.' Something is different about the work, and that difference is, basically 'Richard Prince did this.' You're focusing too narrowly on whether the image *looks* different to determine if it's transformative. But that's not the way to look at it. It's a question of whether the overall way it's viewed is different. And that's why it's transformative."