The NPPA joined several other photographer and writer advocacy groups today in filing legal documents urging a New York judge to find that an artist who used a photographer’s images in art exhibits without permission did so in violation of copyright law.The decision in the case represents a test of a key legal doctrine, and will hopefully both clarify and place a reasonable limit on the “fair use” defense, which allows use of an otherwise copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research.
In 2007 and 2008, artist Richard Prince altered and incorporated 30 of Patrick Cariou’s pictures into paintings and collages displayed in St. Barth’s and New York City. Cariou captured the images, which appeared originally in his Yes Rasta collection, over the course of six years living amongst Rastafarians in Jamaica. When Cariou discovered Prince’s work, he sued the artist for copyright infringement.
Prince defended the 2008 suit under the fair use doctrine, arguing that by incorporating the images into a new context, a collage or painting, he had “transformed” the pictures sufficiently to claim fair use. A U.S District Court judge disagreed, holding that the art did not transform the images in a manner that was meant to critique or otherwise comment on them.
The district court’s decision was almost completely overturned earlier this year, when the Second Circuit of the U.S. Court of Appeals found the lower court had applied an incorrect legal standard.
The court found that “[t]he law imposes no requirement that a work comment on the original or its author in order to be considered transformative” and that 25 of the photographs Prince used were protected as fair use. The remaining five images presented “closer questions” the court said, as alterations to their physical appearance was minimal. See earlier NPPA story here.
The question of whether or not a work is “transformative” is central to a fair use analysis, the court noted, as transformative works … lie at the heart of the fair use doctrine’s guarantee of breathing space.” Applying an inclusive definition of the doctrine, the court found that a work could qualify as fair use even if it is not one of the aforementioned uses included in the copyright statute. The Second Circuit found that all that is required is that the work communicates “new expression, meaning, or message.”
Now, as the District Court prepares to reconsider copyright claims related to the remaining five works, the NPPA along with the American Photographic Artists, American Society of Journalists and Authors, American Society of Media Photographers, Graphic Artists Guild, Jeremy Sparig, Picture Archive Council Of America and Professional Photographers of America have all joined in amicus brief in support of Patrick Cariou in that the defendants in this case have not met their burden under the fair use defense with regard to the five paintings being considered on remand.
NPPA General Counsel Mickey Osterreicher articulated this position in an affidavit to the court as part of the brief drafted by attorney David Leichtman of the law firm of Robins, Kaplan, Miller & Ciresi, LLP. “If a lawsuit is brought [under the Second Circuit’s standard] , original photographers seem to be facing a judicial system that continues to eviscerate their rights as copyright holders by ruling more and more unlicensed derivative uses as “fair use,”” Osterreicher said, “However, fair use was not meant to be an offensive assertion permitting infringers to believe that they have the right to misappropriate and infringe on copyright holders’ rights with complete immunity.”
Osterreicher also noted that a broad interpretation of the fair use defense threatens critical economic models of the photography industry, and categorically protecting works like Prince’s from claims of infringement sets a dangerous precedent.
“Along with inclusion in various media, NPPA members make images available for licensing for uses such as those of the works created by Prince. If Prince needed an image of Jamaica, or Rastafarians, these images could have been, and should have been, lawfully licensed easily and for the appropriate standard license fees,” Osterreicher said, adding, “Any image has the potential to be licensed for multiple purposes. To isolate ‘art reference’ or ‘art’ as special classes of use that no longer require any licensing, weakens the licensing model and opens the door to more and more unlicensed uses.”
Appropriately cabining the fair use defense is especially important today, in an environment where monitoring infringements is increasingly difficult, and their economic toll continues to mount.
“NPPA members must shoulder the burden of policing infringements while at the same time seeking and fulfilling photographic assignments, working on self-initiated projects and maintaining all of the tasks of running a 24/7 business. For many, losses due to infringement have been devastating,” Osterreicher said.
The NPPA will continue to monitor the case and report on any significant developments.
Posted in Access, copyright infringement, Daniel Morel, Fair Use, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | 24 Comments »