Appropriation and Transformative Use: Judges as Art Critics

Over the past twenty years, increasing numbers of artists directly incorporate into their work, in a nearly cut and paste fashion, an image created by another artist.  There is even a term for them – “Appropriation Artists.”  When they are sued or threatened, which is often, “Fair Use” is the most frequently cited defense to a claim of infringement.

Section 107 of the Copyright statutes contain 4 factors to analyze in determining whether one piece of art infringes on the copyright of the author of a second piece.  That section, with important terms highlighted, reads as follows:

§ 107. Limitations on exclusive rights: Fair use

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.

Two of the most famous, or infamous, appropriation artists are Richard Prince and Jeff Koons.  Both have been sued for infringement numerous times.  Koons has lost cases, such as when he instructed artisans creating a piece of sculpture, on several occasions, to make the sculpture “exactly” like a photograph created by Art Rogers of a husband and wife holding eight German Shepherd puppies.  Rogers v. Koons 960 F.2d 301 (2d Cir. 1992).  The Federal Court of Appeals for the Second Circuit, which sits in New York City and hears cases from New York, Vermont and Connecticut, applied section 107 and the factors above in a straightforward manner.

Appropriation artists have succeeded more frequently in posing this defense over time, as they have become adept at including the factors cited by courts as supporting “transformation” in their statements describing the reasons why they used or had to use the original art in their work.  See for example the different outcomes in Rogers v. Koons,960 F.2d 301 (2d Cir. 1992) in which Jeff Koons lost an infringement case, and Blanch v. Koons, 467 F.3d 244, 247 (2d Cir. 2006), in which Mr. Koons spelled out in an affidavit the need to copy the extracted portion of Andrea Blanch’s photograph, and prevailed.

In 2013, the Court of Appeals for the Second Circuit issued a decision which, depending on your point of view, either went off the rails and added a new over-riding criteria of “transformation,” not found in the fair use provision of the copyright statute, for deciding whether appropriating another artist’s copyrighted material is infringement, or issued a decision which was the culmination of a line of cases which explicitly or implicitly considered the degree to which an allegedly infringing work “transformed” the prior work.  In Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), this Court of Appeals overturned the District Court’s judgment that Prince had infringed the copyright of Patrick Cariou by copying Cariou’s photographs or portions of photographs exactly but adding extraneous items, mutilating the prints, and combining Cariou’s photos with other Cariou photos, as well as with copies of other photographs.

The Court of Appeals found at pages 710-711 that Prince “transformed” what he copied from 25 of Cariou’s photographs, but not have transformed them sufficiently in five photographs, sending the case back to the District Court only on five photographs.  The Court’s reasoning, heavily criticized by a dissenting judge, reads as follows (emphasis and highlighting added).

 Prince used key portions of certain of Cariou’s photographs. In doing that, however, we determine that in twenty-five of his artworks, Prince transformed those photographs into something new and different and, as a result, this factor weighs heavily in Prince’s favor.

As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their *711 transformative nature as a matter of law. 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 can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.” Campbell, 510 U.S. at 579, 114 S.Ct. 1164.

Certainly, there are key differences in those artworks compared to the photographs they incorporate. Graduation, for instance, is tinted blue, and the jungle background is in softer focus than in Cariou’s original. Lozenges painted over the subject’s eyes and mouth—an alteration that appears frequently throughout the Canal Zone artworks—make the subject appear anonymous, rather than as the strong individual who appears in the original. Along with the enlarged hands and electric guitar that Prince pasted onto his canvas, those alterations create the impression that the subject is not quite human. Cariou’s photograph, on the other hand, presents a human being in his natural habitat, looking intently ahead. Where the photograph presents someone comfortably at home in nature, Graduation combines divergent elements to create a sense of discomfort. However, we cannot say for sure whether Graduation constitutes fair use or whether Prince has transformed Cariou’s work enough to render it transformative.

Judge Wallace, the senior judge on the court, dissented.  Stating what is obvious to everyone not on the Second Circuit Court of Appeals, he wrote at 713-14 as follows:

Indeed, while I admit freely that I am not an art critic or expert, I fail to see how the majority in its appellate role can “confidently” draw a distinction between the twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination. This, mind you, is done on a summary judgment review with no understanding of what additional evidence may be presented on remand. I also fail to see a principled reason for remanding to the district court only the five works the majority identifies as close calls, although I agree that they must be sent back to the trial court. If the district *714 court is in the best position to determine fair use as to some paintings, why is the same not true as to all paintings? Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case. Cf. Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 582, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (“ ‘[I]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits’ ”), quoting f7Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 47 L.Ed. 460 (1903). It would be extremely uncomfortable for me to do so in my appellate capacity, let alone my limited art experience.

The  Cariou v. Prince decision has been criticized and praised by artists, with rather muted criticism from other courts.  In law journals and other learned publications, opinion differs widely concerning the validity of the court’s reasoning and the effect of the Cariou decision.  Whatever your point of view, the decision opens the door both to more appropriation in the United States, and to judges sitting as art critics and art historians.  Cariou ultimately settled with Prince, for an undisclosed amount of money.   

By contrast, a January 2015 ruling by a court in Antwerp held that Belgian artist Luc Tuymans’ painting of a sweating politician is a copyright infringement of a photo taken by a news photographer.  If Mr. Tuymans reproduces or exhibits the work — a portrait of the Belgian politician Jean-Marie Dedecker — he faces fines of up to 500,000 euros (about $580,000) in Antwerp.  The 2011 portrait, titled “A Belgian Politician,” is reported as being typical of Mr. Tuymans’s style.   He has long culled images from television, film and old postcards to create new works with his characteristic sketchy brushstrokes. He used similar techniques to make a scowling portrait of the former Secretary of State Condoleezza Rice.  See NY Times “Arts Beat” for January 21, 2015, article by Doreen Carvajal, and, “Luc Tuymans Case Illustrates the Failure of Europe’s Copyright Laws” by Lewis Bush on January 23, 2015, at Hyperallegic blog (available here).  The photo-painting comparison below is from the Bush article.

The Tuymans case demonstrates a decidedly different approach from the U.S. courts, evidence that European courts are much more willing to find infringement.  Also recently filed are two new cases against Jeff Koons.  See the article and photo below of a sculpture derived from a fashion photograph by Franck Davidovici, involving a clothed reclining woman and a pig wearing a small cask, like a St. Bernard in the Alps.

Thus, artists should be aware of the source of material they may be accused of appropriating, and take warning when the source artist may have the right to bring an infringement action in a European court.

All images presented below are the copyrighted works of the indicated artist or author.  They are taken from public records.

*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.

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