This is the question posed at the beginning of the catalog issued by The Museum of Modern Art in New York in connection with its recent exhibition, The Original Copy: Photography of Sculpture, 1839 to Today. The exhibition explored how "[t]hrough crop, focus, angle of view, degree of close-up, and lighting, as well as through ex post facto techniques of darkroom manipulation, collage, montage, and assemblage, photographers not only interpret the works they record but create stunning reinventions."
MoMA, of course, explored the question from an art historical and aesthetic point of view. When lawyers get involved, they tend to focus on the legal issues that may attend the use by one artist (the photographer) of a copyrighted work by another (the sculptor).
These issues are squarely before a federal court in Seattle, Washington, in a lawsuit brought by sculptor Jack Mackie against photographer Michael J. Hipple. Mackie is co-owner of the copyright in a Seattle public art work entitled "Dance Steps on Broadway" ("Dance Steps") that was installed between 1981-1982. The work includes eight groupings of two-dimensional bronze shoe soles, embedded in the sidewalk, that reflect the steps to popular dances such as the "Foxtrot Weave" and the "Lindy Hop." In October 1997, Michael Hipple took a photograph of a person interacting with some of the steps for the "Mambo." Hipple submitted the photograph to a stock agency, and earned approximately $30 on the sale of the image.
Mackie sued Hipple and his stock agency, alleging a violation of his copyright in the sculpture. The stock agency settled and took the image off its website. In August, the court denied Hipple's motion to dismiss the case as time barred, and the litigation continues.
Hipple is defending the case on two grounds. First, Hipple contends that Mackie's copyright is unenforceable against Hipple's photograph because the elements of the sculpture that are contained in the photograph do not possess the level of originality necessary for copyright protection. The footsteps, after all, reflect dance steps that Mackie did not create. Second, Hipple argues that his inclusion of a portion of the sculpture in the photograph is protected by the doctrine of "fair use."
As we discussed in the Spring 2009 issue of The Legal Canvas, "fair use" is a legal doctrine that became the subject of widespread popular discussion after the Associated Press sued artist Shepard Fairey alleging that Fairey's iconic "Hope" poster of candidate Barack Obama violated its copyright in the photograph on which the poster was based.
The doctrine also recently formed the basis of a federal ruling in favor of a sculptor who claimed that the use of a photograph of his work on a United States postage stamp violated his copyright in the underlying sculpture. Before considering that case and the impact that it may have in the Seattle litigation, it is important to put the doctrine of "fair use" in context.
Background: What is the point of Fair Use?
The Founding Fathers considered the concept of copyright to be important enough to be included in the Constitution. Its purpose is to "promote the Progress of Science and useful Arts," and Congress is instructed to do that by "securing for limited Times" to a creator the "exclusive Right" to his or her creations. In other words, because the Founding Fathers understood that society benefits from the creativity of its citizens, they instructed Congress to provide an incentive for them to create.
The benefit to society that the Constitution seeks to promote is "progress" in science and the arts. Progress necessarily involves "conversation" – both a conversation with what has come before and a conversation among scientific and artistic contemporaries. In the arts, that conversation will from time to time include a specific reference in a work by one artist to the work of another.
That reference can be as subtle as a color, or as brazen as the wholesale appropriation of an image.
In deciding where to strike the balance between the "exclusive Right" of an artist to benefit from his work, and the benefit to society of allowing another artist to use that work for certain purposes, the courts often look to "fair use."
Codified in Section 107 of the copyright law, the doctrine provides that the reproduction of another artist's work may be considered fair (and therefore permissible without getting the other artist's permission) when it is used for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Whether the particular use is fair is determined by considering four factors on a case by case basis: the purpose and character of the infringing use; the nature of the underlying work (is it more creative or more factual); the amount and substantiality of the portion of the underlying work that is used; and the impact that the infringing use may have on the market for the underlying work itself or derivative works based on it.
In recent years, the first factor – the purpose and character of the infringing use – has become a predominant focus in cases involving the application of the fair use doctrine to works of art. And, more and more, the analysis of that factor has revolved around the question of whether the use is "transformative." As articulated by Judge Pierre Leval in a seminal article in the Harvard Law Review, in order to be transformative, the "use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test…. If, on the other hand, the secondary use adds value to the original – if the quoted material, is used as raw material transformed in the creation of new information, new aesthetics, new insights and understandings – this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society." The Supreme Court has adopted Judge Leval's notion of transformative use. Over time, the concept has been expanded to include not only changes to the original work, but also uses that facilitate the development of information and education.
Gaylord v. United States – When a memorial sculpture becomes a commemorative postage stamp.
Under the American common law system, the meaning of a statute (particularly one that requires the determination of issues that are as subjective as the factors at issue in the fair use doctrine) is interpreted and developed over time by the application of the statutory provisions to the very specific facts of individual cases. As each case is decided, the law becomes clearer – each decision adding a pixel to a picture that is still unfinished. In February 2010, the United States Court of Appeals for the Federal Circuit added another data point, applying the fair use statute to a case involving an image on a postage stamp.
When Congress passed legislation authorizing the creation of the Korean War Veterans Memorial, a team from Pennsylvania State University submitted the winning proposal for its design. The work would feature a group of stainless steel statues of foot soldiers, titled "The Column." As described in the original proposal, "[f]rom a distance," the statues would have "an elusive, dream-like presence of ghostly figures moving across a remote landscape." Ultimately, sculptor Frank Gaylord was commissioned to complete the Memorial based on the Penn State proposal. Gaylord registered five copyrights related to "The Column" throughout the construction process, each capturing a different design phase. The Memorial opened to the public in 1995.
In January 1996, as a gift to his father, a Korean War veteran, photographer John Alli took a photograph of "The Column" that he titled "Real Life." The photograph captured 14 of the 19 soldiers in the sculpture covered in snow on a grey morning. When Alli decided to sell the photograph, he sought and received permission from the party whom he mistakenly believed owned the copyright. In exchange for the permission, Alli agreed to pay that party a 10% royalty on sales. The party did not notify Gaylord about the transaction; Gaylord sued Alli for copyright infringement; and the case was settled out of court.
In 2002, the United States Postal Service issued a thirty-seven cent stamp using Alli's "Real Life," entitled "Korean War Veterans Memorial." The Postal Service paid Alli $1500 for the use of the photograph, but never contacted Gaylord to obtain a license to use the image of the underlying sculptural work. The Postal Service received almost $17 million in revenue from the sale of almost 48 million stamps; $5.4 million of that revenue was from sales of stamps to collectors who did not use them. In addition, the Postal Service sold other merchandise depicting the stamp.
Gaylord brought suit against the Government, alleging copyright infringement. The Government argued that the use of the image of the Memorial on the stamp was protected by the fair use doctrine. The trial court agreed, and Gaylord appealed.
On appeal, the Postal Service argued that the photographer's choice to capture the figures covered in snow, graying the color to create an image where one could not determine whether the soldiers were human or statue, transformed the character of the copyrighted work and therefore satisfied the first factor of the fair use analysis. The Court of Appeals for the Federal Circuit rejected the argument.
In its decision, the Court methodically addressed each of the four statutory factors, finding that the first three mitigated against a finding of fair use. It found that the stamp had no different or further purpose than the Memorial itself; for each, the purpose was to honor Korean War veterans. Nor did the photographer's decision to photograph the sculpture in the snow (as opposed to warm sunshine) "transform its character, meaning, or message." The Court also found that the revenues that the Postal Service earned through the sale of the stamp clearly reflected a commercial purpose, a criterion that weighs against fair use. The Court next addressed the nature of the sculpture as the underlying work, finding that it was "expressive and creative," as opposed to factual and explicative. The Court also found that the stamp used a substantial portion of the sculpture – 14 of the 19 figures in "The Column." Indeed, the image of "The Column" was both the graphic and conceptual point of postage stamp's design.
The only factor that the Court found to support a finding of fair use was the final one. The Court held that the stamp did not have a negative impact on the market for derivative works – in other words, the fact that the image was used on the stamp was unlikely to affect Gaylord's ability to profit from other works based on the image. Weighing the four factors, the Court concluded that "[e]ven though the stamp did not harm the market for derivative works, allowing the government to commercially exploit a creative and expressive work will not advance the purposes of copyright in this case." The Court found in Gaylord's favor, and sent the case back to the lower court to determine damages to be paid by the government for copyright infringement.
How might Gaylord affect Mackie?
The Gaylord case did not determine whether the photograph of the Memorial was itself protected by the fair use doctrine. The Court's ruling was that the use of the photograph on a postage stamp was not. Its analysis may have been very different had Alli not settled with Gaylord and had been sued for infringement.
The factual record has not yet been developed in the Mackie case, but based on the allegations in complaint, the court's opinion on Hipple's motion to end the case, and a series of press interviews, there is some reason to believe that the outcome of the case may be different than the outcome in Gaylord.
The most compelling (and perhaps legally significant) difference between Hipple's picture of the Seattle sculpture and Alli's picture of "The Column" is the extent to which Hipple staged and designed the image. The Gaylord Court dismissed the artist's decision to photograph the sculpture in the snow as "Nature's choice," and said that it did not change the purpose or character of the underlying work. In photographing the sculpture in Seattle, Hipple arguably took a more active role in creating his image, adding the leg of a person interacting with the dance steps. The leg enters the frame from the top left corner of the photograph and becomes the deliberate focus of the image. The picture becomes less about the sculpture and more about the person who is dancing on it; less about the disembodied concept of dance and more about dance itself. Whether the image of the sculpture will be determined to be transformative is still an open question, but it appears to be a closer call than it was in Gaylord.
A fertile ground for litigation.
There will always be some level of uncertainty in fair use cases. The four fair use factors are predominantly factual and the weighing of them subjective. The outcomes then will depend in large part on who is deciding the case. Different people, and therefore different judges, will each have his or her own view of whether an image has been "transformed."
Cases involving certain forms of contemporary art can be particularly dependent on the court's willingness to entertain and accept fairly sophisticated art theory. A judge faced with a copyright claim involving a straight photograph of another artist's sculpture may or may not be willing to accept the photographer's argument that his appropriation of the image was intended to parody the work, to comment satirically on society, or to serve some other purpose different fromthe purpose served by the sculpture itself.
A potential plaintiff is unlikely to bring a lawsuit when he or she knows that there is no chance of winning. But where the outcome is at least uncertain, there is an incentive to litigate or to threaten litigation. And, because litigation costs money, the threat of litigation creates leverage to procure a settlement.
One way for an artist to avoid litigation is simply to get permission from the artist whose work he is seeking to use. With a license from the original artist, the doctrine of fair use doesn't even come into play and each artist's rights are clear. Alli took that step with Gaylord and the subsequent litigation did not challenge Alli's photograph of the sculpture, only the government's use of it.
Many artists, however, prefer not to seek permission for their art. In some cases it is a matter of sheer artistic pride. In others, though, it relates back to the concept of "conversation" – one artist's ability to comment on the work of another should not depend on the willingness of the other artist to receive the comment. Encouraging and protecting this conversation, and the progress in the arts that it engenders, is the purpose of the copyright law in general and of the fair use doctrine in particular. But in a litigious society, what the law of fair use gives, the uncertainty and expense of litigation may take away (or at least modify).