The question of what does or does not constitute “fair use” is probably one of the grayest areas of copyright law. But it is an area of heightened interest to those artists who practice what has come to be known as “appropriation art,” that is, art – mainly visual art – that incorporates and utilizes found images and photographs, which are often themselves the subject of copyright. Practitioners of “appropriation art” include sculptor Jeff Koons, graphic artist Barbara Kruger, and, of course, pop artist Andy Warhol. The grand daddy of them all was Marcel Duchamp, who, in the period following World War I, pioneered the concept of “readymades” or “found art.” Koons, Kruger and Warhol all found themselves on the wrong end of copyright infringement lawsuits for their use of other artists’ copyrighted images in their art work. And if Leonardo Da Vinci had been born a few hundred years later, maybe Duchamp too would have found himself having to defend appropriating Da Vinci’s most famous work – the Mona Lisa – by drawing a mustache and a vulgarity on it, and calling it his own.
When bumping up against the strictures of the Copyright Act, appropriation artists turn to the doctrine of “fair use” as a defense, sometimes successfully, (see Blanch v. Koons 467 F.3d 249 (2d. Cir. 2006)), and other times not (see Rogers v. Koons 960 F.2d 301 (2d. Cir. 1992)). The defense itself is codified in the Copyright Act at Section 107, which sets forth four factors that courts should consider in determining if something is a “fair use” of a copyrighted work, and therefore not subject to an infringement claim: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the use; and (4) the effect on the potential market for the copyrighted work. Although the court’s inquiry is not required to be limited to these four factors, as a practical matter most fair use cases are analyzed within this structure.
In recent years the first statutory factor – the “purpose and character of the use” – has taken on increasing importance, and the inquiry on that topic has been described by the Supreme Court as
whether the new work 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[,]. . . in other words, whether and to what extent the new work is transformative. . .
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Indeed, this so-called “transformative use” analysis often eclipses the other stated factors, so that if a use is found to be “transformative,” it is almost always found to be fair use.
But the transformative use analysis is, by its very nature, subjective and amorphous, often leading courts – despite Justice Holmes’ famous warning over a century ago regarding jurists being ill-suited to be art critics – to nonetheless attempt their own version of art analysis to assess the “character, meaning, expression and message” of the challenged works. The results of these analyses, because they are subjective, generally fail to give clear guidance on where the lines between infringement and fair use should be drawn for works that are not then before the court. Accordingly, the art world was awaiting with great anticipation the Second Circuit’s ruling in Cariou v. Prince, in the hope that the decision would offer practical guidance and an objective roadmap for artists to navigate their way to the fair use safe harbor – particularly in the context of appropriation art.
In that case, photographer Patrick Cariou sued artist Richard Prince – along with Prince’s dealer and gallery – for using without permission a number of photographs Cariou had taken of Rastafarians in Jamaica, and published in a book entitled Yes, Rasta. The book had enjoyed limited commercial success, and except for a few sales to friends and acquaintances, Cariou had not sold or licensed the photographs contained in Yes Rasta.
Prince is a very successful artist, represented by a powerhouse New York dealer and gallery. His work is in the permanent collections of several museums, is routinely purchased by celebrities and collectors, and often fetches into the seven-figures for a single canvas. Prince used a number of images from Yes Rasta – which he enlarged, cut up, and painted over – in the creation of thirty works of art comprising a series called Canal Zone. Prince’s dealer exhibited the Canal Zone series at his gallery, and sold eight of the works for a total of over $10 million.
Upon learning of Prince’s exhibition, Cariou sued for copyright infringement for the unauthorized use of his photographs. He won on summary judgment at the district court level, and obtained a permanent injunction compelling Prince to turn over all of the unsold Canal Zone works for sale, disposal or destruction. In its ruling, the United States District Court for the Southern District of New York held that Prince’s works did not qualify as a “fair use” because, among other things, they were not transformative in that they did not “comment on” Cariou’s photographs or the subjects of the photographs, and Prince himself did not articulate any transformative intent in connection with the use of the images.
Prince appealed, and the Second Circuit reversed, rejecting the District Court’s requirement of either “commentary” or transformative “intent,” and focused instead on how the works could reasonably be perceived:
What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so. Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may “reasonably be perceived” in order to assess their transformative nature.
It was indeed beneficial for the Court to clarify that commentary on the original work was not a necessary component of transformative use, and that an artist was not required to articulate a transformative intent for one to be found. However, in turning to how Prince’s artworks may be perceived by the reasonable observer, the Court plunged feet-first in to art criticism and commentary:
Here, our observation of Prince’s artworks themselves convinces us of the transformative nature of all but five. . . These twenty-five of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.
The Court found these twenty-five works to be transformative as a matter of law, and subject to the protection of the fair use doctrine. With respect to the remaining five, however, the Court stated that “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 cannot say with certainty at this point whether those artworks present a ‘new expression, meaning or message.’” Accordingly, they were sent back to the District Court for a determination as to their fair use status.
Unfortunately, the Second Circuit – while pointing out critical differences between the five works remaining at issue and the underlying photographs which they utilized – did not provide any further guidance on how the District Court – or perhaps even a jury – should assess those differences. Indeed, it could readily be said (and has been said by a number of commentators) that these remaining five works are every bit as “transformative” as the twenty-five protected works, particularly when you look at the critical aspects of context and purpose, and not just at visual changes.
So while Cariou v. Prince can rightly be considered a victory for appropriation art to some extent, what it is not is a victory for clarity, guidance and certainty in the very murky area of fair use and “transformativeness.”
 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).