Case: 11-1197 Document: 148 Page: 1 01125/2012 507130 90

11-1197-cv
IN THE
lllnit.eil .tat.e.a QIour! of A.p.p.eal.a
FOR THE SECOND CIRCUIT
PATRICK CARIOU,
Plaintiff-Appellee,
- against-
RICHARD PRINCE,
Defendant-Appellant,
GAGOSIAN GALLERY, INC., LAWRENCE GAGOSIAN,
Defendants-Cross-Defendants-Appellants.
ON APPEAL FROM THE UNITED STAT&S DISTRlCT CoURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR PLAINTIFF-APPELLEE
DANIEL J. BROOKS
SETH E. SPITZER
ERIC A. BoDEN
of Counsel
ScIlNADER HAmuSON SECAL & LEWIS LLP
140 Broadway, Suite 3100
New York, New York 10005-1101
(212) 973-8000
Attorneys for Plaintiff-Appellee
Press of Fremont Payne, Inc.. 55 Broad Street, Third Floof. New York, NY 10004 . (212) 966-6570
Case: 11-1197 Document: 148 Page: 22 Olf25f2012 507130 90
Image from. Ye.t Rnsta (A-773)
One Painting, Gradrltion, appropriatedthe jmage in its entirety
(addjng paint dollops to the man's face and placing a guitar in his bands):
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Richard Prince Graduation (2008) (A-773)
Ofthe :remaining 14 Paintings that used the image ofthis Rasta.farian,
13 used the entire portrait ofthe man (A-774-777, A-781-783, A-78S-786, A-
791, A-796-797, A-807-808) and. one uscd his torso. (A-804). Ofthese, one
Painting, Meditation, used only the portrait ofthat Rastafarian, facing in the
opposite dim:tion, with paint dollops on his face and a guitar:
[4
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Richard PrinceMeditation (2008) (A-774)
Tbrcc others, Tala ofBrave Ulysses (A-256), I'M Other Silk 0/1M
Island (A-260) and&cape Goat (A-797), used the image ofthis Rastafari.an
repeatedly. In Tales ofBrave U l y l l S ~ , the image is unaltered and appears four
times, juxtaposedwith nudes taken from diffemrt sources:
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RichardPrincc Tale.! o f ~ Ulyue.! (2008) (A-2Sfi)
Prince testified that Talu ofBrave Ulpsu related to his post-
apocalyptic SCIeenplay, but without any suggestion that the ''Rastafarians are
potentially dangerouI to these naked white women, [or] that they might rape
them." (A-l66 at 365:7-21.)
Another Painting, Canal Zone 2008, depictl the same Rastafarian
surrounded by a grid-like landscape consisting entirely ofimages offoliagc taken
from Ye.! Rasta:
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Richard Princc Canal Zone (2008) (A-775)
The Painting entitled The Ocean Club makes usc ofthc same grid-like
landscapc, taken entirely from Yes Rasta, with two images ofthe same Rastafarian,
with paint dollops on his face, and two images of a nude woman:
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Richard Prince The Ocean Club (2008) (A-777)
Two ofthe Canal Zone Paintings, On the Beach (A-798) and Djuna
Barnes, Natalie Barney, Renee Vivien andRomaine Brooks take over the
Gua7uzhanj (A-802), depict scenes on S1. Barth's using entire Cariou tropical
landscapes as background. In Djuna Bames, et al., Prince app10priated this Cariou
landscape in its entirety (A-l64 at 356:3-14):
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Image from Yes l/osta (A-g02)
Prince superimposed four nude women onto Cariou's background,
creating the Djuna Barnes Painting:
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Richard Prince Djuna Barnes, et al., take over the Guanahani (200S) (A-S02)
Prince testified that. in adding the four nudes (named after four
"famous expattiate lesbians living in Paris" in the 1920's (A-1227-122S at
216:2-217:20 to Cariou' s Photograph, he was not commenting on any aspects of
culture (A-165 at 360:12-17) (indeed, his wod< did not generally make such
comments (A-I64 at 354:11-1S; A-166 at 364:6-7, ortIying to create anything
with anew meaning or a new message (A-165 at 360:1S-20), but was trying to
create something new and unique: "A balls-out, great, unbelievably looking great
painting that had to do with a kind ofrock-and-roll painting on the radical side, and
on a conservative side something to do with Cezanne's bathers." (A-165 at
360:22-361:8.)
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Two other Paintings, Back to the Garden and Charlie Compmry,
appropriated a Cariou Photograph of a Rastafarian man on a donkey, juxtaposed
with other images. Here is the image of the man on the donkey from Yes' Rasta:
Image from Yes Rasta (A-780)
Here ia Bac1c to the GartJen, which appropriated the Photograph ofthe
man on the donkey in its entirety:
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,,(

Richani Prince Back to Garden (2008) (A-780)

Prince testified that the message or meaning ofBack to GardnI
was: "I'mtrying to make kind offan1utic, absolutely hip, up to date,
contempoImy tab on the IIllDic 1CCIlC:' (A.163.t 338:17-339:3.) Noting that
one image of1hc Rastafarian onthe donkey had. guitar (Prince'. "contnlmtion." to
the Painting), Prince testified that liliI "mcuagc" was "hey, t1iliI BUy is playing the
guitar:' (A-163lit 340:4-22.)
Ofthe 30 Paintings that appropriated Cariou's Photographs, two
(GrcJdumio" aBack to the Gwrkn) ipplopliated entire portrait&, with the
""ckground; two (DjJma Bante.J and 011 Beach) "PJliopriailcd entire Jllndscapcai
18 (Meditation, Canal7..oM 2007, Q:moJ 2008, 11Ie Ocm Club,
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Image from Canal Zone Catalogue (A-349)
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-..
Image from Canal Zone Catalogue (A-350)
25
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Image from Canal Zone Catalogue (A-351)
And the Catalogue had blown-up details from the Paintings
emphasizing Cariou's Photographs:
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Image from Canal Zone Catalogue (A-352)
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Image from Canal Zone Catalogue (A-353)
The Canal Zone Catalogue was copyrighted in the names of Gagosian
Gallery and Prince, with a warning: "All rights reserved. No part ofthis
publication may be used or reproduced in any manner whatsoever without prior
written permission from the copyright holders." (A-240.)
4. The Marketing of the Canal Zone Paintings Was Commercially
Exploitative
Gagosian Gallery and Gagosian (who either owned all of the stock of
Gagosian Gallery, or "may have given [his] sister a small piece of it" (A-168 at
17:15-23)), controlled and profited from the exhibition and sale of the Canal Zone
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Advertisement, Artforum, November 2008 (A-366)
Gagosian Gallery publicized the Canal Zone exhibition on its website
and in a press release depicting Back to the Garden:
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GAGOSIAN GALLERY
PRiNCE
C..,r;llL 'l0N l:
2003
, 'VI." l41h :>''''01
Hew YtJl'k. hW SOOli
1,111. 1<111111, <II f11,'!f>1l
1.011I G: II) or,
I ht! ..J.... II.;i'Y l'IlIf bE! closed Oi!'( 24,
.tilll j. 2010
GtJlIl!ty In!OIMaUon
0011,.,. N "
Rich I'd Pt'irocs
PRESS REl-EASE
VIEW WORK
.AIl.TIS't
PRESS
"'The story was baSica/fy about a guy who 'ands in St Barth,
Qlilts off tfiJ8 plane, is fmmed fh,!lt <'i
hO!DCa'l.JSt in res of the world, and he looks .at
filS famlfy tlftd says 'we can"t go tJi!lcJ(
--Ridhard Prince
GagO'Siiln Gallery is. pleai5ed to armoulTlue II Canal ZOllle:; an
exhIblt1lQn of ">eW j:l<a Intlli'lgs by Richard Prtnce.
Gagosian Gallery Website (A-361)
'-'lEW
Additional publicity was sought through an essay contained in the
Canal Zone Catalogue, based on Prince's screenplay, by James Frey, the notorious
author of the bogus memoir, A Million Little Pieces. (A-137-138 at
200:9-202:11; A-178 at 112:3-113:2.) According to one Gagosian Gallery
employee, Frey's name was to appear on the title page of the Catalogue so it would
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RICHA D RINCE
November8-December20,2008
Opening reception Saturday, November 8, 6-8pm
Gagosian Gallery
555 West 24th St, NewYork 10011
T 212.741.1111
www.gagoslan.com
dGt>EXHIBIT~
De
!'AC Dli rJlll.-O
p o n e n t ~ __
I 'Loll +(d0 IJ..
Date__Rptr..!...lb..
WWW.DtFOBOoK.o:JIM
GGP00140A
Gagosian Gallery Announcement Card (A-371-372)
A dinner was held for the opening of the Canal Zone show on
November 8, 2008. (A-377; A-190 at 26:4-28:11.) Everyone on the invitation list
was approved by Gagosian, who was "very strict" and "super intense" about giving
his approval. (A-171 at 51:16-55:23; A-380; A-384-385.) A Gagosian Gallery
employee wrote: "Larry would like the opening and dinner to be 'kick ass' so
please invite celebrities/momalgugg/whitney curators and other clients who will
BUY his work." (A-386.) Another of his employees wrote: "Before Larry
approves this list he would like to know if you have sold any art to these people. If
so, he would like to see proof." (A-387.) Gagosian testified that the invitation list
(A-388-394) included celebrities (e.g., Tom Brady, Robert De Niro, Leonardo
34