The decision holding Richard Prince liable for infringing Patrick Cariou's copyright in photographs Prince appropriated (which I wrote about 3 days ago) continues to inspire commentary. Donn Zaretsky does his typically excellent work in collecting the range of intelligent commentary and adding his own. He points to what he considers the key point in the decision, the judge's belief that Prince's appropriation was not sufficiently "transformative" to constitute fair use of Cariou's photographs because Prince's work did not sufficiently comment on or otherwise refer back to Cariou's photographs (hyperlinks in original): [T]he key bit is that the court rejected the fair use defense because, as Artnet's Walter Robinson puts it, "Prince's works do not specifically comment on Cariou's originals." (Robinson says: "Face it, the notion of 'appropriation' just doesn't play well in our law courts.") The NYT's Randy Kennedy writes that "Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must 'in some way comment on, relate to the historical context of, or critically refer back to the original works' it borrows from." That hasn't always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used "Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media" (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch's image). Quoting the Supreme Court's Campbell decision, the court said the test of transformativeness is whether the later work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." As I wrote the other day, I think the "key" element in the case is the evidence that Cariou had (and that the court apparently found credible) that he had been directly damaged by the appropriation. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince's works that appropriated Cariou's photographs. As a result, the gallery owner considering a show for Cariou's works backed off, because "she did not want to exhibit work which had been "done already" at another gallery. Slip op. at 6-7. In other words, Prince's work essentially was functioning as a direct market substitute for Cariou's work. That is a far cry from the situation in Blanch v. Koons, in which the Second Circuit Court of Appeals held that Jeff Koons' appropriation of a photograph in a collage constituted fair use. There was no reason in Blanch to believe that Koons' work in any way damaged any market for the appropriated photograph. Moreover, Cariou's case does not and cannot conceivably be interpreted to overturn Blanch, in which, as Zaretsky correctly notes, the Second Circuit approved Koons' use of "'Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media' (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch's image)." Judge Batts' apparent belief that in order to be sufficiently transformative to qualify as fair use an artistic appropriation must comment on or otherwise refer back to the appropriated work is certainly open to question even apart from the unquestionable continuing vitality of Blanch. The proposition that an appropriation must comment on the original to constitute fair use originates in commentary on Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, (1994), in which the Supreme Court held that 2 Live Crew's appropriation of Roy Orbison's Oh, Pretty Woman was a non-infringing fair use. While the Court did stress the ways in which 2 Live Crew's reworking of the song "parodied" Oh, Pretty Woman, I think it is worth wondering whether one's principal reaction to 2 Live Crew's song is that it is making fun of Orbison's song. More importantly, Justice Souter, writing for the Court, emphasized that the less an appropriating work damages the market for the original work it appropriates, the less it needs to reflect directly back on the original to the degree to constitute a non-infringing fair use: A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. Id. at 580, n. 14. And, indeed, this understanding fits perfectly the decision in Blanch, in which it would be absurd to suggest that Jeff Koons was parodying the specific photograph he appropriated rather than using it to comment on the worlds of commercial and fashion photography in general: Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "`in the creation of new information, new aesthetics, new insights and understandings.'" When, as here, the copyrighted work is used as "raw material," in the furtherance of distinct creative or communicative objectives, the use is transformative. The test for whether "Niagara's" use of "Silk Sandals" is "transformative," then, is whether it "merely supersedes 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."The test almost perfectly describes Koons's adaptation of "Silk Sandals": the use of a fashion photograph created for publication in a glossy American "lifestyles" magazine – with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative. Blanch v. Koons, at 467 F.3d at 252-53. I think it is crucial to remain cognizant of the fact that the case law establishes that there can be transformative use of copyrighted work in art other than art that ridicules copyrighted work. I have gone on at great length on this blog about the ways our conventional notions of authorship are too narrow and historically ignorant. But Ray Down is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, specifically, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here's an excerpt: Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists. And look at L.H.O.O.Q. – nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer. But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it. To me, an original work of fine art properly labeled as such by a new artist is almost pure speech – or in some way pure idea – even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince's "appropriation" added ten million dollars worth of value to a pile of books. Everyone knew he didn't create the original. This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers – surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince's prices will probably soar – scarcity and scandal drive art prices up. From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror? In short, I think Dowd is right, but I also think the death knell of non-parodic appropriation is being rung without reason. Finally, I think that if Cariou convinced the court that Prince's appropriations robbed Cariou of real opportunities to sell his photographs, the outcome of Cariou's case is obviously correct and does not threaten the kind of appropriation case people like Zaretsky, Dowd, and I talk about when we talk about appropriation by the likes of Prince, Koons, and Shepard Fairey.
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