April 26, 2013

The 2d Circuit court says the "fair use" copyright exception doesn't require that a new work of art "refer back to the original."

Richard Prince used somebody else's photographs in his collages, and the court said it's enough that a reasonable observer finds the new work "transformative."

The photographer, Patrick Cariou, made "serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs," the court said. But "Prince’s crude and jarring works, on the other hand, are hectic and provocative."
In her decision in 2011, Judge Batts gave Mr. Cariou the right to destroy the “Canal Zone” paintings that had not been sold to collectors, a remedy that was criticized by Judge Barrington D. Parker Jr. of the Second Circuit during oral arguments last year.
Destroy?!! But look what Prince did with Cariou's photographs: here. And Prince sold the works for more than $10 million. And yet, don't you feel free to take a book of photographs you own, cut out the pictures, paste them onto poster-board, and scribble and scratch on them? If you made some creepy ugly image out of photos of beautiful models, wouldn't you feel that was yours all yours?

There's a high art/low art issue here. There's the way that the snooty people who exhibit in an elite gallery think they owe nothing to the relatively low people who take sentimental photographs. But that's a topic for debate, not a reason for the photographer to hit up the high-class artist for money or — absurd! — claim a right to destroy the expensive articles of commerce.


Paco Wové said...

Whenever I think bad art can't get any worse — it gets worse.

Saint Croix said...

I made a photo storyboard once using photographs of Marilyn Monroe, Audrey Hepburn, and a bunch of other people. I was participating in a contest run by Amazon Studios. I spent a couple of months putting the movie together.

The studio removed my movie from the website, and the contest, claiming that I had violated intellectual property law. I was like, "Andy Warhol used Marilyn's image, why can't I?" But they were terrified of lawsuits.

Unknown said...

Prince is making book with someone else's artistic expression. He certainly shouldn't be allowed to profit to the tune of 10 million. If he wants to do that to photos, he can take his own photos and do anything to make them "edgy" or "gross" or anything he wants. But they would be HIS, not someone else's. The judge was correct in allowing the photographer to destroy them,

Paco Wové said...

"The judge was correct in allowing the photographer to destroy them,"

I'd say he performed a public service.

Steven said...

Widen your perspective, Ann!

If you're thinking in terms of Anglo-American copyright, sure, it's a topic for debate. It you're thinking in terms of, say, French droit de auteur, though, Mr. Cariou has an inalienable and perpetual right to prohibit modification of his work (droit au respect de l'intégrité de l'oeuvre).

And, hey, the Berne Convention mentions moral rights, and the Berne Convention is an international treaty to which the US is a party; Mr. Cariou should appeal to the Supreme Court. Sure, the US Congress has said that moral rights don't extend beyond those in copyright law, but the US Congress said the US wasn't party to the prohibition on execution of persons under the age of 18. The Supreme Court can cite foreign precedent to read whatever the hell it likes into the law.

Bruce Hayden said...

Steven - that was one of the big reasons that our Berne implementation legislation made clear that the treaty was not self-executing. And, last time I read the treaty, there were no such provisions in what we signed and ratified.

Moral rights (or your droit de auteur) scared the bejesus out of the American copyright bar. Bad enough that we were getting automatic copyright and elimination of formalities as a requirement for copyright, something that had been in our law since the founding (if I remember right). But, giving artists control over their works long after they had sold them went way too far. (And, yes, we have accepted some of such rights with some rights over tearing down buildings with art on them, but that specific exception would seemingly prove the rule that Congress never intended allowing anything close to moral rights).

Roadkill said...

High art/low art issue?

More like non-art. Typical Po-Mo trash.

Bruce Hayden said...

I don't work in the area of art, and copying of much of the original expression, but then adding some more original expression (transformally) would qualify as Fair Use at first surprised me. Fair use is controlled by a four part test under 17 USC 107, and none of the factors would seemingly do more than minimally swing to the favor of the copier: 1) the work was for money; and 3) a substantial portion of the original expression of the allegedly infringed works were infringed. The second factor (nature of the work) would seemingly cut in favor of Fair Use, while the fourth factor (effect on potential market for copied work) would seemingly be fairly neutral. So, a lot of courts would likely score it 2-1 against Fair Use.

Which gets to the preamble, which sets out some provisionally allowable uses, and the only ones that I could see as being relevant are "comment" and "criticism". Not sure how a "transformative" use fit in there, though those uses are suggestive, and not limiting.

That said, Fair Use here does make sense. Much of art is variations on different themes, and creation of derivative works, of some sort or another, is fundamental to the creation of art. So, I think that looking at Fair Use from that point of view gets you to the "transformative" test. Too close to the original, and you come closer to mere "reproduction" than the true creation of a derivative work (Not that that will take you out of copyright with Fair Use in many situations, because it won't).

Here is the legal problem, and that is that a "derivative work" is defined (17 USC 101) as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted...", but that one of the exclusive rights of a copyright owner is the control over the creation of derivative works (17 USC 106(2)). This would seemingly give the copyright owner control over creation of this type of derivative works. So, seemingly, the judge (and other courts) imported the concept of "transformation" from the definition of "derivative work" into Fair Use, ignoring that that definition is utilized to define one of the exclusive rights of copyright owners.

Enjoyed this learning experience. Referred a good friend out last year to a real "art attorney" for just this sort of reason, despite knowing enough about other areas of copyright to actually advise clients without committing malpractice.

BTW, the decision (PDF) can be found at: Patrick Cariou v. Richard Prince, et al. (11-1197-cv). Intend to read it tonight and maybe opine here more knowledgeably as a result.

St. George said...

Art is what u can get away with. ...warhol

Joe said...

By definition, "derivative" does not mean actually using the original. By this standard, I can take a book and simply replace all of certain words with stars.

Joe said...

No, it's more like changing every 20th word to "Fuck".

Sam L. said...

Stupid, squared. Maybe cubed.

Clare King said...

I agree with Unknown above.

To me it looks like Prince destroyed Cariou's photos.

I'm an artist and my husband is a photographer. This is comes up in our art community quite frequently.

You shouldn't steal someone else's artistic expression to create your own. I know if someone did that shit to one of my husbands photos I would want it destroyed.

jr565 said...

The 2d Circuit court says the "fair use" copyright exception doesn't require that a new work of art "refer back to the original."
Richard Prince used somebody else's photographs in his collages, and the court said it's enough that a reasonable observer finds the new work "transformative."

What if you don't find the work transformative. it then violates fair use?
That's a pretty subjective standard to base law around.
And who are thse resaonble observers? How do we know they are reasonable when they say works of art are transformative or not?

jr565 said...

think of all of the stock photography that's online. Some of it is free to use, and some of it you have to pay for. As long as you are transformative in your use of said photography, why would you ever have to pay for any photography again?