Appropriation artists deliberately borrow images (sometimes famous images, such as Andy Warhol’s uses of Campbell Soup labels) which have a known setting and recontextualize them in new works of art. Two years ago, a copyright infringement dispute arose between a photographer named Patrick Cariou and an appropriation artist name Richard Prince when Prince used photographs from Cariou’s book Yes Rasta in a series of collage-like works called the Canal Zone paintings (sample images can be found by searching online). Prince argued unsuccessfully in the federal district court that his use of the photographs is a fair use under copyright law: the fair use doctrine is a defense to a charge of copyright infringement that allows persons to make use, under certain conditions, of portions of copyrighted works without the permission of the copyright owner because the use is “fair.” Courts evaluate whether or not a certain use is fair on a case-by-case basis under a four factor test, one of which involves an examination of the purpose of the use. As part of that examination, courts look to see whether the use of the copyrighted work is “transformative.” This term has caused some analytical confusion because one of the exclusive rights enjoyed by a copyright owner is the right to prepare a derivative work of art by modifying an original work of art so that the original is “transformed,” which is the term used in the relevant section of the Copyright Act. However, just because a new work transforms an original, which makes the new work a derivative of the original, that does not necessarily mean the new work is “transformative” in a sense that meets the standard of fair use, especially if the derivative “transformed” work has been created without permission of the copyright owner. Traditionally, courts have found uses to be transformative, and consequently fair, if the new work has been created for purposes like literary criticism, cultural commentary, news reporting, teaching, scholarship, or research. Whether Prince’s art is transformative of Cariou’s photographs is one of the strongly contested issues in the Cariou v. Prince case, partly because Prince said, somewhat notoriously of the first Canal Zone, that he was trying to create “a balls-out, great, unbelievably looking great painting that had to do with a kind of rock-and-roll painting on the radical side, and on a conservative side something to do with Cézanne’s bathers.” This statement has been read by Cariou and by some friends of the bench who have filed amicus briefs in support of Cariou as a declaration that Prince was not trying to engage in any substantive cultural commentary in creating the Canal Zone paintings. Because it may be true that painters are not always the most articulate critics of their own works, the Second Circuit, where the case now stands on appeal, may not give as much weight to the implications of Prince’s assertion as Cariou would like. However, it is too early to tell where this case will go, but the art world is watching it closely, and, whatever the Second Circuit decides, this case may be the next copyright case to be petitioned to the U.S. Supreme Court.
Register Now As you are not an existing subscriber please register for your free daily legal newsfeed service.Register
If you have any questions about the service please contact firstname.lastname@example.org or call Lexology Customer Services on +44 20 7234 0606.
If it transforms, is it transformative?
If you are interested in submitting an article to Lexology, please contact Andrew Teague at email@example.com.
"Lexology is a quick and useful indicator of developments in the legal sphere. It alerts me to changes taking place in the legal environment in South Africa that I may not otherwise have spotted or had immediate access...
"Lexology is a quick and useful indicator of developments in the legal sphere. It alerts me to changes taking place in the legal environment in South Africa that I may not otherwise have spotted or had immediate access to as a company lawyer. It definitely serves as a trigger for me to investigate such changes in the legal landscape in South Africa as they may affect my work and that of my employer. I believe that receiving Lexology provides me with a competitive advantage."
Dr Jürgen Fegbeutel
Legal Services Director
BMW (South Africa) (Pty) Ltd