Appeals Court Overturns Richard Prince Ruling In Victory For Fair Use & Appropriation Art

from the that's-more-like-it dept

It was over a year ago when we last wrote about Richard Prince, the famous appropriation artist who was sued by photographer Patrick Cariou, whose photos Prince had used in various collage paintings. In a very troubling ruling, the judge in that case rejected Prince’s fair use defense in a summary judgement, and ordered all 30 relevant works be turned over to Cariou to be sold or destroyed as he saw fit. This was a shock to the art world, where appropriation art has been a popular and highly-respected art form for years, with Prince as one of its best-known practitioners.

Today, we get some good news: the appeals court has overturned the decision (pdf and embedded below) and found 25 of Prince’s paintings to be fair use, while sending the other five back to the lower court so the fair use defense can be properly considered rather than summarily dismissed. There are a few oddities in the details, but overall this is a fantastic ruling that includes some excellent language about fair use.

One of the most disturbing parts about the earlier ruling was that the lower court completely dropped the ball on its interpretation of fair use, incorrectly stating that in order to qualify for fair use, a new work must be commenting on or criticizing the original work. That’s plainly wrong, and the appeals judge set the matter straight:

The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Cariou, 784 F. Supp. 2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.” Campbell, 510 U.S. at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Id. at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.”

Of course, even this judge seems to have a few facts muddled, considering “parody and satire” cannot be casually linked together like that in the context of U.S. copyright law — one is a well-established and codified form of fair use, the other enjoys no such protection. In fact, the initial court’s talk of comment and criticism seems to have stemmed from confusion between the standards for fair use in general, and the standards for parody specifically (where commenting on the original is indeed a requirement).

There’s more good stuff about fair use, including lots of citations, to be found in the ruling, which should be read by anyone who still claims that copyright is a natural right or that stronger copyright always means more creativity:

The purpose of the copyright law is “[t]o promote the Progress of Science and useful Arts” U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990) (hereinafter “Leval”). Fair use is “necessary to fulfill [that] very purpose.” Campbell, 510 U.S. at 575. Because “‘excessively broad protection would stifle, rather than advance, the law’s objective,’”

The “ultimate test of fair use … is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ … would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141

Since the court goes through a full fair use analysis, there’s lots of good stuff on issues other than the transformative one too. The ruling clarifies that neither the “commercial use” aspect nor the “amount of work copied” aspect of fair use is determinative, and explains why Prince’s work qualifies for fair use even though it is commercial and often uses Cariou’s photos in their entirety.

But there’s still a somewhat problematic side to this ruling, and that’s the aforementioned distinction of five works from the rest. It brings us back to a problem we talked about a lot last year when this case was in the courts: judges playing art critic. The fact that fair use is so vague means that, every time it’s tested, it starts to turn into an argument about whether a piece of art is “good” or “worthwhile” — a subjective standard if there ever was one. Among the five that have been sent back to the lower court is the most famous of them all (Cariou original on the left, Prince work on the right):

The ruling draws a distinction between that and one of the other works that it declared to be fair use (again Cariou left, Prince right):

In that comparison, it’s not hard to see how the latter example changes the original “more” than the former. But that’s where the obviousness ends. The true challenge is drawing that line, which the appeals court was not prepared to do:

As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.”

The problem is that I don’t think anyone can say with “certainty” what the meaning of a piece of art is, and that includes the artist themselves. In some cases, it seems like the most sensible approach would be to rely on experts — in this case the many galleries around the world that have showcased Prince’s art, and the many critics who have praised it (or, for that matter, condemned it — a new meaning doesn’t have to be something people like). Of course, there are potential problems there, too: many an important art movement was rejected by the established community at its outset.

Overall, the most important part of this ruling is that it overturns the ridiculous assertion that comment and criticism is the only form of fair use — but other than that, it fails to provide much clarity. I’m not certain any court could. There’s no way to guess what the lower court will decide once it goes through the fair use test with the remaining five works, to the point that the question is almost entirely a matter of opinion, and it’s not hard to envision a ruling in either direction. Whenever you have that much uncertainty on a point of law, something needs to be fixed.

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Comments on “Appeals Court Overturns Richard Prince Ruling In Victory For Fair Use & Appropriation Art”

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71 Comments
Rikuo (profile) says:

“?[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.?

So Blue, bob…are you going to yammer on about how copyright’s purpose is somehow supposed to be about enriching the artist? Or that the artist should have total control over the work?

madasahatter (profile) says:

Overall Sounds Good

Fair use is not easy to define precisely but the Appeals Court got the basics correct. Is the work in question a straight copy or does it have its own expressive merit that stands as separate (derivative) work. And they noted that copyright exists to promote arts and sciences so one should lean towards a broad definition of fair use.

tomxp411 (profile) says:

Why do artists steal?

Is it really that hard to ask permission before using someone else’s work, especially if you plan to sell it?

Look at Weird Al Yankovic: he’s made a principle of always getting permission from the songwriters he parodies. In fact, he even pays them royalties – even though he doesn’t have to…

So what is wrong with getting permission, and if you’re denied, moving on to something else?

Malsperanza says:

Re: Why do artists steal?

There’s a long, nuanced and interesting answer to this question. Much of it is contained in the amicus brief attached to the appeal, which is well worth reading.

The short answer is:

a) Artists who do ask are often denied permission. Copyright was never meant to be used as a tool of censorship, or to suppress other, new creativity, but that’s what happens.

b) “Steal” is a loaded and inaccurate term. Since the beginning of time artists have used, reused, modified, and built upon one another’s work. To use the famous example of Manet’s Olympia, the painting could not exist without Titian; Titian in turn “stole” from both Raphael and Raimondi; and Raimondi “stole” from an unknown classical Roman sculptor. That’s how creativity works. It cannot function in a vacuum. It cannot thrive in a permissions culture.

Anonymous Coward says:

Re: Why do artists steal?

For the obvious reason that supposed “rightsholders” often make it a bitch for those who take the time to actually ask permission.

“Weird Al” doesn’t only get permission from songwriters; if the labels decide to bitch for whatever-the-fuck reason he can’t put songs in an album either. “Yoda”, “You’re Pitiful” and “Perform This Way” nearly didn’t get published for those reasons. For that matter, “Weird Al” was told by The Kinks’ label that they refused to let him parody “Lola”. Years later he met the lead singer and asked why – the lead singer said that he liked the idea. The label was bullshitting.

So, yes. It really is that hard to ask permission. “Weird Al” does it because he’s awesome but this is a world where nice guys very usually don’t win.

Anonymous Coward says:

Re: Why do artists steal?

Yes, it really is that hard to ask permission. Creativity is “of the moment” and if you waste time finding the name of the person who did the photo or whatever you’re basing your work on, trying to find a phone number or email address or snail mail address to somehow contact them, then asking, then waiting patiently for the person you’ve asked to eventually get back to you and not bothering to act on your impulse because you might not get permission so it will all be a waste of time, you’ve lost the creative spark. And anyway, artists, who are usually rebels at heart, have never before had to do this asking permission thing that our current “Mother, May I?” society seems to be moving towards in all of human history, so it does seem to throw a monkey wrench into the machinery to suddenly demand that asking permission must part of the creative process.

Yes, let’s look at Weird Al, I do love the guy, but he runs into vexing problems with permission all the time: an artist will suddenly made believe he didn’t give permission because of embarrassment (Amish Paradise), or a well-meaning agent or assistant of a famous star tell him he’s going to ask and then not bother to ask, then tell him she said “no” (there was a very annoying bit of a brouhaha with a Lady Gaga song where Al released the song without permission and only got permission when she heard it later.) Also, Weird Al is famous and 99.9% of all artists are not famous at all and will get the brush-off and completely ignored from the very first “may I?” on.

Plus, sometimes people who are established believe, true or false, that it is not in their financial interests to encourage very talented people who are NOT established, and established artists refusing to give permission for works that have entered the culture and pinged with talented people is a great way to stagnate your culture. If American artists had refused to let the Beatles creatively work off of American songs, we’d have had no British invasion. Conversely, if the Beatles had refused to let American and other British artists creatively work off of their songs, we’d have had no great music revolution of the 60s. If Paramount had clamped down on the fans who gave conventions and wrote fanfiction in the early 70s (as I’m totally sure they’d have done in today’s legalistic climate), there’d have been no great Star Trek cash cow for them to milk to this day. Because nobody asked nobody for permission back then, they just DID THINGS and everybody prospered.

So that is what’s wrong with getting permission. And if an artist is denied, moving on to something else can be a problem, because sometimes creativity drives itself, and it’s going to get expressed one way or another, with or without permission.

The Groove Tiger (profile) says:

Re: Re: Why do artists steal?

The hilarious part is that the asshole manager demanded to read the lyrics before giving permission. Then demanded to see the full finished song before giving permission. Then refused permission.

Al hadn’t even written the song yet. Basically, the son of a bitch forced him to do it in a hurry (or at all) before saying “NOPE”.

Anonymous Coward says:

Re: Why do artists steal?

and what’s so hard about having your works copied without permission? If you don’t like it simply don’t create and publicly distribute the work and move onto something else. No one is forcing you to create and distribute a work. But don’t impose restrictions on me just because you don’t want something copied. Get lost and find something else to complain about.

art guerrilla (profile) says:

Re: Why do artists steal?

weird al is easy to like for a lot of reasons, but i REALLY disagree with his approach to this…
i understand why he does it, but he is ultimately cutting his own throat, and the others who look to do similar take-offs and parodies…
he is -whether intentionally or not- playing right into the hands of the copyright maximalists; now, not only are their artificial and made up rights ‘confirmed’ by his payoff, but it hamstrings every one coming after him who go to do the same thing, and the copyright maximalists beat them over the head with the hammer weird al gave them voluntarily ! ! !

art guerrilla
aka ann archy
eof

RonKaminsky (profile) says:

Feature, not bug

The whole strength of the legal system is that judges are human and are largely free to use their, er, judgment to try to help the court system to, at least on average, dole out decisions which seem just.

That doesn’t mean that other features of the system (e.g., the ridiculously high cost of even getting to court; laws being passed without the public’s wellbeing in mind rather than that of lobbying special interest groups; …) don’t cause distortions and shouldn’t be reformed. It just means that one of the things you criticize isn’t, in the final analysis, all that bad.

Anonymous Coward says:

i find it quite strange that so many judges get copyright rulings wrong. that being the case, why do they preside over such cases when they dont know what is going on or what they themselves are doing? also, with yet again the quote stating what the purpose of copyright is for, why are there so many cases that are obviously only in court to try to get money from people by suing rather than produce good works that would then produce a nice earner??

Anonymous Coward says:

“Whenever you have that much uncertainty on a point of law, something needs to be fixed.”

The law is replete with longstanding “uncertain” standards reaching back centuries in many legal disciplines. “Beyond a reasonable doubt”. “Person having ordinary skill in the art”. “Reasonable man”. “Consumer exercising ordinary care and prudence”. Etc., etc. This does not necessarily mean that something needs to be fixed because the law in many, if not most, instances does not lend itself to mathematical precision. It would be nice if it did, but to achieve this is a virtual impossibility.

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