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Transformative Use and Comment on the Original: Threats to Appropriation in Contemporary Visual Art Caroline L

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Transformative Use and Comment on the Original: Threats to Appropriation in Contemporary Visual Art Caroline L Brooklyn Law Review Volume 78 | Issue 4 Article 8 2013 Transformative Use and Comment on the Original: Threats to Appropriation in Contemporary Visual Art Caroline L. McEneaney Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Caroline L. McEneaney, Transformative Use and Comment on the Original: Threats to Appropriation in Contemporary Visual Art, 78 Brook. L. Rev. (2013). Available at: https://brooklynworks.brooklaw.edu/blr/vol78/iss4/8 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. Transformative Use and Comment on the Original THREATS TO APPROPRIATION IN CONTEMPORARY VISUAL ART INTRODUCTION Art and rules do not often go well together. To imagine an artist pondering the Copyright Act and conforming to case law as part of the creative process is bizarre if not laughable. Some United States courts, however, seem to disagree. In March of 2011, a district court in the Southern District of New York held that appropriation artist Richard Prince had unlawfully infringed photographer Patrick Cariou’s copyrighted works when he tore pages from Cariou’s photography book Yes, Rasta and used them in collages for his own collection entitled Canal Zone.1 Prince unsuccessfully argued that his work constituted fair use—a defense to copyright infringement that deems an otherwise infringing use to be lawful for policy reasons.2 The Cariou v. Prince decision is a high profile, yet not unprecedented,3 reaction to visual art that comments on prior works through appropriation. The contemporary concept of appropriation in the visual arts originated about a century ago with the advent of artists such as Pablo Picasso and Georges Braque and their use of 1 Cariou v. Prince, 784 F. Supp. 2d 337, 342-43 (S.D.N.Y. 2011). This past April, the Second Circuit Court of Appeals issued an opinion reversing in part the District Court’s decision. Finding that the lower court incorrectly required that the new work comment on the original, the Court of Appeals determined that twenty-five of the thirty paintings in the Canal Zone series constitute fair use. While this decision substantially thaws Judge Batts’ initial ruling, together, the three Cariou opinions, one from the district court and the two from the Second Circuit, only underscore the need for a clearer fair use standard. Cariou v. Prince Cariou (II), 714 F.3d 694 (2d Cir. 2013). 2 See generally Cariou, 784 F. Supp. 2d at 346-47. 3 See Rogers v. Koons, 950 F.2d 301, 309-10 (2d Cir. 1992) (rejecting pop artist’s fair use defense despite the use of different medium and evidence of social commentary in work); Morris v. Guetta, No. LA CV12-00684, 2013 WL 440127, at *13 (C.D. Cal. Feb. 4, 2013) (rejecting street artist’s fair use defense); Friedman v. Guetta, No. Civ. 10-00014, 2011 WL 3510890, at *7 (C.D. Cal. May 27, 2011) (same). 1521 1522 BROOKLYN LAW REVIEW [Vol. 78:4 collage.4 While occasionally throughout the twentieth century artists have faced copyright claims, these cases have settled for the most part, with few lasting long enough to set any legitimate precedent.5 But recently, artists have become increasingly litigious.6 And many of these modern cases involve major art world players, such as Shepard Fairey, Ryan McGinley, and, of course, Richard Prince.7 These wealthy and successful artists might not face crippling financial consequences by defending or settling these lawsuits, and they are often unsympathetic defendants, but the effect of a decision against one of them could have vast consequences. The goal of copyright law, under the U.S. Constitution, is “[t]o promote the Progress of Science and useful Arts.”8 Too often, however, in an effort to zealously protect the rights of authors, courts and litigants lose sight of this end. More importantly, overprotection of copyright can actually hinder 4 Picasso and Braque are typically associated with the beginnings of appropriation art for their use of collage in works of art. Clement Greenberg, Collage, in ART AND CULTURE: CRITICAL ESSAYS 70-71 (1961); see also Timothy Anglin Burgard, Picasso and Appropriation, 73 ART BULL. 479, 479 (1991) (“[Picasso] perceived appropriation as a magical transference of power that could be applied to both historical and contemporary art and to objects and people.”). 5 Cat Weaver, Law vs. Art Criticism: Judging Appropriation Art, HYPERALLERGIC (May 5, 2011), http://hyperallergic.com/23589/judging-appropriation- art/ (“[M]ost copyright infringement cases defer to a ‘tradition of settling’.”). Renowned pop-artist Andy Warhol faced infringement claims for using another artist’s image of flowers and for his use of the Campbell’s soup can images, but he wound up settling both claims out of court. See William M. Landes, Copyright, Borrowed Images, and Appropriation Art: An Economic Approach, 9 GEO. MASON L. REV. 1, 4 n.10, 18 (2000); E. Kenly Ames, Note, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation, 93 COLUM. L. REV. 1473, 1475 n.12, 1484 (1993). The transformative use standard is derived from Campbell v. Acuff-Rose, a case dealing with music sampling. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569 (1994). 6 Sergio Muñoz Sarmiento, Why Is Copyright (Suddenly) a Hot Topic for Artists?, CLANCCO, (Feb. 19, 2010), http://clancco.com/wp/2010/02/hot-topics-copyright- art/. Mr. Sarmiento argues that the current economic recession, the increased awareness of the value of visual art, and education about legal rights are all factors that have contributed to the rise in copyright litigation in recent years. Id.; see also Randy Kennedy, Apropos Appropriation, N.Y. TIMES, Dec. 28, 2011, at AR1, available at http://nytimes.com/2012102/01/arts/design/richard-prince-lawsuit-focuses-on-limits- of-appropriation.html (“[A]rt lawyers say that legal challenges are now coming at a faster pace . because the art market has become a much bigger business and because of the extent of the borrowing ethos.”). 7 Randy Kennedy, Artist Sues the A.P. Over Obama Image, N.Y. TIMES, Feb. 9, 2009, at C1; Walter Robinson, Cariou v. Prince: More on Artists’ Copyright Claims, ARTNET (Dec. 16, 2011), http://www.artnet.com/magazineus/news/robinson/artists- copyright-claims-12-16-11.asp. Not to be forgotten, superstar artist Jeff Koons has singlehandedly contributed to much of the American case law concerning fair use and appropriation art. See generally Rogers, 950 F.2d 301, Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), and Cariou v. Prince, 784 F. Supp. 2d 337 (S.D. N.Y. 2011). 8 U.S. CONST. art. I, § 8, cl. 8. 2013] TRANSFORMATIVE USE & THREATS TO APPROPRIATION 1523 progress when too much material is off limits. The fair use exception is designed to redirect copyright toward its goal by allowing uses that are desirable. In other words, fair use applies when the law would otherwise deem a work infringing that, for policy reasons, should be permitted.9 Determining whether a specific act of copying falls under fair use involves a four-factor analysis.10 Although courts examine all four factors,11 the first factor—which considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”12—is often central to the analysis. In Campbell v. Acuff-Rose Music, Inc.,13 the Supreme Court relied on a Harvard Law Review article written by Judge Pierre N. Leval to introduce the “transformative” nature of the work as a prong of the first fair use factor.14 According to Judge Leval, a transformative work “must be productive and must employ the quoted matter in a different manner or for a different purpose than the original.”15 The transformative use question is now “at the heart of . fair use” claims, particularly those that deal with appropriation art.16 Moreover, the Supreme Court has 9 See Campbell, 510 U.S. at 575. 10 Under § 107, the fair use analysis examines: (1) the purpose and character of the [allegedly infringing] use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107 (2006). These four factors provide a guideline for courts to analyze fair use. However, they are not exclusive or determinative—a point that the Second Circuit recently made plain in its Cariou decision reversing in part the district court’s finding that none of Prince’s works constituted fair use. Cariou (II). 11 See, e.g., Campbell, 510 U.S. at 577 (“All [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.”) In some areas, however, doctrine has evolved that favors certain factors over others. One example of this is the doctrine of transformative use—the central topic of this note. Another is the emphasis on the second factor in cases where the underlying work is unpublished. See, e.g., Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 557 (1985); New Era Publ’ns Int’l v. Henry Holt & Co., Inc., 873 F.2d 576, 583-84 (2d Cir. 1989). 12 17 U.S.C. § 107. 13 510 U.S. at 578. 14 See id. at 578-92.
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