A recent New York Times article discussed the case of an artist was sued for copyright infringement after he created paintings and collages based on photographs without crediting or obtaining permission from the photographer.
The artist, Richard Prince, based his works on photographs from a book about Rastafarians “to create the collages and a series of paintings based on [those photographs],” reported Randy Kennedy in the Times.
Then ensued a discussion of the degree to which material must be transformed to fall under copyright law’s “fair use” protection, which would allow use of copyrighted material if, as the article explains, “the new thing ‘adds value to the original’ so that society as a whole is culturally enriched by it.” (The reference is to a 1990 Harvard Law Review article by Federal Judge Pierre Leval. I previously discussed fair use’s 4-prong analysis in the context of photographs and artwork, here and in mashups here.)
In the Prince case, Judge Deborah Batts of New York Federal Court held that Prince infringed the photographer’s copyrights.
Prince has his defenders. “The part that really troubles me about these discussions,” commented one such defender on TechDirt, “is a rather simple point about fair use: if the new work does not, in any way, harm the original work, it seems positively insane to me to think that it shouldn’t be seen as fair use.”
And it is true that fair use does look to whether the later work harms the market for the copyrighted original work. But market harm (or lack thereof) is only one part of the test: After all, fair use is an exception to copyright, a creator’s exclusive “right to copy” (literally), and prevent others from doing so. A proposed copying must show more than simply that the originator’s market was unharmed. It may be true, but by itself that doesn’t overcome society’s determination that a grant of exclusive right of copying was justified.
More indeed is what Marina Galperina, a commentator on the AnimalNewYork website, describes in distinguishing between material that has and has not been adequately (for fair use purposes) “transformed”. As “good” fair use, Galperina cites an art exhibit that made liberal use of Disney copyrighted images. “When 0100101110101101.org lynched Mickey Mouse, they stole a recognizable commercial visual and re-invented it in their own sick context,” she says. “That’s cool.”
Galperina next offers another art exhibit featuring panda designs in which a designer sampled patterns from other designers. She writes, “When [the panda culprit] ‘borrowed’ a design from a designer and essentially wallpapered it into his design piece without updating the context, adding meaning or doing anything but putting squiggly lines around it …. That’s weak.”
Galperina and Kennedy both make the point that attitudes about artistic fair use – or “the borrowing ethos” – seem to change as technology allows images to be gathered, manipulated and disseminated easily and without attribution. So, for example, Galperina cites the iPad app Mixel, which bills itself as “the first social art app.” The app, created by a former New York Times staff writer, allows users to make and share collages, using any web-based images.
Although Mixel’s Terms of Service do not overtly restrict use of previously copyrighted material, Mixel does encourage users to submit complaints if they think intellectual property has been improperly used. “If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated,” the policy reads, “you should notify Mixel of your infringement claim.”
Digital capabilities notwithstanding, what is not new about “fair use” is how difficult it remains to articulate outside of actual examples. The Prince case is high-profile because of the notoriety of the artist, media sensitivity to decisions of the New York federal courts and yet another example of the increasing ease of access via digital technology. All art is available instantly – and effortlessly – to all other artists not only for study and inspiration, but for incorporating, manipulating and, yes, transforming. At the National Gallery’s fine exhibit on Picasso’s early drawings, an information board describes how Picasso’s formative years coincided with the emergence of the great museum retrospectives in Europe. Picasso made brilliant use of these experiences, referentially incorporating into his works the ideas of his contemporaries and great predecessors.
Digital technology does not change any of this, and probably at worst just rapidly accelerates – and escalates the tradition. As Kennedy writes in the Times,
[T]oday’s flow of creative expression, riding a tide of billions of instantly accessible digital images and clips, is rapidly becoming so free and recycling so reflexive that it is hard to imagine it being slowed, much less stanched, whatever happens in court. It is a phenomenon that makes Mr. Prince’s artful thefts … look almost Victorian by comparison, and makes the copyright battle and its attendant fears feel as if they are playing out in another era as well, perhaps not Victorian but certainly pre-Internet.
But it is nowhere clear how these developments should be cause for change in fair use law, or more specifically why existing fair use analysis cannot govern the changed landscape. If the test remains whether a use is “transformative”, then the problem may be with the meaning of “transformative”. Defendant Prince was asked in his deposition “What is the message [of his art]?” To which Prince replied, “The message is to make great art that makes people feel good.”
That kind of honesty itself may be worthy of some protection, although his lawyers may have preferred that he simply tell the judge what she may have wanted to hear. What she may have wanted to hear was the standard for “transformative” use stated by the Supreme Court in 1994:
… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).
Which itself was merely illustrative of the main text of the fair use law, which states:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. (emphasis added)
As reported in the Times, Prince “also made it clear that he was not making art that commented on Mr. Cariou’s work itself. (Judge Batts ruled that for a work to be transformative it must “in some way comment on, relate to the historical context of, or critically refer back to the original works” it borrows from, a test she said Mr. Prince’s work failed.)”
Kate Tummarello, a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly, contributed to this post.
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