(Mis)appropriation Art: Transformation and Attribution in the Fair Use Doctrine 15 CHI.-KENT J. INTELL. PROP. (forthcoming 2015) John Carl Zwisler∗ Abstract Since the adoption of transformation by the Supreme Court, the fair use doctrine has continued to judicially expand. The reliance on transformation has led judges to subjectively critique and analyze artworks in order to make a legal decision. While the transformation precedent is dominant among the circuits, it is not followed by all and gives an advantage to an appropriation artist claiming fair use of another’s copyrighted work. Transformation should no longer be a requirement in a fair use analysis concerning appropriation art, as it requires subjective interpretation of an artist’s work. Instead, the emphasis should be on the overall market effect the secondary use had on the market for the original with consideration given to how attribution to the original author aids in the fair use test. ∗ B.M., 2010 Berklee College of Music; J.D. candidate, 2016, Northeastern University School of Law. I would like to thank Professor Kara Swanson for her support and comments on early versions of this article as well as Nathanael Karl Harrison for our many discussions on the subject. I would also like to thank my parents, Yashira Agosto, and Nicholas Fede for their comments and support during the writing of this article. WORKING DRAFT—DO NOT CITE TO THIS ARTICLE 1 Table of Contents Part I Introduction ....................................................................................................................................... 3 Part II A History of Fair Use ...................................................................................................................... 8 A. Supplanting the Market of the Original Work ..................................................................................... 8 B. Four Factors Codified .......................................................................................................................... 9 C. Toward a Fair Use Standard .............................................................................................................. 10 D. The Supreme Court Errs in Expanding Fair Use ............................................................................... 10 Part III Appropriation Art and Case Law History ................................................................................ 11 A. Appropriation Art Primer .................................................................................................................. 11 B. Pre-Campbell: Parody Versus Satire ................................................................................................. 12 C. Post-Campbell: Adopting Transformation ........................................................................................ 14 D. Transformation Usurps the Four Statutory Factors ........................................................................... 17 Part IV The Fair Use Problem Across the Circuits ................................................................................ 20 A. Introduction ....................................................................................................................................... 20 B. The Transformative Test ................................................................................................................... 20 C. The Statutory List Test ...................................................................................................................... 26 Part V A New Fair Use Approach ........................................................................................................... 29 A. No More Transformation ................................................................................................................... 29 B. Putting the Emphasis on the Fourth Factor ....................................................................................... 30 C. Market Harm Balanced Against Market Help ................................................................................... 32 D. Encouraging Appropriation Artists to Attribute Original Authors ................................................... 33 Part VI Conclusion .................................................................................................................................... 36 Appendix .................................................................................................................................................... 38 WORKING DRAFT—DO NOT CITE TO THIS ARTICLE 2 Part I Introduction You are invited to attend the new exhibit of a well-known artist at one of the most famous galleries in New York City. Weaving your way through celebrities and critics, you notice a piece that looks very familiar. Upon closer inspection, you realize the artist has based the work on a photograph you took several years ago, but it has been slightly manipulated. Your name is not mentioned anywhere and you know you never gave the artist permission to use your work. Frustrated with what you consider an objectionable use, you want to prevent the artist from further exploiting your creative work.1 However, after consulting with copyright counsel, you learn that whether you can vindicate your rights under federal copyright law depends on where you bring a lawsuit. By relying on the fair use doctrine, as it is interpreted in the Second and Ninth Circuits, the artist may handily convince a judge that the copying was necessary for his or her own creative vision and you will be left without a remedy. Fair use is an affirmative defense that the use of a copyrighted work does not constitute infringement.2 When analyzing a fair use defense, a court must look at four statutory factors to determine if the defendant’s taking qualifies as a fair use; the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the market for or value of the copyrighted work.3 1 While the aforementioned is meant to be a hypothetical example, it is comparable to the events surrounding Richard Prince’s New Portraits exhibit. Prince commented on others’ Instagram pictures, took screenshots of them, and placed them on canvas. New Portraits was featured at the Gagosian Gallery in New York City in September and October of 2014. Since then, the works have sold upwards of $90,000 a piece. While Prince has yet to face copyright action claimed against him, a photographer has sent Prince and the Gagosian cease and desist letters. Donald Graham’s Rastafarian Smoking a Joint, Jamaica was uploaded to Instagram by a third party and Prince used the photo as the basis of one of his New Portraits without permission or attributing Graham. While no further legal action is underway, Prince could potentially face several actions for the use of copyrighted images in New Portraits. Hrag Vartanian, Photographer Sends Cease and Desist Letters to Richard Prince and Gagosian, February 15, 2015. Available at http://hyperallergic.com/183036/photographer-sends-cease-and-desist-letters-to-richard-prince-and- gagosian/ (last visited June 6, 2015); http://www.gagosian.com/exhibitions/richard-prince--september-19-2014 (last visited June 6, 2015); Jessica Contrera, A reminder that your Instagram photos aren’t really yours: Someone else can sell them for $90,000, May 25, 2105. Available at http://www.washingtonpost.com/blogs/style- blog/wp/2015/05/25/a-reminder-that-your-instagram-photos-arent-really-yours-someone-else-can-sell-them-for- 90000/. (last visited June 6, 2015). 2 17 U.S.C § 107 (2012). 3 Id. WORKING DRAFT—DO NOT CITE TO THIS ARTICLE 3 Twenty years ago, in Campbell v. Acuff-Rose Music, the Supreme Court added to the first factor, courts should determine if the secondary work is a “transformation”.4 The high court stated that judges should look to whether the new work adds something to the first work or alters it with a new meaning or message5; a task that requires judges to subjectively interpret what the works at issue mean. If a court were to determine the new work is a transformation, the re-use would be allowed as fair use. This precedent has been interpreted differently among the federal circuits and has led to much confusion. Specifically in the world of appropriation art, the focus on transformation requires judges to rely on their personal views on art to determine if and how a work has been sufficiently transformed into a new one. This is a dangerous test as the fates of many plaintiffs lie in the hands of judges who likely do not have substantial training in the fine arts. Additionally, it is counter to the words penned by Justice Holmes over a century ago, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”6 As a result of the transformative test, judges are forced to ignore this warning when deciding appropriation art cases. Appropriation artists use others’ work to create their own. The prior works can be in the public domain or protected under copyright law. Appropriation artists may take another’s material and manipulate it by changing color, size, and orientation7 or may simply enlarge the size of an existing photograph.8 Early appropriation artists challenged what constituted art and some were consciously aware of the legal