Monday, September 19, 2011

In legal chess game, Richard Prince and Larry Gagosian play hard-ball

A Richard Prince-doctored image by Patrick Cariou from "Canal Zone" series

What´s the Richard Prince – Larry Gagosian litigation game plan in New York’s 2d Circuit Court of Appeals?

On 14 Sept., the pair defeated a procedural bid by French photographer Patrick Cariou to kill their appeal from an 18 March decision by U.S. District Judge Deborah A. Batts, ruling that Prince and Gagosian (along with Rizzoli Publications) misappropriated 41 of Cariou´s images in bad faith, violating his copyright to a 2000 book, “Yes, Rasta,” about Jamaica´s Rastafarians.

Defendants´appeal proceeds after more than three years of litigation.

In a 2008 show, “Canal Zone,” Prince sold some of these doctored and defaced blowups of the French artist for an estimated $18 million, court records show.

Prince takes 60 percent of retail in his deal with Gagosian.

Unsold “Canal Zone” works remain sequestered by the court. Batts ordered these ultimately destroyed.
"Canal Zone" misappropriated images by Richard Prince
 Also, she effectively cursed works already sold because they cannot be displayed in public.

Betts´ decision emerged after three years of legal warfare.

(For a more detailed account, see my blog post of 27April.)

Prince hung himself on his own pre-trial deposition testimony.

He admitted he took Cariou´s images only for the money; he also testified Cariou´s Rasta works lacked merit and did not deserve protection.

Patrick Cariou´s "Yes, Rasta" images as altered by R. Prince

Batts ruled defendants’ use of Cariou´s original images did not fall within “fair use” under U.S. copyright laws.

So impressed with the nefarious facts, Judge Batts ordered summary judgment (without further trial or testimony) for Cariou against all defendants and set 6 May as a hearing to discuss damages and attorney´s fees.

About 85 percent of the time, courts reject motions for summary judgment. 

You have to convince the judge there is no legitimate fact or legal issues requiring trial in order to succeed on such a motion.

Meanwhile, “Canal Zone” works in storage may see their value soar, since this conflict adds provenance,heat and noise (and worth) to them.

The game plan?

Play out the appellate process first.

Although unlikely, Prince and Gagosian could win. They buy time while paying huge sums to voracious, high-powered, highly-paid legal talent.

At this juncture, Cariou has the upper hand in settlement negotiations.

If defendants reverse the trial court on appeal, they still face trial, but it may produce a better settlement for the artist and gallery.

However, if you have a rich and rigid-thinking and arrogant client who believes the justice gods are on his side, then a take-no-prisoners court battle looms.

If this happens and Prince and Gagosian lose at trial, the damages awarded could run into the tens of millions and could also create bad appellate law for future [mis]appropriators.

Bad facts make bad judicial law. And these facts are not those most trial lawyers would like to take into trial.

The Prince/Gagosian appeal is either Chapter 2 in a long and costly, non-fiction drama or part of a chess game lawyers usually play ultimately leading to settlement.

"Millionaire Nurse" by Richard Prince
Rock on and practice peace and love.
Stefan, the ArtTraveler™

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Islamic art and design at Granada´s Alhambra, photograph by Stefan van Drake (2009)

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