As seen in parts 1 and part 2 of our blog series, where there is art, there are artists who love to push boundaries, particularly in copyright law. This is very much the case where artists create works based on or appropriated from works created by other artists. It goes to the call of the question – does this constitute copyright infringement or is it fair use? This blog is the final part, the third installment, in our series which discusses fair use cases visual artists should know about.
Works of Visual Art Have Sketched the Contours of the Fair Use Doctrine
Fair use is a defense to copyright infringement, that permits the unauthorized use of copyright-protected works in some circumstances. Courts analyze fair use on a case-by-case basis, given each matter is very fact-intensive, but conduct a balancing test of the statutory factors. These four factors are:
- The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
- 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 potential market for or value of the copyrighted work.
In the past, fair use arguments in the visual art context were often decided on whether a use is transformative enough under the first fair use factor. The “transformative use” doctrine is a copyright law concept developed by courts that is considered under the first fair use factor. Applying this doctrine, courts examine whether the allegedly infringing use adds something new, with a further purpose or different character, in a way which does not substitute for the original use of the work.
The Supreme Court in Campbell v. Acuff-Rose Music, Inc. first outlined this principle, stating that the transformative use test focuses on “whether the new work merely ‘supersede[s] the objects’ of the original creation, or instead adds something new, with a further purpose or different character . . .” This subfactor of the fair use analysis came to dominate many infringement cases, including many visual art work cases, eventually leading to it overwhelm the fair use analysis and render the other fair use factors almost meaningless.
However, the Supreme Court recently brought some balance back to the fair use test in the Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith case. Below are a few fair use cases that visual artists should know, which provide a snapshot of what courts have looked at, and how fair use analysis has evolved across several high-profile visual arts cases.
Visual artist Jeff Koons made a collage using various photographs including a copyright-protected photograph taken by fashion photographer, Andrea Blanch, which depicted a woman’s legs reclining on a man’s lap. Koons cropped and re-oriented this photograph prior to placing in the collage amongst other pictures of pairs of women’s legs.
In determining that Koons’ use qualified as fair use, the Second Circuit Court of Appeals placed significant emphasis on the first factor, transformative use test. The court found that Koons used Blanch’s image as fodder for his social commentary in a way where he did not merely reproduce the image, but rather used it as “raw material” to fuel his own objective of providing “commentary on the social and aesthetic consequences of mass media.”
The court was further convinced that Koons’ use was transformative based on his testimony that he used Blanch’s photograph precisely for its mass media appeal to make his social commentary. The court thus weighed the first fair use factor in favor of a fair use finding, giving heavy weight to Koons’ “substantially transformative” use, and thus, did not significantly weigh the commercial nature of Koons’ use. Because the court found Koons’ use very transformative, this bled into the court’s decision that the other factors either weighed in Koons’ favor or had limited weight, ultimately leading the court to hold that his fair use defense was valid.
Photographer Patrick Cariou published a book of portraits and landscape photographs that he took in Jamaica. Defendant, known appropriation artist Richard Prince altered and incorporated several of Cariou’s photographs into a series of paintings and collages called Canal Zone that he exhibited at a gallery and in the gallery’s catalog.
In finding that most of the uses of the photographs in Canal Zone qualified for the fair use exception, the Second Circuit Court of Appeals determined that Prince’s uses were transformative because his works manifested an “entirely different aesthetic from Cariou’s photographs,” particularly that Prince’s “composition, presentation, scale, color palette, and media [were] fundamentally different and new compared to the photographs . . .” to the point where Cariou’s photographs were “unrecognizable.”
Even though Prince himself admitted to not having a particular message in his appropriation and use of Cariou’s works, the court found that Prince’s work could be transformative without having to comment on the originals because the use was so “transformative” and extended far beyond mere “cosmetic” or “minimal alterations. This case further highlighted the continual trend for the transformative use subfactor of the first factor to completely swallow-up the entire fair use analysis, leading courts to quickly brush past, or be dismissive of the other fair use factors. However, the appropriate balancing act was restored in a later visual arts case, determined by the Supreme Court.
This visual arts case centered around the appropriation of a photograph by pop artist, Andy Warhol in developing his famous silkscreen paintings of the musician, Prince. Photographer Lynn Goldsmith had licensed her photograph of Prince to Vanity Fair for an artist reference, but without her knowledge and authorization, the image was utilized and appropriated by Warhol to create the series of silkscreen prints of the musician. Vanity Fair paid AWF a fee of $10,000 for the use of one of these silkscreen prints, Orange Prince, on the cover of its magazine commemorating the late musician, but nothing was given to Goldsmith.
Here, the Supreme Court finally clarified and narrowed the “transformative use” doctrine, placing it back in its proper place as one subfactor of the first fair use factor. The Court held that AWF’s licensing of the Orange Prince for the magazine cover served essentially the same commercial purpose as Goldsmith’s original work, namely, that both Goldsmith’s photograph and Orange Prince were images licensed to magazines for stories depicting Prince. Because AWF’s use of Goldsmith’s photograph to illustrate a story about Prince was so similar to the photograph’s typical use, the Court noted that AWF needed a “particularly compelling justification.”
However, the Court stated that because AWF offered no justification at all, other than that the photograph was needed to supposedly convey a new meaning or message, this was “not enough for the first factor to favor fair use.” The Court’s decision breathed life once more into the other fair use considerations in the first factor (and the other three factors) and rebalanced a fair use doctrine that had run amok with the dominance of the transformative use subfactor.
For more discussion on the implications of the AWF v. Goldsmith case, read our case page on the lawsuit.
Visual art works have been instrumental in shaping copyright law, particularly when it comes to shaping of the fair use analysis, including the transformative use test. Such fair use cases that visual artists should know of illustrate that merely claiming different messages or meanings alone will no longer weigh the first fair use factor in favor of a fair use finding (or for that matter, the entire fair use analysis) and that it is just one of many factors to be balanced, and should be weighed against other factors.
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