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Significant Copyright Issues— Treatment of “Appropriation Art” Under United States Copyright Law

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Significant Copyright Issues— Treatment of “Appropriation Art” Under United States Copyright Law SIGNIFICANT COPYRIGHT ISSUES— TREATMENT OF “APPROPRIATION ART” UNDER UNITED STATES COPYRIGHT LAW NEW YORK STATE BAR ASSOCIATION INTERNATIONAL LAW AND PRACTICE SECTION FALL MEETING—2016 PARIS, FRANCE PROGRAM 6 L. Donald Prutzman Tannenbaum Helpern Syracuse & Hirschtritt LLP 900 Third Avenue New York, New York 10022 (212) 508-6739 2016 L. Donald Prutzman ALL RIGHTS RESERVED TREATMENT OF “APPROPRIATION ART” UNDER UNITED STATES COPYRIGHT LAW L. Donald Prutzman Tannenbaum Helpern Syracuse & Hirschtritt LLP New York, New York I. “Appropriation Art” and Copyright Law—A Clash of Artists’ Rights Appropriation art is an artistic genre in which the appropriation artist uses existing works by other artists to create new works that recontextualize the original work in some way, often to attempt to make a comment on some aspect of society. Appropriation artists consider it essential to the genre to appropriate existing work of others rather than create a new, wholly original work from scratch. The Tate Gallery has defined appropriation art as “the more or less direct taking over into a work of art of a real object or even an existing work of art.” The appropriation aspect creates significant copyright law issues because it is also part of the cannon of appropriation art that the appropriated underlying work cannot be licensed or credited. The creation of “appropriation art” implicates primarily two provisions of United States copyright law. First, § 106 of the Copyright Act gives the copyright owner the exclusive right “to prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106(2). A derivative work is defined as “a work based upon one or more preexisting works,” including “any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Thus, in almost all cases, the appropriation artwork will be a derivative work of the appropriated artwork. However, the exclusive rights of the copyright owner are not absolute. Because the purpose of copyright law is to promote and foster the progress of creative work, the exclusive rights are subject to what is known as the “fair use” privilege, where society’s interests supersede the copyright owner’s interests. Under the United States Copyright Act, the fair use privilege is codified in § 107. This section provides that: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the 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. The cases discussed below showing the evolution of the treatment of appropriation art under the copyright law in the United States all analyze and apply the four factors of the fair use privilege to determine whether the work of appropriation art in issue is an infringement or a fair use (and therefore not an infringement). As will be seen, the treatment of the copyright issues involved in appropriation art in the United States has evolved significantly over the years. Courts initially applied copyright principles relatively strictly and found that use of another’s work to create appropriation art infringed the copyright. More recently, courts have relied on the emerging concept of “transformative use” to find that appropriation art is often, but not invariably, a “fair use” of the underlying work. 2 II. The Seminal Case—Rogers v. Koons The first United States case to apply the copyright law to a work of appropriation art was Rogers v. Koons, 960 F.2d 301 (2d Cir.), cert denied, 506 U.S. 934 (1992) (attached as Exhibit A). The court there considered whether the artist’s relatively exact copy (except for adding color and a few minor embellishments) of the plaintiff’s photograph of two people with eight puppies on their laps in the form of a life size, three- dimensional sculpture infringed the copyright in the photograph. The plaintiff, photographer Art Rogers created the photograph “Puppies,” shown below” Rogers sold prints of the photograph to the human subjects, sold signed prints to collectors, and licensed the photograph to a company known as Museum Graphics for use on note cards. The highly successful appropriation artist Jeff Koons purchased a copy of 3 the notecard in a “very commercial, tourist-like card shop” and used it to create a work in what he termed his “Banality Series.” Through detailed directions he instructed a firm of Italian artisan wood carvers in the creation of a life-sized color sculptural version of the photograph, which he titled “String of Puppies, shown below: When Rogers learned of Koons’ work through a newspaper photograph of the sculpture exhibited in an art museum, he brought an action for copyright infringement. After the court of first instance found infringement on summary judgment, Koons appealed to the United States Court of Appeals for the Second Circuit (which covers the states of New York, Connecticut and Vermont). The court affirmed the lower court’s finding of infringement. The first paragraph of the court’s decision left no doubt where the court was heading. 4 The key to this copyright infringement suit, brought by a plaintiff photographer against a defendant sculptor and the gallery representing him, is defendants’ borrowing of plaintiff’s expression of a typical American scene—a smiling husband and wife holding a litter of charming puppies. The copying was so deliberate as to suggest that defendants resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist’s work would escape being sullied by an accusation of plagiarism. But the court was not about to let that happen. Koons argued (1) that the portions of the photograph copied were not sufficiently original to merit copyright protection, and (2) that even if original material was copied the copying was “fair use. The court easily refuted the lack of originality argument. “Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.” 960 F.2d at 307. The court found that “Rogers’ inventive efforts in posing the group for the photograph, taking the picture, and printing ‘Puppies’ suffices to meet the original work of art criteria.” Id. The court further found that the evidence that the sculpture was copied from the photograph was so compelling that summary judgment, rather than a trial, was an appropriate way to resolve the issue. In particular, the court noted that “this case presents the rare scenario where there is direct evidence of copying. Koons admittedly gave a copy of the photograph to the Italian artisans with the explicit instruction that the work be copied,” including specific details such as the shading, the expressions and the texture of the puppies’ fur. On the fair use issue Koons’ primary argument on the “purpose and character of the use” factor was that the sculpture was a parody or satire of society at large, if not of the photograph itself. The court acknowledged that use of a copyrighted work for a 5 parody or satire is a legitimate fair use purpose, but rejected the argument here because the photograph was not sufficiently well known to the public to be the object of a parody or satire. The court stated, “It is the rule in this Circuit that though the satire need not be only of the copied work and may, as appellants urge of “String of Puppies,” also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work.” 960 F.2d at 310. The court considered this “a necessary rule, as were it otherwise there would be no real limitation on the copier’s use of another’s copyrighted work to make a statement on some aspect of society at large.” The court further found that “The circumstances of this case indicate that Koons’ copying of the photograph “Puppies” was done in bad faith, primarily for profit-making motives,” which it held against Koons in evaluating this factor. The court next found that the “nature of the work” factor militated against fair use, “Since ‘Puppies’ is creative and imaginative and Rogers, who makes his living as a photographer, hopes to gain a financial return for his efforts with this photograph”. 960 F2d at 310. In considering the “amount and substantiality of the work used” factor, the court noted that the relevant inquiry is the amount and substantiality of the protected expression that has been used, not the factual content of the material in the copyrighted work and that the qualitative degree of the copying—i.e., whether the essence of the work, or peripheral details, have been copied. 960 F.2d at 311. Here, the court found that the copying was substantial and that the essence of the photograph had been copied.
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