Fair use update: I wrote last year about the fair use case in New York involving photographer Richard Prince, where a federal district court rejected Prince’s claim of fair use of photographer Patrick Cariou’s photos of Rastafarians.
Prince appealed his defeat and late last month won a reversal from the US Court of Appeals for the Second Circuit, in New York. The case may not be all that useful guidance for would-be artists on the limits of fair use – more on this below – but more of a legal scrum over what is (or is not) a “transformative” use of a previously copyrighted artwork. Or more particularly, how much a court should get involved in evaluating whether a later user’s re-use of an earlier artist’s work is “transformative” at all.
The lower court had held that Prince’s lack of commentary about Cariou’s works undercut any fair use argument. Judge Deborah Batts had 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 Judge Batts ruled that Prince’s works failed.
- Patrick Cariou´s photo as published in Yes Rasta, left, and Richard Prince´s artwork, right. Prince´s remixed version stirs up a copyright controversy. (The Verge/ Adi Robertson)
The appeals court agreed with Judge Batts that Prince’s works did not comment on Cariou’s works, but held – as a legal matter – that that lack of commentary could not be dispositive of the question of whether a work is “transformative” in order to satisfy a fair use test. Rather, “the law does not require that a secondary use comment on the original artist or work, or popular culture,” but only that a reasonable observer find the work to be transformative.
Instead, the court of appeals found (as Adi Robertson described it in The Verge) that “Prince created something new simply by departing radically from the original”, and that was enough. On the other hand, Prince’s victory was not complete, and the court wrote that with several of his photos “Prince did not alter the source photograph very much at all”, and ordered decision on these photos returned to the district court for further review.
In her defense Judge Batts in the district court had based her decision in good part on a deposition in that case given by Prince, where he stated explicitly that he had not intended “to create anything with a new meaning or a new message.” It would seem that in Judge Batts view, arguably, Prince had essentially admitted his intent to copy, not to “transform”, making his later fair use claim at best convenient.
On the other hand, that seems illogical unless Prince’s intent – overtly – was to violate copyright laws, and if that were the case why would he make fair use arguments at all in his trial? And the court of appeals essentially took the same view, ruling that Prince’s stated intentions by themselves could not be dispositive. Or in other words, that fair use is an objective factual analysis.
The weird part of the decision is its legal holding that the majority of Prince’s works were in fact “transformative”, rather than simply returning the case to the district court for further review based on a revised understanding of the fair use test. The court of appeals ruled that these works did qualify as fair use, rather than ruling that the works could qualify as fair use depending on a factfinder’s determination. That is a powerful victory for Prince in this case, but perhaps a worrisome ruling for others where a fair use decision may be arbitrarily dependent on whether a panel of judges approves the transformative merit of a given work of art. As commentator David Kluft wrote last week about the case,
The most important inquiry might not even be whether the work is transformative, but rather whether the finder of fact – as “reasonable observer” – thinks that the work is transformative enough. So next time you take someone else’s image and simply add a guitar, maybe you should think about adding some drums and a bass as well. And would a little more color hurt?
The court of appeals wrote,
Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.
Again, the point is that this finding that the works were “provocative” and “jarring” was a legal determination by the court of appeals, and thus a fair use victory for Prince.
This point didn’t escape Judge John Wallace in the court of appeals, who dissented from this part of the ruling, writing that he saw “no reason to discount” Mr. Prince’s statements as part of the overall body of the evidence. Randy Kennedy writes in the New York Times that “Judge Wallace also added that he disagreed with the court’s reliance on its own judgment to decide which of Mr. Prince’s works were transformative and which were not….” As Judge Wallace put it, “It would be extremely uncomfortable for me to do so in my appellate capacity, let alone my limited art experience.”
Adi Robertson makes a similar point in The Verge, noting the precedential limits of a single case with highly specific facts involving a legal doctrine – fair use – which itself is “determined on a case-by-case basis”. But while it’s true that fair is case-specific, for that same reason courts look to prior rulings for guidance, and this case would seem to expand the palette of available defensive arguments for arguments. As Robertson notes, Prince’s case “bolsters the legal argument that simply remixing a work can turn it into something that transcends its original.”
Add Comment