A new ruling came out last week in one of the most interesting cases involving appropriation art, the ongoing dispute between photographer Patrick Cariou and appropriation artist Richard Prince. I wrote about the unfortunate decision from the district court back in 2011, and on Thursday the Second Circuit Court of Appeals reversed that decision, determined the 25 of the 30 challenged artworks were fair use, and remanded the case back to the District Court for a better decision on the remaining five.
The decision from the Appeals Court tells the story of this dispute very clearly, but just to summarize, let me remind readers that Patrick Cariou took a series of photographs of Rastafarians that were published in a book, now out-of-print, called “Yes, Rasta.” Richard Prince then made a series of appropriation art works, which included collages of the photos as well as various other alterations. The trial court in the case decided on a summary judgment motion that these art works by Prince were copyright infringement. Judge Deborah Batts, whose opinions we have had cause to regret in the past, held that a fair use defense for the appropriation art failed because the new work must “comment on, relate to the historical context of or critically refer back to the originals.” When asked what his point was in these artworks, Prince told the trial court that he did not have a point, and that was very damning in Judge Batts’ eyes; for her, his works could be transformative only insofar as they were making a comment about Cariou’s work.
In Thursday’s decision, the Appeals Court told us, and Judge Batts, that this was not the right standard for assessing transformation for the purposes of fair use.
By the way, in her original injunction, which was vacated by the Appeals Court, Judge Batts had given Cariou the right to destroy Prince’s allegedly infringing works. I wrote about this with some outrage two years ago, so it is worth noting that, to their credit, Cariou’s counsel told that Appeals Court early on that they opposed destruction of the art, even though they wanted it to be held to be infringing.
The Second Circuit begins its opinion by pointing out, in clear and forceful language, that copyright is not intended to give authors or other creators “absolute ownership” in their works, as if by natural right. Instead, the Court notes, copyright is designed to stimulate creativity and progress in arts and sciences. This is not new, but placed as it is in the opinion, it strongly reinforces the point that fair use is part of the structure of copyright, not an oddity or a mere exception for extraordinary situations. Without fair use, copyright fails in its Constitutional purpose.
As for the correct standard for deciding if a work has a transformative purpose, the Second Circuit wants a broader rule than that articulated by the trial judge. Transformation can exist even without direct comment on the original, whenever the original work is altered with “new expression, meaning, or message” (quoting the Supreme Court in the Campbell case). The new work can be transformative if it “superseded the object of the original creation” by offering “new information, new aesthetics, new insights and understandings.”
Significantly, and especially important given Prince’s refusal to assign a “point” to his work, the court wants us to look at transformation from the perspective of the viewer, not the creator:
Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so. Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may “reasonably be perceived” in order to assess their transformative nature.
For me personally this is very reassuring. One of the ways I frequently tell students, faculty and librarians to try to decide if a proposed use is tranformative is to advise them to ask themselves three questions. First, will the “quotation” of the original help me make my point? Second, will it help my reader/viewer get the point? Finally, did I use no more than necessary to make my point? These questions, by the way, are borrowed from LA attorney Dean Cheley, thanks to a panel we were both on at the 2012 ALA Annual conference. The part of the decision that reinforces these questions is the reference to what will help readers and viewers perceive the new message or new aesthetic. And while my “clients” usually do have a point to make, it is encouraging to see that fair use supports even appropriation art for its own sake.
Finally, the Second Circuit is very careful in its discussion of potential markets when assessing a transformative fair use. It is not enough, the Court says, that argue the new work could have been licensed, and thus assert that any fair use harms that hypothetical market for a license. Instead, the Court reminds us that the question is whether the alleged infringer has “usurped” a market in which the target audience and the nature of the content is the same as for the original. Where the audience for the new work is different, and there is nothing to suggest that the original rights holder would have thought to exploit that different audience or communicate the new message, aesthetic or insight to them, the entirely speculative possibility of a license will not undermine fair use.
In the end, the Appeals Court finds that 25 of the challenged art works are fair use. It remands only five of them back to the District Court for a new decision applying the correct standard. The chances are good, I would think, that this will never actually get back to the trial court, because some settlement, based on a licensing fee in regard to those five, is probably in everyone’s best interest. But regardless of what happens about those five art works, we now have a very strong decision about transformative fair use for appropriation art out of the Second Circuit. Although not all fair uses, as we know, have to be transformative, this kind of decision helps lend support to many of the most creative forms that teaching and learning take on our campuses.