What if God Exercised Copyright?

Imagine if God exercised copyright over images depicted in works by the old masters, and He refused to grant divine consent to artists inspired by the natural environment or the image of man. Iconic works would be erased from history, unless, of course, such works fell under the “fair use” exception to copyright in the United States, in which case the artists would arguably have a defense.

God is many things—but He is not litigious. The same cannot be said of humankind, nor its alter ego: corporations that exercise copyright over much of the mass media imagery, logos and photographs that bombard our senses, mediate our reality and infiltrate our psyches.

This places artists in our postindustrial, postmodern, commoditized world in a challenging position. How do they legally “appropriate” contextually relevant images when those referential points are copyright-protected? And conversely, how do they protect their works, readily extractable from the internet, from being appropriated? I provide some guidance below. 

First, let me outline the legal framework for “copyright.” What copyright protects is not an idea per se but its physical manifestation, by conferring upon the creator and subsequent copyright owner(s) a monopoly over the work regarding its reproduction, distribution and display for 70 years after the creator’s death. The objective is to incentivize and protect intellectual labor.

However, excessively broad copyright protection can impede copyright’s very purpose, a concern that led to the codification of the “fair use” exception in the Copyright Act of 1976. At the heart of this exception is the question of whether the new work, to the reasonable observer, is “transformative.” Does the new work transform the perspective, meaning and/or purpose of how the copyrighted material is to be perceived, thereby creating “new aesthetics, new insights and understandings” (as in Blanch v. Koons, 467 F.3d 244) or “new expression, meaning or message” (as in Cariou v. Prince, 714 F.3d 694)?

Although art experts are likely called upon to provide their professional opinion on such matters, the above questions are ultimately decided by judges, notwithstanding the following observation from Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903): “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” Furthermore, ideas of what fair use or transformation constitutes will change over time, as our understanding and recognition of particular art practices deepen.

In addition to the overarching “transformation” test, courts weigh a number of interrelated legislated factors when considering “fair use.” As a guide for artists wishing to rely on the exception, the following has been distilled from the decided cases: first, don’t make copies that could serve as a replacement for the original work; second, when you are parodying another’s work, don’t merely mimic the original but also critically comment on the work—for example, using the work to comment on society itself does not constitute a parody; and third, use the appropriated forms as part of a larger body of reconceptualized work, as the portion appropriated must be reasonable in relation to the purpose of the copying.

So what do you do when a copyright pirate has breached your rights? Well, litigation is a costly, complex and uncertain venture. From the start of proceedings to judgment, fees can easily reach hundreds of thousands of US dollars and can even spiral into the millions. This sets the backdrop for any copyright claim.

The first step is to have a lawyer send a severe copyright infringement notice alleging breach and demanding various remedies. At this early stage, express a willingness to discuss appropriate licensing fees, but make it clear that if no agreement is reached you’ll be seeking damages, profits earned by the infringer, confiscation and/or destruction of the infringing works.

Unless the infringer believes that you are sufficiently aggrieved to initiate court proceedings to enforce your rights, despite the merits of your case, a typical response is to either ignore letters of demand or deny asserted allegations. Accusations and robust denials generally go back and forth until proceedings are issued, thereby forcing the parties to focus on either reaching a negotiated settlement or face the uncertainty of a court judgment and exposure to the other party’s legal costs if they lose. Pretrial hearings often drag on for years and they wear people out, so where one side has a sound, arguable case, there is very good reason for the parties to settle early!

Let’s turn to some real-life examples. Photographers tend to fare well when their works are appropriated. For instance, Patricia Caulfield, whose photograph of flowers was utilized by Andy Warhol in a series of paintings and prints, reached an out-of-court settlement in which she was paid USD 6,000 and the right to share royalties earned by Warhol.

Similarly, in the late 1970s, when Robert Rauschenberg was sued by photographer Morton Beebe for using one of Beebe’s images in print, the former also settled out of court, agreeing to provide the latter with a copy of an infringing work (which was then used to pay his lawyers) plus the right to have a notice printed beside the work that the image was a photograph by Beebe as recompense.

More recently, in 2009 Richard Prince was sued by Patrick Cariou for using photographs from Cariou’s 2000 photobook Yes Rasta. Prince altered, distorted and incorporated the images, to varying degrees, in his series of collage paintings “Canal Zone” (2008). On appeal, in April 2013, it was held that 25 of the 30 works were “fair use” with the remaining 5 works to be remanded to the lower court for reconsideration based on the proper standard. Then in March 2014, before that hearing, Cariou settled with Prince.

The cases illustrate that pursuing a copyright infringement claim is a risky, tiresome endeavor likely to exceed seven days—perhaps the reason why God has not made any such claims.