So What The Hell Is "Fair Use" Anyways?...Patrick Cariou v. Richard Prince...The Saga Continues...

The decision is out: 25 of the 30 artworks by Richard Prince make fair use of Patrick Cariou's photographs. The remaining 5 works were remanded to the District Court to apply the proper legal standard and make a determination whether they also make fair use of Cariou's photos. Such is last month's ruling by the United States Court of Appeals for the Second Circuit.

To recap the debate: internationally renown contemporary artist, Richard Prince, appropriated Cariou's photographs of Rastafarian people (without Cariou's permission) in transforming the photographs into artworks of a different feeling. The District Court (lower court) found Prince (and Gagosian Gallery) liable for infringement of Cariou's copyright interests.  The following image, for example, shows a photograph on the left by Cariou; on the right, Prince's appropriation of it, a work which sold for about a million dollars:

 
To put it into perspective, imagine that you took a photo of your friend, the man on the left. Then, without your permission (and without any compensation of course), someone used that photo and transformed it into what is depicted on the right, changed the size, and sold it for a million dollars. Copyright infringement or fair use?

Of significance is that the above example is one of the five artworks in which the Circuit Court did not make a determination because I suppose it was too much of a close call. All of the artworks at issue can be seen here: http://www.ca2.uscourts.gov/11-1197apx.htm. And the Circuit Court's opinion can be found here: http://blogs.library.duke.edu/scholcomm/files/2013/04/138475739-Cariou-v-Prince-2nd-Circ.pdf

Here are a couple examples of Prince's pieces found to be fair use (the appropriated photographs of women are not Cariou's, and I'm not sure whose they are -- if they're yours maybe you should join this lawsuit):

Whose rights should prevail? I foresee that the Circuit Court's holding is not final, and the case will now (in due time) be heard by the United States Supreme Court.

The purpose of copyright law is "[t]o promote the Progress of Science and useful Arts . . . ." U.S. Const., Art. I, § 8, cl. 8. And as the Circuit Court noted, "[C]opyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public...[The] fair use doctrine mediates between the property rights copyright law establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them -- or ourselves by reference to the works of others, which must be protected up to a point." (A more incontrovertible example of fair use is me posting images of Prince's work on this blog.)

The concern I have with the Circuit Court's ruling, however, is that the judges themselves concluded what was fair use versus what could be copyright infringement. The Circuit Court heard the case on a review of a summary judgment motion. In the law, a judge may grant summary judgment when there are no disputes of material fact but only disputes regarding issues of law. If there are triable issues of fact (such as a dispute whether a traffic light was red or green), then it is up to a jury to decide.  

In this case, the judges are aware of this, but they state: "Although fair use is a mixed question of law and fact, this court has on numerous occasions resolved fair use determinations at the summary judgment stage where . . . there are no genuine issues of material fact. This case lends itself to that approach.” 

What the Court fails to explain is how "this case lends itself to that approach." While I don't necessarily disagree with the Court's conclusions, the way I see it, this entire case is a dispute of fact. This fair use inquiry rests entirely on aesthetic perceptions, artistic opinion and expertise, conceptual value of the works at issue, and artistic and scientific evaluations of how the copyrighted works were transformed, while relying on testimony of witnesses and experts -- all issues of fact for a jury to decide! Isn't that why there is such a thing as juries? 

One outstanding part of the Circuit Court's opinion, however, is its rejection of the District Court's order that the defendants (Prince, Lawrence Gagosian, and Gagosian Gallery) deliver Prince's artworks to Cariou for their destruction. Even Cariou agreed that destruction of Prince's work would be against the public interest. Good! The very nature of this dispute has made all of the artworks museum-quality stuff.

(Notably, it appears several museums, including the Art Institute of Chicago, The Metropolitan Museum of Art, MoMA, and LACMA, filed amicus briefs offering information as nonparties to the case because of their serious interest in the outcome.)

What remains unfortunate, especially for us artists interested in knowing how far our copyright extends, or how much we may appropriate from others, is that the line remains a giant haze: competent courts, such as the federal district court and circuit court in New York, can completely disagree.

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)

Art As Fraud, New Work, and the Richard Prince Copyright Infringment Lawsuit

I recently came upon a random billboard in Los Angeles which caught my attention and had me thinking about what art is:

What does it mean that art is as fugitive as fraud? Is it, for example, when we hear that a Picasso painting that he probably completed in a day or two sold for over $50 million at auction? Is it a reference to the billionaires who create art icons to use as status symbols?

My latest painting is depicted below. The computer screen hides the painting's real texture and size. The painting cannot be replicated digitally. And the color calibration of your monitor varies from computer to computer, so the colors you see may not be precisely what the painting is.

But I strive to make every painting unique in its own way, using only high end materials. They are not copies, and a print is inherently different from the original. The original is a product of tension, torment, conflict, hardship, study, cognition, confusion, understanding, love, empathy, and passion, completed over the course of about six to eight weeks, sometimes less, sometimes more. 

Where Eagles Go To Die, 45" x 38", oil on canvas, 2012. The current price is $1,790.

At what point does art become fraudulent?

Richard Prince is a contemporary artist, internationally renown, with a name that almost always has its place in contemporary art books. He's what is called an appropriation artist, using the work of others, adding a new twist, and putting a price tag of a million dollars. The following piece, for example, shows an original photograph on the left of a Rastafarian man, taken by photographer Patrick Cariou. On the right, however, is Richard Prince's appropriation of it, a work of art which sold for about $1 million! 

  
Yes, $1 million, according to testimony by Prince after being sued by Patrick Cariou for copyright infringement. Cariou has copyright ownership in the photo on the left which basically means he owns the exclusive right to reproduce the photo, including the rights to its dissemination, display, and to create derivative works from it. Yet Cariou earned practically nothing for this photograph compared to the fortune earned by Prince in the appropriated artwork on the right.

Prince never received any permission from Cariou to use the photo, but his defense is that the Fair Use exception applies.  

The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Copyright law recognizes that artists are often influenced by others and use what others have created in order to build on it to create something original. An example is with Eric Clapton or Led Zeppelin appropriating rhythms from American delta blues to create new songs. Public policy views giving artists the freedom to build upon what others have created as progress for society, and therefore the Fair Use exception exists in copyright law. But there are requirements which must be met:

Without turning this post into a memorandum of points and authorities, in determining whether the use made of a work in any particular case is a fair use, four main factors are considered:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: The central purpose of the inquiry into the first factor is whether the new work merely supersedes the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. 

(2) The nature of the copyrighted work: Basically, to consider whether the protected work is of the creative or instructive type -- a distinction that has emerged in the decisions evaluating the second factor is whether the work is expressive or creative, such as a work of fiction, or more factual, with a greater leeway being allowed to a claim of fair use where the work is factual or informational.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: This inquiry focuses on whether the extent of the copying is consistent with or more than necessary to further the purpose and character of the use.

(4) The effect of the use upon the potential market for or value of the copyrighted work: The inquiry must take account not only of harm to the original but also of harm to the market for derivative works. Harm to the market for derivatives weighs against a finding of fair use because the licensing of derivatives is an important economic incentive to the creation of originals.

Applying the factors of Fair Use to Prince’s appropriation of Cariou’s work I will leave to the Courts (the Cariou v. Prince lawsuit has not yet resolved and remains on appeal). But a glance at the art reveals much: Cariou’s entire picture was used by Prince, as Prince added a few dabs of blue paint and a guitar.

Dear Reader, what do you think? Has Richard Prince defrauded the art world? Should he be entitled to walk away with the millions of dollars he earned appropriating Cariou's photos or should Cariou be entitled to Prince's earnings?