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A (Semi-)Victory for Appropriation Art

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There was a semi-big win for appropriation art, not to mention appropriation artist Richard Prince and New York's Gagosian Gallery. The U.S. Court of Appeals overturned a lower court ruling that found Prince had violated the copyright of French photographer Patrick Cariou, when the artist produced his own collage paintings using Cariou's images of Jamaican Rastafarians from his 2000 book Yes Rasta.

In the ever-changing landscape of what constitutes copyright infringement and fair use, this ruling is likely to set a precedent for other courts and the art world in general, where the borrowing of and commenting on existing copyrighted images is a widespread practice known as appropriation.

In the April 25 ruling, Appellate Judge Barrington Parker agreed with Prince and the Gagosian Gallery, where the painter's works had been exhibited and sold in December 2008, that Prince's work:

is transformative and constitutes fair use of Cariou's copyrighted photographs, and that the district court imposed an incorrect legal standard when it concluded that, in order to qualify for fair use defense, Prince's work must 'comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos.'

During the lower court trial, Prince made no claims that his paintings were comments on or parodies of Cariou's photographs, going so far as to claim that the paintings "don't really have a message" of any sort. That led District Court Judge Deborah Batts to view Prince's use of the photographic images as pure stealing. "If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer's claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense," she wrote. However, the Appellate Court took exception to that reasoning, claiming that "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."

There were 30 paintings in that Gagosian Gallery exhibition, and the Appeals Court found that 25 of them fit that transformative standard. The remaining five are to be sent back down for a lower court to rule on. Arts lawyer Donn Zaretsky pointed out in his Art Law Blog that this failure to rule on all of Prince's paintings makes this an incomplete victory for fair use:

What is the district court supposed to do now? Stare at them side-by-side a little longer? If the appellate court couldn't 'say for sure whether [this work] constitutes fair use or whether Prince has transformed Cariou's work enough to render it transformative' (my emphasis), what more can the district court do to resolve that question?

In his artwork, Prince scanned several of Cariou's images of people and landscapes into his computer and printed them directly onto his canvases, defacing them in limited ways (placing an electric guitar in one Rastafarian's hands and daubing paint onto the face, for instance), as well as adding other elements to the paintings. Prince "didn't transform these photographs, he just used them," said Cariou's lawyer Daniel Brooks, but it was Prince's contention that he took the photographer's images as raw material -- in the manner of an assemblage sculptor's "found objects." When sculptor John Chamberlain created sculptures based on parts from damaged automobiles that he found in junkyards, Ford and General Motors did not sue him for taking and using what was theirs.

Brooks noted that Prince could have avoided the problem altogether by traveling to Jamaica and taking his own photographs that he scanned onto his canvases, but the entire point of Prince's art is commentary on images that already exist in the world.

Other artists have stumbled into a gray area of the law, and it is quite likely that others will as well. "It's meant to be a gray area, because the copyright law is designed to be flexible," said John Koegel, a lawyer who successfully represented artist Jeff Koons in a similar infringement lawsuit by a commercial photographer, Andrea Blanch, in 2005. "The law states that the use of a copyrighted image is transformative based on the ordinary lay observer's sense of if the new work is different and how different it is. It is very much of a visual thing, and there is no bright line that artists can go by."

In fact, Koons has been sued twice by photographers for copyright infringement, the first time in 1989 in a case that he lost and the second time where he prevailed. In the 1989 case, a photographer, Art Rogers, had created a line of notecards with an image of a man and woman holding a litter of puppies, entitling the picture "Puppies." Koons purchased one of these cards, tore off Rogers' name and copyright notice, and sent the card to Italian artisans (with whom he had worked in the past) with the instruction that they should copy the image as a sculpture, which was entitled "String of Puppies." Koons claimed that artistic freedom would be abrogated if artists could not make parodies or create work that somehow showed the influence of other artists. The court's reading of the copyright law, however, did not support Koons, finding that the artist had not parodied but simply copied the photographic image and "that Koons' copying of the photograph 'Puppies' was done in bad faith, primarily for profit-making motives, and did not constitute a parody of the original work."

In the second case, Andrea Blanch's photograph, titled "Silk Sandals by Gucci," shows the lower part of a woman's bar legs crossed at the ankles, resting on a man's knee. The woman is wearing Gucci sandals, one of which dangles from her toes. The photograph appeared in an August 2000 issue of Allure Magazine. Koons acknowledged that his painting "Niagara" copied the woman's legs, feet and sandals, omitting background element in Blanch's photograph, inverting the image so that the legs are vertical, feet down, rather than horizontal and adding three other pairs of women's legs and feet. The judge in that case labeled Koons' use of Blanch's imagery "transformational," legitimizing Koons' actions under the fair use provision of the federal copyright law.

Working against artists, Koegel claimed, is the fact that:

the law hasn't accepted two principals that are well understood in the art world. The first is that a change in medium is transformative. If you go from two to three dimensions, you are transforming something and it is experienced very differently than it had been. The second is that re-presentation is transformative; when you are taking something and making a comment on it, even when the thing you are commenting on is relatively unknown, that comment makes it protected as a fair use of a copyrighted image.

Like so much in the field of copyright law, those two principals are not absolute. Shifting from one medium to another is not a way of avoiding a lawsuit. For instance, turning a novel into a film makes a shift in medium, but without the permission of -- and, probably, a payment to -- the author, the filmmaker would be in violation of the writer's copyright, because the author has the exclusive right to make "derivative" works or license the making of a film. "Where derivativeness ends and transformative begins is not at all clear," said Robert J. Kasunic, principal legal advisor at the U.S. Copyright Office in Washington, D.C. Also, he noted, a sculptural version of a copyrighted two-dimensional work would not necessarily be considered transformational if there weren't some element of creativity added to the new work. Similarly, justifying appropriation of copyrighted material on the basis of making a commentary or parody only works "if the average person can see" that some comment is being made, he said.

The ordinary viewer may not be familiar with the customs and logic of the art world, taking what they see at face value rather than as irony. It is that collision of two worlds that makes copyright issues fraught with uncertainty. Jessica Litman, a professor at the University of Michigan Law School, claimed that part of the reason that Koons lost the first case but won the second was that "the first time he came into court with a lot of art world attitude about 'I'm the artist, I can do whatever I want,' and the second time he made a more reasonable statement about the kind of message that appropriation art sends. That goes a long way." The nature of the infringement was also different in the two instances, but the overall trend of court decisions between 1989 and 2005 (and the present) is to allow greater latitude for the claim of the new artwork being transformative. "There is more sympathy in the legal environment, maybe it has gone too far," Kasunic said.

There is no road map for artists whose subject matter includes existing images. To be safe, artists might request permission from the copyright holder of images they might use, although such a request might suggest that they knew they were infringing if a lawsuit is filed by a copyright holder who didn't agree to the use, although an artist then could counter that he or she sought to negotiate in good faith. What a headache. Koegel noted that there is no specific amount of changes to be made in a copyrighted image that allows it to be considered "transformed" into something else. Artists might want to consult a lawyer for an opinion on their artwork or "just to get a sense of the law." What constitutes copyright infringement, however, is determined on a case by case basis.

This case, however, may have cleared the way for a more artist-friendly vision of copyright law.