This article was originally written by Steven Seidenberg and published on the site Intellectual Property Watch. IP Watch requires you to create an account to read their CC BY-NC-ND licensed articles. This annoyed me, so I am reposting the article here.
The US Supreme Court yesterday let stand an important appellate court ruling on copyright law, giving a boost to artists who repurpose others’ works and to supporters of fair use rights. This decision, however, upset many copyright owners, who fear it will allow their works to be used without payment and without their consent.
The Supreme Court didn’t decide the case on its merits. Instead, the court simply refused to review the Second Circuit Court of Appeal’s decision in Cariou v. Prince.
The Second Circuit found that Patrick Cariou’s copyrights in his photographs were not infringed when artist Richard Prince substantially modified copies of the photos and presented them as works of art. Prince is a well-known “appropriation artist,” who often produces works by modifying and/or combining pieces of other artists’ works.
Prince’s artworks were not infringing, the Second Circuit ruled, because they were protected by the “fair use doctrine.” This doctrine allows anyone to freely use copyrighted works in a transformative fashion, such as for scholarship, criticism, parody and other purposes that do not interfere with exploitation of the copyrighted works. In this case, the court held, Prince’s artworks were so different from Cariou’s original photos that they did not diminish the market for Cariou’s photos:
“These twenty-five 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. Cariou’s black-and-white photographs were printed in a 9 1/2? x 12? book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.”
The court specifically rejected the notion 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.’” According to the Second Circuit, “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative.”
This interpretation of the law significantly expanded the scope of fair use and restricts the rights of copyright owners, according to some copyright experts. And some of these experts assert that the Second Circuit went too far. The Second Circuit’s ruling “directly contradicts [the] Supreme Court precedent” of Campbell v. Acuff-Rose Music, wrote Terry Hart, director of legal policy at the Copyright Alliance.
In Campbell, the Supreme Court held that 2 Live Crew’s rap song, “Pretty Woman,” could legally be considered a fair use of Roy Orbison’s famous song, “Oh, Pretty Woman.” The court found that the rap song could be a fair use parody of the Orbison song because the rap song “reasonably could be perceived as commenting on the original or criticizing it, to some degree.”
In other words, the Supreme Court’s 1994 ruling in Campbell said that a fair use parody must comment on or criticize the original work. Campbell, however, did address other types of fair use works. The Court’s opinion did not declare that all types of fair use works must comment on or criticize the works they are copying.
Prince’s artworks are not parodies. They are artworks created by transforming existing photos. The Supreme Court has never expressly stated that such non-parody, transformative works must comment on or criticise the original works in order to obtain fair use protection. Cariou thus may stretch the established boundaries of fair use, but the Second Circuit’s decision can still be reconciled with Supreme Court precedents.
Other copyright experts object to the Cariou ruling on another basis: The Second Circuit laid out no clear guidelines for when a work is sufficiently transformative to qualify for fair use. Instead, the court seemed to adopt a “we know it when we see it” approach, said Doug Kenyon, a partner in the law firm of Hunton & Williams LLP. “The problems with that approach are inherent uncertainty and inconsistent application of legal doctrines intended to balance carefully the valuable rights of copyright owners and users of copyrighted works.”
However, the scope of the fair use doctrine has always been fuzzy. Ambiguity in this area is nothing new. Cariou might have increased this ambiguity, but by increasing the availability the fair use doctrine, the ruling brings cheer to many artists – including appropriation artists like Prince and rappers who sample others’ music. Moreover, the decision is supported by many experts who think US copyright law has expanded too far and that it is time for fair use rights to be strengthened.