Public art and fair use

A couple of week’s ago I was asked a question that set me thinking and required a bit of research.  That is hardly post-worthy, but when a case came down that addressed the same issue I had been thinking about, it suddenly seemed worth discussing.  It provides an opportunity to dissect an issue, remind ourselves of things we already know, and also explore the continuing evolution of fair use decisions from our courts.

The question involved the use, in a planned publication, of a photograph of a piece of public art.  In Durham we have several murals, painted on walls in public spaces, of Pauli Murray, one of our prominent citizens.  Rev. Murray was a civil rights activist, a women’s rights activist, and the first African-American women ordained as a priest in the U.S. Episcopal Church.  But could an author use a photograph of one of those murals in an upcoming article?

Of course, the first thing that comes to mind is that there are likely two sets of rights to be aware of here — the artist’s and the photographers.  In this case, however, the photo was take by the author of the publication that was in preparation, so the issue was focused on the scope of the artist’s rights.

Does it matter that this work of art can be seen by people walking on a public sidewalk or through a public park?  I knew, for example, that that fact did matter when the subject of the photography was a building.  In 1990 Congress added section 120 to our copyright law which permits “pictorial representations” of an “architectural work that has been constructed” as long as the building in question is “ordinarily visible from a public place.”  These pictures can be made, distributed and publicly displayed without the need to obtain permission.  But a quick look at section 120 reminded me that it is quite specific to architectural works; it does not tell us anything about the situation for a work of visual art that is painted on to the side of such a building or otherwise placed in a public spot.

Next up in my mental queue was an older case (with the great name of Letter Edged in Black Press v. Public Building Commission of Chicago) that involved the immense, untitled Picasso sculpture that is installed on the Civic Center Plaza in Chicago. But interesting as that case is, it is not applicable to the situation I was looking into.  The case was decided in 1970, so it was based on the provisions of our older, 1909 copyright law.  In the specific circumstances, a federal court held that the Picasso sculpture was in the public domain because all of the publicity around it had amounted to “publication” without copyright notice.  Under the 1909 law this put the work in the public domain.  But that is no longer the case under the newer Copyright Act, which replaced the 1909 law on January 1, 1978. So the “Chicago Picasso” case did not answer my question either.

Ultimately, the answer comes down to this — copyright is automatic when the work of art is “fixed”, including by being painted on a wall, so the artist holds a copyright in this mural.  Simply painting it in a public place does not make it public domain or give people any license to make use of it (other than by viewing it, of course).  There is no specific exception that would apply to use of a photograph of this type of art.  When we have exhausted those options — public domain, a license, or a specific exception — we are left with two more possible grounds for using a work, fair use or permission from the rights holder.

Which gets me to the recent case, which actually involved very similar circumstances — reuse of an image of an artwork painted on a publicly visible wall.  In this case, the artist was Derek Seltzer and a copy of his poster called “Scream Icon” was on a wall in Los Angeles that was part of a video used as backdrop for live concerts by the band Green Day.  In an opinion last month, which can be found here, the Ninth Circuit Court of Appeals affirmed a lower court ruling that this use of the poster was fair use.  The Ninth Circuit panel found that Green Day’s use of the image, which was in a context created by other posters and graffiti on the wall and was used to convey, the Court said, a very different (and much clearer) message than the original poster, was transformative:

[the] video backdrop using ‘Scream Icon’ conveys new information, new aesthetics, new insights and understandings that are plainly distinct from those of the original piece.

The Court went on to hold that the creative nature of the work weighed slightly against fair use, and that the use of the entire poster was neutral, since the poster could not be separated from its context on the wall.  Finally, they ruled that there was no impact on the potential market for or value of the poster caused by Green Day’s fleeting use of it in a video backdrop.  They also held that that use was only “fleetingly commercial” because the video (and the poster) was not used in any way to market Green Day’s concert tour.

It is interesting that the Ninth Circuit panel said that this was a close case (and reversed a grant of attorney’s fees to Green Day because of that).  In many ways it seems like a pretty clear case of transformative fair use, and one for which there is precedent.  In the Second Circuit a very similar case involving use of copyrighted visual material during a live performance was decided about six months ago, also in favor of transformative fair use.  The case was called SOFA Entertainment v. Dodger Productions and involved a seven second video clip from the Ed Sullivan Show shown on a screen at the end of the first act of the Broadway show Jersey Boys.  The Ninth Circuit cited  SOFA Entertainment, but seemed to feel that the case for transformative fair use regarding the poster was closer.  On the one hand, of course, the use is much more ephemeral, but perhaps the Seltzer court felt that the “biographical anchor” which the SOFA court found in the use of Ed Sullivan in a show about the Four Seasons was lacking for Green Day.  And maybe they just wanted to reverse the grant of attorney’s fees to the band, feeling that it was unfair to Mr. Seltzer.

All of this reminds us that the analysis of transformative fair use, while very useful for both creative artists and scholars, is evolving territory.  In fact, the Ninth Circuit panel noted this themselves when considering the issue of attorney’s fees, but also saw in this case a convergence between themselves and the Second Circuit on the other coast. Fair use is always extremely dependent on the specific facts and circumstances related to the particular use of particular material.  Reading these case decisions continues to give us additional data points to guide our analysis, but we never arrive at a finished picture.

So what about the photograph of that Pauli Murray mural in a scholarly article?  If we look at the fair use argument as it is developed in these cases and many others — especially the language quoted above about new meanings and new insights — the use of that photo is probably fair use.  But there was also some realpolitik in my answer to the inquiry.  The artist who painted those murals is known, still working, and easy to contact.  Scholars working on the life and impact of Pauli Murray may want to make later uses of these works dedicated to her.  So why not ask? Especially because this is a clearly non-profit, scholarly use that will, like the murals, honor the memory of a remarkable women, the artist has every reason to grant permission.  Asking permission, we know, does not prevent a later reliance on fair use, but in some cases it seems like an easy and respectful way to proceed even when fair use would likely also support the use.