Fair Use WIthout Paying Homage

Chinese art students are taught to follow the practice of lin mo, imitating the masters out of reverence for the past. As a result, contemporary art in China often pays homage to and closely resembles art created centuries ago. Embodying a centuries-old tradition, prominent Chinese artists, such as Zhang Daqian (1899–1983), have valued and sought to emulate the style, method and even the personality of venerated predecessors when depicting beautiful objects in a traditional manner. Conversely, in the United States, the contemporary practice of “appropriation art,” involving one artist’s borrowing, without permission, of another artist’s copyrighted work, seems to run less risk of judicial disapproval if the appropriator significantly alters the original, not in order to pay homage to it, but to “transform” it into something new and different. Appropriation has long played a major role in the history of the arts, sometimes with obvious sources, such as Andy Warhol’s Brillo boxes, and sometimes with sources that are more obscure. Increasingly, courts in the US appear to view copyrighted artworks, especially photographs, as mere “raw materials,” which may freely be appropriated and incorporated into new works of art, provided only that the new works may reasonably be perceived as aesthetically different from the original works.

The high-water mark of this trend, echoing today’s digital remix culture, is the majority opinion of the Second Circuit Court of Appeals in the long-running Cariou v. Prince (2009–13), delivered in April last year. In 2007–08, Richard Prince, a well-known American appropriation artist, exhibited 30 collaged paintings created by appropriating and incorporating numerous copyrighted photographs that French photographer Patrick Cariou had taken over six years in Jamaica and published in the book Yes Rasta (2000). Cariou’s black-and-white photos included portraits of Rastafarians and Jamaican landscapes. Prince’s paintings were large, incorporated color and paint, and juxtaposed Cariou’s images with other appropriated materials, including pornographic snapshots and guitars. 

Disregarding Prince’s explanation of why he appropriated Cariou’s work, the Second Circuit majority held that, based solely on judicial observation, 25 of Prince’s 30 paintings were “transformative” and, therefore, could be deemed to be fair use because, comparing the paintings and source photographs “side-by-side,” the paintings manifested a different artistic sensibility than the source photographs. Because those paintings made fair use of Cariou’s photographs, they did not infringe on Cariou’s copyright, thus precluding legal claims by Cariou. As the majority opinion stated: “These 25 of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.” The 25 paintings had “a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.”

In the view of the majority, the five remaining paintings did 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.” The fair-use analysis of those five paintings was remanded to the lower court to determine whether the “relatively minimal alterations” of Cariou’s source photographs in those works were transformative and, therefore, fair use, or whether they infringed on Cariou’s copyrights. One of the three judges on the panel disagreed with the majority’s approach, arguing that Prince’s testimony should not be disregarded and that the Second Circuit, as an appellate court, should not “limit our inquiry to our own artistic perceptions of the original and secondary works.” Yet that is just what the majority did when holding that fair use should be determined solely on the basis of a side-by-side visual comparison, by judges rather than by a jury, of the original and secondary works in order to determine whether the secondary work appeared to be “transformative.” 

Although the Supreme Court, in its discretion, decided not to take Cariou’s appeal from the Second Circuit’s decision, it is likely that the Second Circuit’s standard (reminiscent of the “I know it when I see it” dictum made famous in Justice Stewart’s concurring opinion in a landmark obscenity case) will be scrutinized by the high court in some subsequent case for several reasons. 

First, basing a fair-use defense to possible copyright infringement solely on what randomly selected appellate judges may see when comparing the works is inherently subjective, depends on the identity of the randomly selected judge(s) hearing the case, and thus lends itself to inconsistent, unpredictable and incoherent results. Future courts, including the trial court to which the case was remanded, will not have any workable standard to employ.

Second, focusing exclusively on what is reasonably perceivable to an audience untrained in the arts and disregarding the explanation of the appropriator eliminates the Supreme Court’s requirement in Campbell v. Acuff-Rose Music, Inc. (1994) that there be a persuasive “justification for the particular copying done,” which itself may be a matter of aesthetics. 

Finally, the analysis in Cariou uses “transformative” as a conclusory buzzword, eliminating the important exclusive right of a copyright owner to make or authorize the making of derivative works based on the copyrighted work. Critically, under the Copyright Act, a derivative work, by definition, is a secondary work in which the original is “recast, transformed, or adapted.” Immunizing from copyright infringement any work that “transforms” an original (the very definition of a derivative work) renders superfluous this important right.

Far from encouraging the imitation of existing artwork as a way of paying homage to the past, recent developments in US copyright law, and particularly in the application of the fair-use doctrine, reward the appropriation, with or without any justification, of other artists’ creative works, treating them as mere raw materials that may freely be incorporated into new works as long as the resulting works significantly alter the originals. Because, according to the law, there does not have to be any reason for the appropriation of the particular original work, other than a desire to transform it into a new aesthetic expression, this recent trend threatens to remove any limit to the fair-use doctrine, disincentivizing the creation of original art, especially photography—which can so easily be appropriated, often without detection.