Can a painter/collage artist use copyrighted photographs in his works without permission of the photographer? In a closely-watched case, the Court of Appeals for the Second Circuit said in April that the answer is mostly a "yes."

The case is important because of the desire and need in culture for artists to refer to other works and artists in order to express themselves -- and to connect with the cultural references all around us in popular culture. It just so happens that much of that popular culture is protected by copyright (think of Mickey Mouse, Ansel Adams' works, the movie Children of Paradise, The Great Gatsby, and so so much more). Seeking permission is time-consuming, sometimes expensive, and runs the risk of being turned down by the rights holder. Invoking the fair use defense is an appealing option – if it's legal.

It had been hoped that the case of Patrick Cariou v. Richard Prince would clear the sometimes murky waters of fair use. The waters of copyright are, however, clear enough to see that the fair use defense, which allows artists to use copyrighted works of others without obtaining permission, is on the rise.

But the exact trajectory of that ascendancy and the precise fair use rules remain unclear. It's less than certain that the opinion of the Second Circuit, the country's leading copyright court, has added much clarity in this situation.

Prince is a self-proclaimed "appropriation artist." He incorporated several of Cariou's photographs from the book "Yes Rasta." Prince called his series of paintings and collages "Canal Zone." Cariou sued Prince in federal court. Prince lost in the district court and appealed to the Second Circuit.

Perhaps the key question is whether the reuser has to comment on the original work or artist, or even popular culture, in order to qualify for the fair use defense. In other words, does the use without permission have to fit into a cultural context, or is the question of whether the use is fair or unfair come more down to a technical nature of the statutory factors setting forth what’s a fair use? The court doesn’t entirely answer this important question.

Part of what makes the inquiry of interest is the increasing focus in fair use cases (especially in the Second Circuit) of whether a fair use creates a transformative work. In other words, where the secondary work isn’t just a literal copy the work, but rather the secondary artist is transforming the original work, or at least placing the prior work in a new and different context.

On that point, the Second Circuit says "What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so. Rather than confining our inquiry to Prince's explanations of his artworks, we instead examine how the artworks may 'reasonably be perceived' in order to assess their transformative nature."

The court summed up saying that "The focus of our infringement analysis is primarily on the Prince artworks themselves, and we see twenty-five of them as transformative as a matter of law."

So, the determination is in the eye of the beholder and not the mind of the artist. (In a deposition Prince said that he wasn’t commenting – he just wanted to use the images).

In a sense, perhaps an inquiry into the state of mind of the artist is unnecessary. Requiring the secondary user to express a particular kind of answer might lead to after-the-fact self-justifying of what he or she did and why. Still, upholding the free use of so many copyrighted photographs without permission in part because "ordinary observers" would believe that the use is transformative puts the photographer in an uncomfortable position both in terms of controlling publication of his works and also in making money from his art.

The court ruled that 25 of 30 Prince's uses were fair. But the Circuit Court remanded to the lower district court the task of determining if those other 5 uses of Cariou’' works by Prince are fair uses or not, based on the new holding in the case.

The consequence of this decision might be, in fact, that if a court finds that the secondary artist has created what the court calls a "drastically different approach and aesthetic" a fair use will be very likely to be found. The court may be both elevating the question of transformation as a fair use value -- and at the same time lowering the bar to reach that transformation. If courts follow those themes, copyright owners will fare even worse when they claim copyright infringement in cases in which a secondary artist has transformed the works into "something new and different."

So, there's a greater ability for artists to reuse works but in doing so it's fair to ask the question if the works of the first artist are been treated as elements for use, like paint itself, rather than as highly protectable work. We can’t entirely have it both ways when artists clash in this way. The balance continues its tipping in favor of the secondary user. The rise of the fair use defense continues.

For further reading on this fascinating case, the New York Times has a good summary at:

http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html