Bummer! visual art fair use

In the U.S. world of copyright fair use, it is often difficult to predict how use of another’s work may haunt a client who incorporates that work without permission from the copyright owner. Without a doubt, the best practice is to remain abreast of court cases, especially for literary and visual arts, in all the federal appellate courts. One such case is Cariou v. Richard Prince et al [hereinafter ‘Cariou’ and ‘Prince’] in which the court concluded there was fair use of numerous copyrighted visual art works in their entirety.

As discussed in my previous articles, copyright fair use is not defined in the same manner as trademark and service mark fair use under U.S. federal law. There are several criteria in copyright law for determining whether unauthorized use of another’s works is properly characterized as fair use. One criterion is whether the unauthorized person’s contribution is sufficiently transformative of the original works that are incorporated. According to the law, to be sufficiently transformative this contribution must alter the expression, meaning or message of the original incorporated work.

In the current case, Cariou created numerous photographs of a tribe relatively isolated from western influences. He then published these photographs in a book which, however, did not enjoy a wide distribution. Thereafter Prince painted over Cariou’s photographs and produced numerous collages upon each painted over photograph. Prince then publicly displayed these collages exclusively as his own works. When Cariou sued for copyright infringement, Prince replied that his inclusion of the photographs was fair use. Because the photographs within Prince’s works were substantially altered and almost unrecognizable, the court concluded that most of the thirty contested photographs were sufficiently transformed to qualify as fair use. The court also found sufficient transformation, in part because Prince’s collages were provocative while the original photographs were serene portraits and landscapes.

The court next addressed whether the Prince’s works had a commercial or non-profit purpose. The court concluded that although Prince’s works were commercial, this factor was insignificant in view of the transformative nature of Prince’s visual art contributions to Cariou’s photographs. The court then addressed the effect of Prince’s collages upon the market for Cariou’s photographs. The court stated that whether Cariou’s photograph market was usurped depended upon (i) Prince’s target audiences (ii) the nature of Prince’s professional contacts and (iii) whether these persons were the same as those for Cariou’s original photographs. The court found no evidence that Cariou ever developed a market, use, license or secondary uses for his photographs that were similar to those of Prince. The court also concluded that the commercial success and distribution of Prince’s works depended upon an entirely different kind of collector from those of Cariou.

Finally, the court addressed the nature of the copyrighted work. The court observed that visual art works that are published, such as Cariou’s, are less vulnerable to the fair use defense of an unauthorized user. Nevertheless, the court concluded that although Cariou’s work was published and creative, this fact was of limited importance because of the strong transformative element in Prince’s collages. Finally, the court considered the amount and substantive nature of Cariou’s photographs that were used in relation to Cariou’s copyrighted photographs as a whole. On this point the court concluded that in twenty of his works, Prince added sufficiently creative and original content to the photographs so it did not matter that he incorporated an entire photograph into each collage.

© 2014 Adrienne B. Naumann
Ms. Naumann does not endorse, sponsor or post the advertisements at adriennebnaumann.wordpress.com.

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