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‘Misappropriation’ Art or Transformative Fair Use? It’s Complicated!

October 17th, 2013 by Mickey Osterreicher and tagged , , , , , , , ,

In the ongoing copyright infringement case by photographer Patrick Cariou against “appropriation artist” Richard Prince, both sides have filed briefs respectively supporting and opposing the August 21, 2013 petition for a writ of certiorari filed by Cariou, appealing the April 2013, ruling in the case by a three judge panel of the United States Court of Appeals for the Second Circuit. That decision reversed and vacated a 2011 lower district court order involving the application of the fair use doctrine to artistic works. Cariou originally published his photographs in 2000 in a book entitled Yes, Rasta, while Prince’s work was exhibited in 2008 as Canal Zone collages.

In his petition to the Supreme Court, Cariou argued that the Second Circuit ruling placed too much emphasis on whether Prince’s works could “reasonably be perceived” by the judges as transformative rather than properly balancing the traditional four factors involved in determining fair use.

Cariou also stated, “the Second Circuit majority’s ‘I know it when I see it’ approach [to fair use], should it become widely adopted, risks tilting that balance against copyright owners (particularly photographers who may not have aggressively marketed their easily-copied digitized works).”

Cariou also expressed concerned that if the Appeals Court ruling stands it would make copyrights “dependent upon the unpredictable personal art views of randomly assigned judges.”

In his opposing brief, Richard Prince cautioned against “a narrow interpretation of Campbell [Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)] that is inconsistent with the goals of copyright and that, if followed, would create a bright-line rule limiting fair use to parody and satire, thereby eviscerating this court’s repeated and well-reasoned rule of law that no bright-line rules exist in the fair use analysis.”

Responding to that argument, Cariou’s attorney said the Second Circuit ruling “distorts Campbell [and] unduly elevates ‘transformative’ into a conclusory buzz word that renders superfluous other important parts of the Copyright Act.”

In that ruling the majority held (with a dissent in part by one of the judges) that the use of copyrighted photographs “as raw material” in creating new “artistic” works may be considered “transformative” fair use even when such works do not “comment . . . on aspects of popular culture closely associated with” the photographs or the photographer who took them.  Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).

The district court had initially granted Cariou’s motion for summary judgment, finding that the artwork had infringed upon his copyrighted photographs. The lower court had also entered an injunction compelling “the defendants to deliver to Cariou all infringing works that had not yet been sold, for him to destroy, sell, or otherwise dispose of.”

But the Court of Appeals disagreed with the lower court analysis of the fair use factors and found that whereas “the district court imposed a requirement that, to qualify for a fair use defense, a secondary use must ‘comment on, relate to the historical context of, or critically refer back to the original works,’” they believed the proper determination is “if ‘the secondary use adds value to the original – if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings” (Internal citation omitted). They also found that “for a use to be fair, it ‘must be productive and must employ the quoted matter in a different manner or for a different purpose from the original’” (Internal citation omitted).  With regard to the transformative nature of the work, the court thought it also critical to determine how the work in question may be reasonably perceived by the reasonable observer as compared with the original work.

To illustrate how difficult these types of decisions are, the case involved 30 pieces of artwork, but the appeals court was only able to make a determination on 25 of them, remanding the remaining 5 pieces back to the lower court for application of “the proper standard” so as to “determine in the first instance whether any of them infringes on Cariou’s copyrights or whether Prince is entitled to a fair use defense with regard to those artworks as well.”

In a five page dissent Judge John Clifford Wallace agreed that the lower court’s finding was flawed, but believed that all of the works in question should be remanded for further reconsideration and factual determination under the legal standard just articulated by majority.  He also opined that “perhaps new evidence or expert opinions will be deemed necessary by the fact finder—after which a new decision can be made under the corrected legal analysis.”

Judge Wallace also took the majority to task for employing its own “artistic judgment” when comparing the transformative nature between the two works. He cautions against departing from aesthetic neutrality in that he would feel “extremely uncomfortable” for him do so in his “appellate capacity,” let alone his “limited art experience.”

Noting the court had appeared to move away from that foundational imperative in determining fair use he cited the admonition by Justice Oliver Wendell Holmes that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”

Court watchers believe that the odds of the high court taking this case are slim because no split decisions exist among the other circuit courts regarding fair use. The other factor that mitigates against the court granting the petition is the argument by Prince that the Appeals Court decision is consistent with the Supreme Court precedent on fair use established by Campbell.

Posted in Uncategorized | 194 Comments »



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    Where are we headed with all this photo copyright litigation? The “artwork” in question has clearly been altered and the artist is not trying to display them as photographs he took. How would artists like Warhol & Lichtenstein be viewed today when using stock photos or newspaper photos as the basis for their works? It is my opinion we as photographers need to relax a bit when it comes to “artists” using our work to make other artworks. Such as the Shepard Fairey case…. What? A painter can no longer make a painting based on a photo they’ve seen???? Some photographers need to get over themselves. Let creators create. Go take some more pictures.

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