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.