In a totally insane ruling, the Federal Appeals Court decided that, in the words of attorney Virginia Rutledge “…the law does not require that a new work of art comment on any of its source material to qualify as fair use…”.
Why is this a problem? It’s all about context.
The appeal concerned a huge case that I wrote at length about back in 2011 when it was raging: Richard Prince v. Patrick Cariou. Long story short (you can read the long form here), Cariou went to Jamaica and created a series of photographs that would be shown in a gallery. Richard Prince took 41 of his photographs and gave them the Perez-Hilton-treatment and then sold those appropriated/new pieces for upwards of $10 million dollars at his own gallery show. Cariou sued and won.
So what is Fair Use? From my previous piece:
Fair Use, while complicated and often stretched by lawyers to help protect their artist client’s (which they should), the jist of it is this: the new work that uses a sourced image must in some way comment on, relate to the historical context of, or critically refer back to the original work it borrows from. Other considerations, and one that generally takes precedent in the courtroom, is whether or not the new work creates a harmful environment for which the original is meant to profit in – meaning the new image cannot prevent or harm the original’s ability to make money. The reason this is important is because, really, courts have no interest in debating what is art and what is not (nor do we want them doing that) and deciding whether or not works can make money based on environment is a lot easier to argue and debate and gives a clear opportunity for resolution in a case.
However the new court decision has left out some major pieces of the Fair Use puzzle that opens, in my opinion, some dangerous doors.
NYU art law professor Amy Adler spoke with Art In America Magazine and said
“The court decided that artwork does not need to comment on previous work to qualify as fair use…Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work.”
Reasonably perceived by the audience. What does this mean?
It means that intent is out the window, and how your audience views the work is what matters. This is concerning because an audience may not be aware that the whole of the work isn’t the creation of the actual artist claiming ownership. This is problematic when the work isn’t actually transformitive from the original piece and may, in fact, be nearly 100% the original idea of someone else with very little alteration by the new artist, and there is no legal precedent anymore to ensure that the intent of the piece is to actually transform it into something new.
And as for intent, Prince has famously noted that he never even really gave a shit about Cariou’s work or it’s meaning, and therefore he never even meant to transform it to begin with. This argument was used against him, because in previous Fair use cases the intent of the artist was a large factor in whether or not the piece was actually changing the original work it borrowed from.
So is this terrible? Is this great?
I am not wholly against appropriating imagery in the creation of new art. I believe that collage, mixed media, and other visual arts that borrow from each other are valuable and often rely on being able to utilize images throughout pop culture to create their own works. I am not even always against not having a commentary on the original piece – if the work is transformative enough from the original, and the original work can not be harmed through the creation of the new work, I believe that should be allowed through Fair Use.
But in the context of this case, with these works, Prince barely (and I mean barely) altered the original images and sold them as if they were his inspired idea. These pieces were insulting on a variety of levels, but more so the idea that one can literally throw a thought bubble over a person’s head, and scratch out the eyes of another and that in itself makes the works wholly new, is depressing.
Not to mention it’s so fucking lazy, even for Prince. He has been able to borrow and create for decades, creating interesting pieces from images in pop culture that sometimes commented on the original works or time period, sometimes not. But at least most of his work wasn’t….this. I suppose my argument here is that he just didn’t do enough to transform the work, and in that, he failed to use Fair Use as a means of protection – even under these new standards!
I’m just really disappointed in this decision. With this case in particular, and these works in question, I feel the decision was just wrong. I worry innumerable young artists will see their imagery appropriated with little legal recourse, and emerging artists looking to borrow imagery have muddled, confusing guidelines on which to go by.
If Shepard Fairey can be (originally) fined for his Obama HOPE poster, a work that I believe wholly transformed and commented on the historical context of the original photograph, and this Prince series can pass the test of Fair Use, what the hell are artists supposed to make of that?
If all it takes is some scratching out the eyes and adding a taped-on key-tar, well, you think Forever21 and Urban Outfitters are jacking new artists work now? Wait until they get a whiff of this court decision.