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 9th Circuit’s holding in Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146 (9th 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.