Copyright, Fair Use and Collage Art

In late May, Chicago-based photographer Barbara Karant filed a copyright infringement lawsuit against the artist Mickalene Thomas. 

According to the lawsuit, Thomas allegedly used more than a dozen of Karant’s photographs in her recent exhibition All About Love. The exhibition is currently on tour and features over 90 works. 

As for Karant, her images are part of a series she entitled 820 Ebony/Jet. The photographs, taken between 2013 and 2015, highlighted the interiors of the former Johnson Publishing Company headquarters. 

The company previously published Ebony and Jet magazines, but was shuttered in 2010. Karant captured the interiors of the building, showing both unique art and architecture as well as the state of disrepair and decay.

According to the lawsuit, Karant has plans to publish a book based on these images in the near future. However, she alleges that the use of her photographs in Thomas’ exhibition has harmed her ability to sell or license her work.

However, if you’re a long-time reader of this site, or just a copyright enthusiast in general, this story may sound strangely familiar. That’s because of a similar battle between photographer(s) and artist, this one involving the “appropriation artist” Richard Prince.

A Brief Recap of the Richard Prince Story

In December 2008, artist Richard Prince, along with the Gagosian Gallery, was sued for copyright infringement by photographer Patrick Cariou. 

Cariou alleged that Prince had infringed some 35 of his photographs, featuring images of Rastafarians captured in Jamaica. Prince had taken those photos and added doodles and other elements to them. According to Prince, this amounted to fair use, but Cariou disagreed.

Though the lower court ruled against Prince and the other defendants, in April 2013, the US Court of Appeals for the Second Circuit reversed that decision in large part. It found that 25 of the remaining photos were examples of fair use and only five less transformative ones were not. Those were sent back to the lower court, but the case was settled before it reached a trial.

The case was widely seen as a high watermark for the idea of transformativeness in fair use. Many photographers and artists were upset that Prince was protected under fair use, and feared that this decision would set a precedent that could harm other creators, in particular photographers.

However, things changed drastically in May 2023. That was when the US Supreme Court ruled in a case involving the artist Andy Warhol and the photographer Lynn Goldsmith. There, the court ruled that Warhol’s use of Goldsmith’s photographs was not fair use and greatly reduced the scope and importance of transformativeness in fair use.

This had a major impact on Richard Prince himself. In January 2024, less than a year after the Warhol decision, Prince and two separate plaintiffs reached a consent judgment, ending the similar copyright infringement lawsuits. That judgment gave a significant victory to the photographers, giving them payment equal to 5 times the sale price of the works and all their legal fees.

While this judgment means little in the way of precedent, it is noteworthy that Prince, an artist who has repeatedly gone to the mat to defend his idea of fair use, backed down following the Warhol decision.

That’s because the standard for determining fair use looks a lot different post-Warhol. The environment Prince was in in 2024 was very different from the one he was in in 2013.

That brings us back to the Karant/Thomas case.

A New Test for a New Era

Every fair use case brings with it a new set of facts. This case is no different. Though the comparison to Richard Prince is obvious, it is worth noting that Mickalene Thomas is not Richard Prince, and Barbara Karant is not any of the photographers who sued him.

If this case goes any kind of distance, a judge and/or jury will have to look at it item by item and make difficult decisions about what is and is not copyright infringement. Because of that, these cases are inherently difficult to predict, and it is possible for reasonable people to disagree.

All that said, if I were in Thomas’s shoes, I would not be feeling very confident. 

Though Thomas’s works are more transformative than many of Prince’s, they are actually speaking to many of the same issues as Karant’s work, namely black identity and history. It’s also worth noting that Thomas’s work is not commenting on Karant’s work, which was a big part of why Warhol’s use of Goldsmith’s photographs was found to not be transformative.

Then there is the commercial aspect. Thomas’s work is clearly a commercial endeavor, and Karant can point to legitimate harm with her book due out later this year. Absent a clear transformativeness argument, that could weigh heavily in favor of Karant should the case move forward.

This feels like the perfect example of a case that would have likely been considered fair use in 2022, but not in 2024.

However, it is still an open question about how the courts will apply those new standards to this case. Like I said, every fair use case brings a new set of facts. If this case progresses, it will be interesting to see how the courts apply the new standards to this set of facts.

Still, if Richard Prince didn’t feel comfortable continuing a fair use fight post-Warhol, I can’t fathom Thomas feeling much more confident.

Bottom Line

The Warhol ruling was a major shift in the fair use landscape for just about everyone. However, it was most targeted and most impactful for artists who use other people’s work when creating their own. That is why Prince backed down and why Thomas may not be in the best of positions.

If this lawsuit had been filed just a few years ago, I would have had a lot more confidence in Thomas’ position. As things sit right now, I’m skeptical.

That’s not to say that Thomas’ case is doomed or that she clearly is an infringer. Instead, it’s that her path to asserting fair use is much more fraught than it would have been just a few years ago.

This case is going to be one to watch and, if it makes it to a trial or a judgment, it could be a strong indicator of how the courts will apply that Warhol ruling.

That said, I think the most likely outcome of this case is a settlement. Not only is that largely true for all cases, but I can’t imagine either side seeing much benefit in taking this all the way to a trial. It’s a high-risk case for both sides. However, the rewards are likely not big enough to incentivize a lengthy legal battle.

Lynn Goldsmith, the victor in the Warhol case, had to sell her house to fund her legal campaign, in which her costs were over $2.5 million. In the end, she only received a bit more than $21,000 in damages, costs, and licensing fees. 

Very few litigants are willing or able to take that kind of risk, which is why settlements are so common and likely to happen here.