Who wrote "I know it when I see it"? Do you think:

a. Jon Stewart, about comedic talent;

b. Rod Stewart, on pulchritude;

c. Jeb Stuart, concerning military audacity; or

d. Potter Stewart, in reference to "hard-core pornography".

The Second Circuit wrote something like that when it ruled on April 25 that Artist A's reaping in Artist B's garden, where Artist A had not sown, counted, as a matter of law, as "fair use" under the Copyright Act of 1976. The panel thus tossed a district court's decision that went the other way. Cariou v. Prince, No. 11-1197-cv (2d Cir. Apr. 25, 2013).

The case dealt with a claim by Patrick Cariou that Richard Prince infringed Cariou's copyrights in photos he'd taken during close study of Rastafarian people in Jamaica. Prince copied the smallish images into mostly big works, which his lawyers deemed "transformative" and therefore satisfying a critical part of the test for a fair use defense to Cariou's infringement claim.

The district court granted judgment to Cariou, holding that Prince hadn't done enough to transform the Cariou output. They key consisted in Prince's failure to "comment on, relate to the historical context of, or critically refer back to" the efforts by Cariou, the court thought.

The Second Circuit begged to differ. It opined that an artist can transform someone else's work without meaning to say, or actually saying, anything about it. And at least 25 of the images at issue dropped anchor in the fair use safe harbor as a matter of law, the two-judge majority ruled. The third member on the panel — a guest from the Ninth Circuit — said he would have fixed the legal standard and sent the case back for findings and conclusions by the district court in the first instance rather than deciding the issue in the apeal.

All agreed that they know fair use when they see it.

Blawgletter wishes to offer a couple of thoughts.

One, while we don't disagree with the substance of the majority's reasoning and decision, we do see a lot of merit in the dissenter's view that trial courts ought to have the first shot at ruling on a question of what conclusion the evidence leads to. Trial judges do that very well. Appellate judges do it less well, not least because they do it seldom and, on account of their relative isolation and their lack of contact with juries and other ordinary people, have less sense of community standards and a stronger streak of elitism. Cf. "The frequent irrelevancy of the Supreme Court", Hercules and the Umpire, Apr. 24, 2013 ("In short, while the Supreme Court may exist at the 'center of the universe,' it frequently plies its trade in a 'galaxy far, far away.'").

Two, Prince made a terrible witness for himself. In his deposition, he testified that he had zero intention of making something "new" out of Cariou's Rasta photos — an admission that forced the majority to say his mental process mattered almost not at all. We wonder whether Prince told his lawyers beforehand that he planned to torpedo his best defense or whether he simply came out with it in a spontaneous burst of artistic freedom.

Bonus: Will the dissenting visitor ever get another invitation?

Hat tip to ABA Journal.