March 6, 2013: The United States Court of Appeals for the Second Circuit decided last May in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), cert. denied, No. 13-261 (November 12, 2013), that, for all intents and purposes, Richard Prince had created legitimate and original works of art in their own right that did not infringe on Patrick Cariou's copyright in photographs despite the fact Prince's works appropriated substantial amounts and numbers of those photographs. The Second Circuit specifically held that 25 of the works were sufficiently "transformative" of the photographs incorporated into them that they made "fair use" of those photographs and, thus, were not infringing:
[L]ooking at the artworks and the photographs side-by-side, we conclude that Prince's images, except for those we discuss separately below, have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou's. Our conclusion should not be taken to suggest, however, that any cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative. For instance, a derivative work that merely presents the same material but in a new form, such as a book of synopses of televisions shows, is not transformative. See Castle Rock, 150 F.3d at 143; Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1378 (2d Cir.1993). In twenty-five of his artworks, Prince has not presented the same material as Cariou in a different manner, but instead has "add[ed] something new" and presented images with a fundamentally different aesthetic. Leibovitz, 137 F.3d at 114.
With respect to five of Prince's paintings, the Court refused to decide they were non-infringing as a matter of law and sent the portion of the case concerning those paintings back to the trial court so that it could hear evidence and reach a determination under the standards the Second Circuit had laid out in its opinion:
[T]here are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou's that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou's classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a "new expression, meaning, or message."
How the lower court will rule, or even whether it will rule, with respect to those 5 paintings remains to be seen. I would typically expect this type of remand of a small percentage of what was in dispute under standards quite different than the trial court--which had ruled in Cariou's favor--had applied, would be settled between the parties. But given my belief when Cariou first filed his complaint that the case would settle, I've got to wonder whether the parties are just too dug into their respective positions to compromise now. Photographers who support Cariou seem to have given up on the courts altogether and are now trying to lobby Congress to amend the Copyright Act too more narrowly define fair use.
Set forth below are the pieces I wrote in connection with Cariou v. Prince during the years 2009-1011. I am including them here because I think they still do a decent job of setting for the reasons I always thought Prince should prevail and why, even after Prince had lost in the trial, I had either the hard-headedness or the understanding to not back down one bit and to state right out that I believed the trial court had been wrong. In the not so distant future I hope to write a current piece on the 2d Circuit's decision and appropriation art to (1) emphasize those aspects of the decision which clarify points that didn't necessarily need clarification but are now beyond dispute, and (2) to address the concerns many people I know and respect have that the way the 2d Circuit and other courts have applied the fair use test to works of appropriation art provide too little guidance to all the people and corporations whose livelihoods depend on knowing that what they are making is or is not infringing. In the meantime, however, these older pieces are a good introduction to the arguments people were making during the pendency of the case and to the many issues that remain in its wake.
Set forth below are the pieces I wrote in connection with Cariou v. Prince during the years 2009-1011. I am including them here because I think they still do a decent job of setting for the reasons I always thought Prince should prevail and why, even after Prince had lost in the trial, I had either the hard-headedness or the understanding to not back down one bit and to state right out that I believed the trial court had been wrong. In the not so distant future I hope to write a current piece on the 2d Circuit's decision and appropriation art to (1) emphasize those aspects of the decision which clarify points that didn't necessarily need clarification but are now beyond dispute, and (2) to address the concerns many people I know and respect have that the way the 2d Circuit and other courts have applied the fair use test to works of appropriation art provide too little guidance to all the people and corporations whose livelihoods depend on knowing that what they are making is or is not infringing. In the meantime, however, these older pieces are a good introduction to the arguments people were making during the pendency of the case and to the many issues that remain in its wake.
Richard Prince, Patrick Cariou, and Appropriation Art (originally published on April 9, 2009)
Back in January [2009] photographer Patrick Cariou sued Richard Prince, alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. A few days ago Prince fi led his answer, claiming his use of the photographs constituted fair use.
As Brian Sherwin explained at myartspace.com last January, if the case is not settled, the court decision in it could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet:
As Brian Sherwin explained at myartspace.com last January, if the case is not settled, the court decision in it could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet:
[Cariou's] case could be groundbreaking in that it will establish some order concerning fair use{ either for or against it. If the court sides with Cariou and his demands are honoredit would mean that there will be drastic changes in the art world. Gallerists, curators, and publishers may think twice before promoting an artist with a history of copyright infringement allegations.
Prince has been engaged in a particularly confrontational style of appropriation since the 1970's. As Randy Kennedy has written:
Since the late 1970s, when Richard Prince became known as a pioneer of appropriation art - photographing other photographs, usually from magazine ads, then enlarging and exhibiting them in galleries - the question has always hovered just outside the frames: "What do the photographers who took the original pictures think of these pictures of their pictures, apotheosized into art but without their names anywhere in sight?
The vast majority (over 90 %) settle, of course. And it seems likely Cariou's lawsuit will settle too. Prince is very, very succesful, and there likely will be some amount of money he is willing to pay and Cariou is willing to take for them both to avoid a decision that, if it goes against Prince, almost undoubtedly would be appealed and the outcome of which may be very much debatable. So it's unlikely we'll end up with the legal clari cation the art world might desire. But the dependence of fully-developed case law is entirely dependent on the outcomes of individual lawsuits is precisely why such questions can remain so long unresolved. That such questions remain unresolved--with specific aspects of the ultimate answer clarified by case decisions along the way--may in fact be a feature, not a bug. It is, perhaps, a better thing for the art world--artists who appropriate and artists whose work is appropriated, as well as the world of critics, museums, galleries, collectors and patrons that respond to the works of those artists) to slowly work to a solution of these questions among themselves rather than having too crude a solution imposed by a single case (or, more likely, a misreading of a particular case).
Addendum, 3/6/14: Plainly, no settlement was ever reached and I wonder which of the 2, Prince or Cariou, was more resistant to reaching an agreement. I suspect, given the way things went in the trial court (where Cariou first prevailed) that Cariou overestimated the value of his case and chose to chase more than Prince would've agreed to pay because he believed it likely he'd not only get money damages but also at the same time would establish a principle narrowing the circumstances allowing the use by one artist of another artist's work. I am speculating on what I know of the entire record in the case, but I have no inside knowledge. For all I know Prince could've stood on the principle that his own art is original in its own right and that he would not compromise at all on that principle.
Addendum, 3/6/14: Plainly, no settlement was ever reached and I wonder which of the 2, Prince or Cariou, was more resistant to reaching an agreement. I suspect, given the way things went in the trial court (where Cariou first prevailed) that Cariou overestimated the value of his case and chose to chase more than Prince would've agreed to pay because he believed it likely he'd not only get money damages but also at the same time would establish a principle narrowing the circumstances allowing the use by one artist of another artist's work. I am speculating on what I know of the entire record in the case, but I have no inside knowledge. For all I know Prince could've stood on the principle that his own art is original in its own right and that he would not compromise at all on that principle.
Cariou v. Prince: the damage to plaintiff may be far more important than Richard Prince's inability to articulate an artistic intent. (Originally published March 22, 2011)
I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I wrote then that the lawsuit could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet.
The verdict is in: the trial court ruled in favor of Cariou and against Prince.
On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Princes argument that appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated. Slip Op. at 17-18.
On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, to the extent that [Princes works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works. Id. at 18.
There are a several interesting aspects of the case. First, the court emphasized that Prince testi ed that he has doesnt really have a message he attempts to communicate when he making art, and that [i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.
It is a dangerous thing to depend on the artist"s expressed intent in judging the transformative nature of his art. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in plain words that state so well the only reasonable view anyone experienced with art can ,
The verdict is in: the trial court ruled in favor of Cariou and against Prince.
On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Princes argument that appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated. Slip Op. at 17-18.
On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, to the extent that [Princes works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works. Id. at 18.
There are a several interesting aspects of the case. First, the court emphasized that Prince testi ed that he has doesnt really have a message he attempts to communicate when he making art, and that [i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.
It is a dangerous thing to depend on the artist"s expressed intent in judging the transformative nature of his art. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in plain words that state so well the only reasonable view anyone experienced with art can ,
The passageway provided by art is very wide. No single interpretation of art is ever right, not even the artist's own. He or she can tell us the intent of the work, but the actual meaning and signifi cance of the art, what the artist achieved, is a very diff erent matter. (It is pitiable to hear the grandiose discussions of artists' work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the eff ect of our will to accept this responsibility.
What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh's in painting The Irises? Haven't we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2006), the Second Circuit ruled that Jeff Koons' appropriation of a copyrighted photograph constituted fair use and based its conclusion that Koons' use of the photograph was "transformative" precisely on Koons' statements regarding what he intended:
Koons asserts { and Blanch does not deny { that his purposes in using Blanch's image are sharply di erent from Blanch's goals in creating it. Compare Koons [Affidavit at 4] ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these a ect our lives.") with Blanch Dep[osition]. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply di erent objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" con rms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 ( finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly diff erent from the original purpose for which they were created"); see also 17 U.S.C. § 107(1) (fi rst fair-use factor is the "purpose and character of the use" (emphasis added)). 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. Castle Rock Entm't, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as "raw material,"Castle Rock Entm't, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters "as historical artifacts" in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when "the ad [was] not merely diff erent; it di ffer[ed] in a way that may reasonably be perceived as commenting" on the original). 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.'"
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 diff erent character, altering the fi rst with new expression, meaning, or message."Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated);Davis, 246 F.3d at 174 (same). 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 di erent 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.
In short, courts seem to be basing the transformative nature of alleged infringements on the avowed intentions of the artists themselves. Thus, in the decision enjoining the publication of a sequel to The Catcher in the Rye, (Salinger v. Colting, 641 F.Supp. 250 (SDNY 2009), vacated and remanded, 607 F.3d 98 (2d Cir. 2010), Judge Batts, the same judge who ruled against Prince and in favor of Cariou, was almost entirely swayed by the fact the author and his representatives had described the work in words that didn't t the legal standard they wanted to meet:
Until the present lawsuit was led, Defendants made no indication that 60 Years [the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is . . . a marvelous sequel to one of our most beloved classics. . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that 60 Years was a parody or critique of Catcher, Coltings [the new works author] literary agent, Mr. Sane, contended that 60 Years is a completely freestanding novel that has nothing to do with the original Catcher in the Rye. Opinion and Order at 16, n. 3.
Colting, obviously, should have called his work a parody and critique, not a sequel or a freestanding novel. Its odd to think that makes a di fference, though. No matter what he said, his work would be the same. In the same way, it seems odd that Princes refusal to articulate an artistic intent and Koons elaborate description of his own intent are the most signi cant determinants of the legitimacy of their respective artworks.
Of course, there are more obvious was to distinguish Princes case from Koons. Koons use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince's according to Judge Batts, did have an impact on the commercial value of Carious work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Princes works that appropriated Cariou's photographs. As a result, the gallery owner considering a show for Carious works backed o , because she did not want to exhibit work which had been done already at another gallery. Slip op. at 6-7. So we need not go so far as to conclude that Carious lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Princes appropriations damaged Carious opportunities to economically bene t from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.
Addendum, March 7, 2014: In fact, the only real basis I saw for Cariou's victory before Judge Batts--his loss of a gallery show because the gallery owner did not want to have Cariou's photographs compete with Prince's works, turned out to be false. As the Second Circuit pointed out, 714 F.3d at 703-04:
Of course, there are more obvious was to distinguish Princes case from Koons. Koons use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince's according to Judge Batts, did have an impact on the commercial value of Carious work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Princes works that appropriated Cariou's photographs. As a result, the gallery owner considering a show for Carious works backed o , because she did not want to exhibit work which had been done already at another gallery. Slip op. at 6-7. So we need not go so far as to conclude that Carious lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Princes appropriations damaged Carious opportunities to economically bene t from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.
Addendum, March 7, 2014: In fact, the only real basis I saw for Cariou's victory before Judge Batts--his loss of a gallery show because the gallery owner did not want to have Cariou's photographs compete with Prince's works, turned out to be false. As the Second Circuit pointed out, 714 F.3d at 703-04:
Between November 8 and December 20, 2008, [Gagosian] Gallery put on a show featuring twenty-two of Prince's Canal Zone artworks, and also published and sold an exhibition catalog from the show. The catalog included all of the Canal Zone artworks (including those not in the Gagosian show) except for one, as well as, among other things, photographs showing Yes Rasta photographs in Prince's studio. Prince never sought or received permission from Cariou to use his photographs.
Prior to the Gagosian show, in late August, 2008, a gallery owner named Cristiane Celle contacted Cariou and asked if he would be interested in discussing the possibility of an exhibit in New York City. Celle did not mention Yes Rasta, but did express interest in photographs Cariou took of surfers, which he published in 1998 in the aptly titled Surfers. Cariou responded that Surfers would be republished in 2008, and inquired whether Celle might also be interested in a book Cariou had recently completed on gypsies. The two subsequently met and discussed Cariou's exhibiting work in Celle's gallery, including prints from Yes Rasta. They did not select a date or photographs to exhibit, nor did they finalize any other details about the possible future show.
At some point during the Canal Zone show at Gagosian, Celle learned that Cariou's photographs were "in the show with Richard Prince." Celle then phoned Cariou and, when he did not respond, Celle mistakenly concluded that he was "doing something with Richard Prince.... [Maybe] he's not pursuing me because he's doing something better, bigger with this person.... [H]e didn't want to tell the French girl I'm not doing it with you, you know, because we had started a relation and that would have been bad." Celle Dep. 88:15-89:7, Jan. 26, 2010. At that point, Celle decided that she would not put on a "Rasta show" because it had been "done already," and that any future Cariou exhibition she put on would be of photographs from Surfers. Celle remained interested in exhibiting prints from Surfers, but Cariou never followed through.
According to Cariou, he learned about the Gagosian Canal Zone show from Celle in December 2008. On December 30, 2008, he sued Prince, the Gagosian Gallery, and Lawrence Gagosian, raising claims of copyright infringement.
In short, the only reason I believed Judge Batts' trial court decision might have been right was the assumption she had made: that, for whatever mysterious reason, Celle did not believe she could sell Cariou's photographs in competition with the nearby Gagosian. Celle believed no such thing, and if Cariou never had a show at Celle's gallery it seems most likely to be due to the fact that instead of following up with her to plan a show he turned all his efforts to suing Prince.
Appropriation art: is Richard Prince's loss its end? I don't think so. (originally published on March 25, 2011)
The [trial court's] decision [not yet reversed at the time this post was written] holding Richard Prince liable for infringing Patrick Cariou's copyright in photographs Prince appropriated 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:
[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 speci cally 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 di fferent character, altering the rst 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 Princes works that appropriated Cariou's photographs. As a result, the gallery owner considering a show for Carious works backed out 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.
[Editor's note, March 7, 2014: as discussed above, upon review of the trial court record in the Second Circuit Court of Appeals, the evidence of Cariou's "lost gallery show" was no such evidence at all.]
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. Acu -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 rather than importing its parts to make a rather different statement about women. 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 react directly back on the original to the degree to constitute a non-infringing fair use:
[Editor's note, March 7, 2014: as discussed above, upon review of the trial court record in the Second Circuit Court of Appeals, the evidence of Cariou's "lost gallery show" was no such evidence at all.]
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. Acu -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 rather than importing its parts to make a rather different statement about women. 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 react 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 suciently 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 . . . , 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 justi cation for the borrowing than would otherwise be required.
Id. at 580, n. 14. And, indeed, this understanding ts perfectly the decision in Blanch, in which it would be absurd to suggest that Je Koons was parodying the speci c 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 Blanchs image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanchs 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 Niagaras 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 di erent character, altering the rst with new expression, meaning, or message. The test almost perfectly describes Koonss 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 di erent 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 Dowd is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, speci cally, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here's an excerpt:
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 Dowd is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, speci cally, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here's an excerpt:
Fine art, truly new 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 ne 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 ne 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.
Addendum: March 7, 2014: Plainly the Second Circuit's decision on the appeal of Cariou v. Prince has calmed the fear many had that non-parodic appropriation art would largely turn out to be illegal art.
Addendum: March 7, 2014: Plainly the Second Circuit's decision on the appeal of Cariou v. Prince has calmed the fear many had that non-parodic appropriation art would largely turn out to be illegal art.
Distasteful, insensitive, insulting, and totally unacceptable? Sure, but it's PRO-
TECTED EXPRESSION! (originally published on February 8, 2012)
Roy Lichtenstein, Image Duplicator
Is it vitally important to protect the freedom of expression, which enjoys by far its widest scope under
U.S. law? Well, here's a little story about what can happen when people (not governments) decide they
don't like what's being expressed:
U.S. law? Well, here's a little story about what can happen when people (not governments) decide they
don't like what's being expressed:
In 2006, the Danish tabloid Ekstra Bladet investigated the links between the Icelandic bank Kaupthing and tax havens. Kaupthing's managers did not like what they read, but failed to persuade the Danish press council that the paper had done anything wrong. The bank sued for libel in London instead. The newspaper pulled the articles and apologised because English lawyers ran up costs that were beyond its editor's worst nightmares - £1 million,
and that was before a case had gone to court.
Kaupthing went for the paper in England not just because it wanted to kill the original story, but because it also wanted to deter others from spreading the idea that Iceland was not a safe place for investors. The English legal profession obliged. Newspapers' lawyers thought once, twice, one hundred times before authorising critical stories. A few months later Kaupthing collapsed - along with the other entrepreneurial, go-ahead Icelandic banks -
and British depositors lost £3.5 billion. By allowing libel tourists to travel to London and use our repressive laws, the English legal profession had also stopped the British investors from learning of the danger in investing in the country's banks.
You no more hear writers and broadcasters admit that they are frightened of investigating investment banks than you hear them admit that they are frightened of challenging the founding myths of Islam. We cannot puncture our own myth that we are fearless seekers after truth, even though, if we honestly owned up to our limitations, we might force society to confront the fact that modern censorship does not conform to old models. It is a mistake
to think of repression as repression by the state alone. In much of the world it still is, but in Britain, America and most of continental Europe the age of globalisation has done its work, and it is privatised rather than state forces that threaten freedom of speech.
This passion for freedom of expression is part of what drives my passion on behalf of appropriation artists and against Patrick Cariou in his copyright infringement case against Richard Prince. One of Cariou's purported motivations in bringing the lawsuit was to vindicate the o ense taken by the Rastafari (the subjects of Cariou's photographs that were appropriated by Prince) at Prince's images. As the Caribbean Rastafari Organization put it in its "Statement of Protest and Demand for Cancellation" of Prince's exhibit:
[Prince's exhibit] is egregiously disrespectful of Rastafari culture and peoples, and repeats racial stereotyping that is morally o ensive and that has no place in the 21st century. So-called artistic license cannot permit the trivialization and abuse of a people still marginalized by race and gender to evoke images of subordination and exploitation of Africans and women. This is a legacy of the European colonial enterprise that continues to have a negative impact on African peoples in the Americas and it is a legacy that the Rastafari have resisted and condemned for nearly 80 years. Rastafari at the vanguard of Pan-African Liberation ceaselessly demanding justice based on truth and right, and the Canal Zone exhibit distasteful, insensitive, insulting and totally unacceptable.
I am willing to accept entirely the characterization of Prince's work as "distasteful, insensitive, insulting, and totally unacceptable" and still believe that under U.S. law those qualities supply no basis on which to suppress his work, either directly on behalf of the Rastafari or because such work is less deserving than any other sort of expression of First Amendment protection (and therefore deference even in the face of a copyright claim). For god' sake, the First Amendment protects the rights of Nazis to march through a community full of Holocaust survivors. In comparison to the off ense even the most sensitive of Rastafari must take at Richard Prince's "Canal Zone" series of photographs, it surely pales at the injury su ered by a Holocaust survivor required to tolerate the march and rally of a group of Nazis outside his home in the middle of Illinois.
Nor is it stretching a point to compare the use of British libel laws to shut down truthful reporting about dishonest financial dealings to the use of copyright infringement lawsuits to censor speech we'd be better off hearing. I've written more than once about private interests shutting down critical speech they don't like.
I cannot emphasize this point enough. Cariou himself is not the only artist who believes appropriation art is illegitimate. Artists who believe that are undercutting their own souls. As Judge Alex Kozinski once wrote in dissenting from the 9th Circuits refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her right of publicity by appropriating her identity:
Nor is it stretching a point to compare the use of British libel laws to shut down truthful reporting about dishonest financial dealings to the use of copyright infringement lawsuits to censor speech we'd be better off hearing. I've written more than once about private interests shutting down critical speech they don't like.
I cannot emphasize this point enough. Cariou himself is not the only artist who believes appropriation art is illegitimate. Artists who believe that are undercutting their own souls. As Judge Alex Kozinski once wrote in dissenting from the 9th Circuits refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her right of publicity by appropriating her identity:
[I]t may seem unfair that much of the fruit of a creators labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the systems very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it.
White v. Samsung Electronics America, Inc., 989 F.2d 1512 (1993).
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