Reading William Patry’s new book How To Fix Copyright and appreciate his quote from Justice Holmes in Bleistein v. Donaldson Lithographing Co., 188 US 239 (1903):

It 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.  At the one extreme, some works of genius would be sure to miss appreciation.  Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.  It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time.  At the other end, copyright would be denied to pictures that appealed to the public less educated than the judge.

The Prince decision is a good Fair Use case to deconstruct because it posits Fair Use into a contextual analysis which applies equally to digital uses of works.  The Google Amicus Brief in Prince expands the conversation by pointing out that even large-scale copying of works when used to achieve a socially useful goal can qualify as a transformative use.  And as Google points out, observers must realize that the issue in Prince, whether his work transforms Carious’ photographs and therefore passes the first prong under a Fair Use analysis, is not an issue that must be met in every case where Fair Use is in issue.  One’s use of another’s content does not need to be transformative by transforming the original expression in the original work in order to be fair.  As Sony Corp. v. Universal City Studios, 464 U.S. 417, 448-50 (1984) made clear, a different use or purpose can be a fair use even without a transformation of the aesthetic expression.  Looking at the first factor in Section 107 of the US Copyright Act and on the Columbia University Copyright Advisory Checklist, the purpose of the use, the focus in a digital context may arise by seeing how the digital context transforms the original work so that its purpose changes –for example, a work is no longer a piece of fine art displayed on a static wall but rather as it is scanned and digitized, its very nature is changed so that it can be employed, engaged, and used for a purpose other than aesthetic enjoyment or entertainment.  And while the context of the Prince factual circumstances is not about a digital format of the work, it is about using another’s content as “raw material,” as a means to expression of “new information, new aesthetics, new insights and understandings.”  In this way, Prince and Google are aligned, as demonstrated in the Google Brief, which argues that “productive recontextualization” (with or without commentary on the existing works) is one type of transformative use – the placement of images into a new context which gives them new meaning and a new purpose, which is true even if there is an overlap with the original purpose of the existing content.

The 9^th Circuit’s holding in Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146 (9^th Cir.2007) used the term “pointer” to describe how Google, as a search engine which copies content as small thumbnail images stored on Google’s servers, transforms the images “into a pointer directing a user to a source of information.”  “In other words, a search engine puts images in a different context so that they are transformed into a new creation.” Id. at 1165.  Indeed, this is what the contextual approach to finding Fair Use is all about.  If  case law supports the rule that nonexpressive uses of expressive works adds to the body of Fair Use as transformative in the function or purpose even when the altering or adding to the original work does not occur, then clearly recontextualizing an expressive work by using such work as raw material does the same.  Google seems to think so and its Amicus Brief is thoughtful support for a finding that Prince’s use of Carious’ photos as raw material which catapults the Rasta images into a different context is indeed a Fair Use.

I think we can also learn something about Fair Use by visiting the Annenberg  Space for Photography current exhibit Digital Darkroom (through May 28) and its featured video which provides an interesting look at digital photography ala Photoshop, and how artists who engage in digital photo manipulation are artists using their rich and creative imaginations to both create raw material as composition, and then using that composition to create expression in digital images.  Selection and collage is a big piece of their craft – but their ultimate art expands initially and originally in their imagination.  This type of digital creativity is a new addition to the copyrightability of photographs and in some new ways challenges copyright law as related to photographs, a topic I am pondering a lot these days as I also ponder the use of AutoCAD to articulate 3D sculptures and copyrighted works.  So while few of the artists in the Digital Darkroom exhibit use imagery for which the raw material is not entirely one’s own raw material, in all cases the creative talent and artistry is that of the featured artist.  So it is easy to see that Richard Prince’s transformation of the Rasta images may be the natural flow of his imagination turning existing raw data into new expression, for a new purpose.  Even so, this satisfies only the first prong of the Fair Use test – so that the Court may still find the use unfair on balance – if it infringes the existing work without any social benefit and with countervailing detrimental costs to Carious’ limited statutory monopoly.  This should be the overarching test for Fair Use in an evolving world where raw content gets recycled, and its many uses are limited only by one’s imagination.  Because there are three additional factors which must be looked at and balanced in the Fair Use alchemy, as a matter of copyright and social policy, copying of works as raw material into a new context when used to achieve a socially useful purpose (like furthering the progress of the arts) may be a goal we wish to support – particularly when looking at the first prong of Fair Use.

Richard Prince, Untitled, 2011 ©Richard Prince. Photo: Robert Mc Keever.

Often during converstaions with clients I stop myself in mid-sentence when I realize that soliloquies I refer to as“geek-talk,” in which I wax on about free speech and democracy as the true underpinnings of copyright, do not address the question asked   – like  “can I post on Pinterest and will I be subject to an infringement claim similar to those folks who downloaded from Napster….”
On the other extreme,  glib explanations are no more helpful than geek-talk.  The truth is there is no simple answer to what constitutes Fair Use.  One can begin by reviewing the Fair Use Check List available at the Copyright Advisory Office website for Columbia University Libraries, prepared under Kenneth D. Crews, Director.  As he describes, the law provides for a balancing of 4 factors, as set forth in Section 107 of the Act, and as interpreted by case law, helpful summaries of which can also be found on his site. Unfortunately, media talk on hot issues like Pinterest continues public confusion rather than presenting the type of balanced analysis described in the Checklist.  A recent media example, this one from the BusinessInsider.com, describing a young lawyer’s foray into Pinterest’s copyright law implications, hit home since my own daughter, a young lawyer in NYC, asked the same question – is Pinterest legal?  The posted commentary misstated the law:

Kirsten turned to federal copyright laws and found a section on fair use. Copyrighted work can only be used without permission when someone is criticizing it, commenting on it, reporting on it, teaching about it, or conducting research.  Repinning doesn’t fall under any of those categories.
The one glimmer of hope for Pinterest, Kirsten writes, is the outcome of Kelly v. Arriba Soft Corporation.  In that case, a photographer sued a search engine.  The search engine won because it used thumbnail images in its results, not the entire work.

Thumbnails aren’t always fair use, however.  They’re only fair use if the necessary portion of the work is copied and nothing more.  Pinterest, however, lifts the entire image from the original source which is not ok.

Predictions of size, quantity or regurgitation of isolated portions of the Copyright Act are not helpful.  Only an analysis which is active, a balancing of the 4 factors, is useful.  Because Fair Use is a safety valve in the copyright system, one anchored in the US Constitution, it is important that we do not view it with a narrow lens lest we denude its important role in preserving free expression under the 1st Amendment.

The Cariou vs. Prince & Gargosian Gallery case, which I commented on last July and is pending appeal before the 2nd Circuit ( here is Prince & the Gallery’s brief; here is Carious’) provides a rich canvas on which copyright law and the infringement defense of Fair Use can be examined.  Is the Prince case and its focus on Fair Use in the contemporary art world even relevant to current culture given the immediacy of a site like Pinterest which allows everyone to become a recycler and in an iterative way, a creator of someone else’s content?  I think so, and Google’s Amicus Brief filed in the appeal provides further evidence that this case is not just about appropriation art.  As Google points out, whether or not there is commentary on or criticism of the original work, it is the use of the work which must be transformative, and Judge Batts’ holding in Prince,  that for an allegedly  infringing work to pass the Fair Use test, it must “in some way comment on, relate to the historical context of, or critically refer back to the original works,” misconstrues the law, and is too narrow a test for Fair Use; the decision should be clarified.  Section 107 does not state that there is any one way to apply Fair Use.  It recites that Fair Use includes copying “for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright.”   The clear meaning in the statute is that the stated uses are examples of, and not limitations on, qualifying uses.

And as the Warhol Foundation for the Visual Arts Amicus Brief filed in the Prince appeal so eloquently points out, collage and other appropriation strategies “communicate.”  Sometimes they create “new meaning by focusing a viewers’ attention on the social context of the borrowed imagery.” (Warhol Foundation Brief, p.19.)  “The capacity of people to participate in culture and express themselves resides squarely in their ability to reference, change, modify, dissect and criticize existing expression,” which is how copyright’s Fair Use doctrine supports the 1st Amendment’s core value of freedom of speech and expression.
Mr. Prince’s admission in his deposition, that his use of Mr. Cariuos’ Rastafarian photos without seeking permission was simply to make “great art that makes people feel good,”not to create a statement or commentary on the original work, was cited by Judge Batt to undermine Fair Use.    Can the question of  whether a new work is a “new work of art” be as simple as the artist’s intent?   If the answer is that creativity alone is what the law must both encourage and respect as a Fair Use, then Prince’s work transforming Cariuos’ static content should satisfy the test of Fair Use, a balancing of interests as statutorily defined in Section 107 of the Act, and as interpreted by the courts. Randy Kennedy with the NYT reports that Prince’s appellate lawyer Josh Schiller, at Boies, Schiller & Flexner, has remarked boldly, “This is not piracy…These are not handbags,”  directing us back to one of the 4 factors – what is the market effect on the existing work?

The Prince appeal, presenting a procedural pause in the ultimate final decision-making surrounding the issue of Fair Use within the context of appropriation art, provides time for observers to focus more broadly on the cultural context in which art for its own sake, and copyright law, now derive meaning.  Prince’s current exhibit, Prince/Picasso, now happening at the Picasso Museum Malaga in Spain, proves that at some point, what Prince did to Cariou’s work, he has also done to Picasso’s but with a different outcome.  The Museum Malaga’s press is affectionately calling the new exhibit a “cannabalization” of Picasso’s works.  Critics on the international scene are heralding Prince’s work with artistic merit, and it is exhibited with the imprimatur of the Almine & Bernard Ruiz-Picasso Foundation for Art (FABA). Perhaps Prince had permission to cannabalize Picasso’s work from the copyright Owners, which distinguishes this new work from Cariuos’ photographs which Prince used without permission. But this is exactly why Fair Use is necessary – it allows use without permission in advance – so lack of permission is never the dispositive issue.  What is relevant to this cultural discussion is the similarity between Prince’s artistic cannabalization of Cariuos’ work and his same style of cannabalization in the new Picasso exhibit.  In both bodies of work, Prince has practiced his art in almost an identical manner – he has transformed the existing work by creating his own imaginary rendering to the faces, the bodies, the context of the work he adapts and transforms to create his own new signature work.  Under the mantle of Picasso’s priviliged status in the international art world – that of an artist challenging convention all the way to its natural edge – Prince’s artistic edge looks pretty good.  As art collector and Observer columnist Adam Lindemann opined about Prince in his piece last March, “If, as Pablo Picasso (paraphrasing T.S. Eliot) is oft quoted as saying, ‘Good artists borrow but great artists steal,’” then Richard Prince has indeed the wherewithal of a great artist.

See also Jose´Lebrero Stals, Artistic Director of the Museo Picasso Malaga, interview of Richard Prince at artdaily.org  here.
Juxtaposition of the images in the new Prince/Picasso  exhibit  with Carious’ and Prince’s works underlying their dispute can be viewed here in a recent piece by David Walker at pdn news.

Woke up this morning to see this moving post at Waxy.org by Andy Baio, self-described as “a writer and tech entrepreneur in Portland, OR. I work with Expert Labs, helped build Kickstarter, founded Upcoming, made an album, and other stuff too.”  He is the producer of Kind of Bloop, a tribute to Miles Davis’ Kind of Blue. Rights to the cover songs were cleared, but the iconic cover art was not, resulting in a lawyer’s demand to cease and desist, and pay statutory damages and attorneys’ fees.  After a 7 month battle, $32,500 settled the copyright and DMCA infringement dispute over the pixilated digital reinterpretation of renowned still photographer Jay Maisel’s original photograph of Miles Davis. Andy defended his use as Fair Use, and his post includes lots of examples of pixated art and images which pass the transformational test courts use in the Fair Use analysis.  But as Andy laments in his post:

“In practice, none of this matters. If you’re borrowing inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you’re in danger. If your use is commercial and/or potentially objectionable, seek permission (though there’s no guarantee it’ll be granted) or be prepared to defend yourself in court.”

I am posting this here as a springboard to a further discussion about Fair Use in the Prince case. Read the rest of this entry »

In thinking about how I can use this new Blog to help clients, I have decided to talk about one of my favorite parts of copyright law, practice and the cosmos– and that involves really focusing on what it is that we are talking about when we turn our attention to a work and ask the initial question – who owns it, or will own it when it is created, and who may claim an interest in its use?  So in thinking about this, and in reading a great article (unfortunately requires a subscription…) this morning by Meir Feder about the recent 3/18/2011 Cariou v. Prince appropriation art infringement decision, I went where I always do when I ponder copyright – to anything I can find by Professor Kenneth Crews.  This morning I found his recent 6/24/2011 post at the Columbia University’s website from which he blogs and want to share it here as the beginning of what I hope to articulate about mindfulness and copyright.  Kenny’s post provides a great explanation of the step-by-step analysis necessary when using another’s photographs in your book.  His comment instructs on how images of imbedded works, like photos of art or architecture, might involve layers of copyright issues, something easily missed if you just consider the external copyright.  This first step, which I call characterization of the work, is critical.  Here’s his instruction (with his internal links):

Step 1: Assess the materials you are planning to use. Line up the photographs as well as any other poetry, music, lengthy quotations where rights are held by other parties. In the example of photos of art and architecture, you may need to assess two copyrights in a single work: the photographer may hold the copyright in the photograph, but the artist or architect may hold rights in the work that is captured in the photo. In general, make an inventory of the works you want to include in the book and carefully document all relevant information about each item. Read the rest of this entry »