Last night was a fascinating evening at the Sotheby’s Institute in New York, where Judith Prowda was celebrating the launch of her new book Visual Arts and the Law (Lund Humphries 2013).  The book, not at all incidentally, is a must-have.

Professor Prowda moderated a panel discussion between Amy Adler of NYU Law School, and Dale Cendali of Kirkland & Ellis about the fallout from this year’s Prince v. Cariou decision by the Second Circuit.  Prof. Adler was a special consultant to Boies Schiller for Richard Prince, while Ms. Cendali and her colleagues submitted a brief for amici curiae the American Society of Media Photographers and the Picture Archive Council of America in support of Patrick Cariou.

Prof. Adler began, and gave a ringing defense of the result and of Prince.  This was, I have to say, refreshing in that it is a perspective less advocated since the decision, and thus important to a meaningful discussion.  As Adler put it, when she had the opportunity to participate with Prince’s team, she did so eagerly because of what she saw as the free-speech implications of the District Court’s opinion that found Prince’s Canal Zone work to be infringing and ordering their destruction.  Put another way, she said, “this was an easy case.”  Acknowledging the ascendance of the first fair use factor (“purpose or character of the use”) as applied to mean “transformativeness,” Adler pointed to the differences in scale, the violence done to the physical pages of Cariou’s work, and the desecration to Cariou’s reverential images of Rastafarians in a natural environment through the defacement of the images, juxtaposition with pornography, and insertion of elements of popular culture like electric guitars.  To Adler, the most obvious message was the desecration through popular culture to those that have escaped from it.

That desecration was a foundation of Adler’s argument that fair use was obvious in the case of Prince.  Specifically: if Prince had asked for a license, it is barely imaginable that Cariou would have agreed, because the images are so insulting the subjects of Yes, Rasta.  But that, in turn, was Adler’s point: insulting speech, obnoxious speech, is precisely that which most needs the protection of the First Amendment.  As she put it, fair use is about protecting free speech, not people’s feelings.

By sharp contrast, Cendali focused on the premise that there are two artists involved, and her concern that the Second Circuit prioritized Prince over Cariou.  Given that photography is undeniably capable of copyright, she expressed alarm over the recent trend of contrastingphotographs with art under copyright.  Photography, she reminded the audience, is not mechanical, it is artistic.  And, she noted, once upon a time courts viewed the fourth fair use factor (effect on potential markets)—not the first—as the touchstone of fair use analysis.  That factor requires its due, Cendali pointed out, because of the inherent economic incentive underlying copyright and the grant in Article I of the U.S. Constitution.  She gave as an example the Associated Press, which she noted was met with puzzlement when it fought Shepard Fairey’s “Hope” photograph.  Without the licensing fees that copyright affords, the AP cannot put its photographers in the field.  Without the photographers in the field, there are no photographs.

Against this backdrop, Cendali noted what she thought were the most glaring of the Second Circuit’s errors: the court’s passing reference at most to photography as art; its failure to compare and analyze fair use relative to the exclusive right that a copyright holder has to make derivative works from the original; and its disinterest in the intent of the artist as replaced with a “reasonable viewer” standard.  This puts the court in the place of art critic, which was expressed in Judge Wallace’s dissent.

Cendali closed with posing the question of whether the Second Circuit has effectively prioritized certain kinds of art.  The decision’s condescending references to Cariou’s limited market for his works, compared with Prince’s rich and famous clientele, certainly left a bad taste with most.  In a larger sense, Cendali suggested that this likewise promotes “high” art over “low” art.

Both speakers were thought provoking to say the least.  Scholars and commentators have been taking potshots at the Prince decision for months, and piling on here would do little good.  But these two extraordinary speakers and lawyers framed the issue in a way that leaves me with some thoughts that take shape with the benefit of some distance from the initial passionate reactions.  The first was how effectively Adler frames the free speech concerns.  That is to say, it may well be that giving offense is the message.  Indeed, Justice Souter went to great lengths to distinguish the “bawdy” nature of 2 Live Crew’s parody of “Oh, Pretty Woman” to point out (not so subtly) that his view of quality is not the point (“Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use.”).  Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994), fundamentally, answered the then-open question of whether a commercial use could be fair use (yes), and whether parody could be fair use (also yes).  But how the Supreme Court got there, disparaging casual borrowing on the one hand, but accentuating the importance of transformation on the other, sowed the seeds of the ongoing fair use battle, perhaps most acutely in the visual arts.

Another festering issue in fair use is whose perspective is used.  The Second Circuit’s “reasonable observer” sounds good, but particularly when one looks at the images held to be fair us as a matter of law on the one hand, and those remanded for further consideration, it is not hard to see the opportunity for mischief (and perhaps the outsized importance of good lawyering).  And, revealing my own practitioner’s bias, I find it troubling that Prince could so strenuously reject having had any critical, parody, or message based intent with regard to Cariou’s photographs, and still be deemed to have made a fair use.  I’m troubled by the thought that an artist can subjective not care what his art means while using another’s work as “raw material,” (another phrase from the Second Circuit that is among the most objectionable).  Perhaps I’m old-fashioned, but I recall a passage from The Elements of Style that, paraphrased, chastised accidental meaning.  As Justice Souter said in Campbell:

“If [] the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.”