Fair Use?

‘Copyright protection finds its justification in fair play. A person works and produces something. The product of his skill and labour ought to belong to him … It has long been recognised that only the original author ought to have the right to reproduce the original article and sell copies thus reproduced. If other people were free to do this, they would be making a profit out of the skill and labour of the original author.’

This quotation from the Whitford Report to the UK Parliament on reform of Copyright and Designs law, published in 1977, has become a widely cited explanation of copyright’s rationale.
The US rationale for copyright law is enshrined in its Constitution, at Article 1, Section 8, Clause 8: ‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ Congress enacted federal laws accordingly, and federal courts – including the US Supreme Court – have interpreted and applied such legislation to decide copyright claims. The Supreme Court has decided that ‘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.’ The US rationale for copyright is decidedly not the same as Whitford’s ‘fair play’ explanation.
‘Fair dealing/use’ activities are permitted by most countries’ copyright laws, usually limited to: private study, criticism or review, education or instruction, and libraries and archives. Claims of copyright violation are decided by courts according to the facts of each case: whether a fair dealing/use has been made out by the defendant is a judicial question of mixed law and fact. In the US, its Supreme Court has ruled that fair use is ‘necessary to fulfill [Clause 8’s] very purpose … because excessively broad protection would stifle, rather than advance, the law’s objective’; and that ‘the fair use doctrine mediates between the property rights copyright law establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express ourselves by reference to the works of others, which must be protected up to a point.’
Unlike UK legislation, US copyright law specifies factors courts must consider in determining whether the use made of a work in any particular case is fair, and include:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for the value of the copyrighted work.

In the US a fair use determination is an ‘open-ended and context-sensitive inquiry’. This was the approach followed by the US Court of Appeals in April 2013 when deciding whether Appropriation Art could be permitted within the fair use doctrine.
The appeal was made by Richard Prince and his gallery dealer (Gagosian) challenging decisions made against them by a New York District Court in 2011, namely that a series of Prince’s paintings, ‘Canal Zone’, 2007-08, had violated copyright in 30 images made and published by French photographer Patrick Cariou (Artlaw AM326, AM347).

The basis of Prince and Gagosian’s appeal was that Prince’s work was ‘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 a 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.’

The Appeal Court agreed with appellants Prince and Gagosian in the case of 25 paintings (ie that they were undoubtedly transformative and did not violate copyright) and remitted the five remaining paintings to the original trial (District) court to decide whether Prince is entitled to a fair use defence – this time by applying a proper legal test that the Appeal Court laid down. The District Court’s legal error concerned Prince’s artistic intent. The Appeal Court judged that the District Court had based its conclusion (that Prince’s work was not transformative fair use) on Prince’s testimony that he was not ‘trying to create anything with a new meaning or a new message’. This was the wrong legal approach. The correct legal approach was ‘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 Appeal Court helpfully posted online images of all the works at issue, which readers may access. The five Prince works remitted back to the trial court for re-determination are listed online as: Graduation, Mediation, Canal Zone, 2008, Charlie Company, and Canal Zone, 2007.

Unlike courts in the UK, the judicial approach by US courts reflects their leaning towards fair use defences: they state that 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.’ The Appeal Court in the Prince case considered whether his work added something new to the original photographic images appropriated, and so transformed them:  for a use to be fair, it ‘must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.’

This appeal result in Prince’s favour has been welcomed by many as an enlightened judicial approach that supports the practice of appropriating other artists’ images – so long as courts judge, as a matter of law and fact, that a transformation of the original has taken place with visual expressions ‘fundamentally different from the source materials’.

But some are concerned that Prince’s appeal result decidedly outlaws the practice of Appropriation Art. Such concerns argue that if the Appeal Court’s legal transformation test was applied to Prince’s re-photographed and re-presented works of the 1980s (for example, the ‘Marlboro’ men series), those works would be judged to be non-transformative unfair uses because they were re-presentations of visually unchanged original images and not new visual expressions, and that 25 works were judged to be transformative only because they visually changed the source photographic images.

In August 2013 Cariou’s lawyers filed his appeal to the US Supreme Court against the Appeal Court’s April 2013 decisions. A hearing of this final appeal is not automatic: the court decides whether the filing raises sufficiently significant questions of law. It is hoped that the US Supreme Court hears the case and resolves the longstanding and thorny issue of transformative fair use, and in relation to all – not only visual – art forms.

© Henry Lydiate 2013

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.