Make copyright law less of a lottery

Publication Type: 
Other Writing
Publication Date: 
June 27, 2013

Cross-posted from The Art Newspaper

I was delighted when the Second Circuit Court of Appeals issued its long-awaited decision in favour of Richard Prince in April, finding that his use of Patrick Cariou’s photographs in 25 of his 30 “Canal Zone” paintings was a “fair use”. The decision upholds a crucial tradition in Modern art by confirming that an artist can use copyrighted images as raw material to create new works, even if the artist in question has nothing to say about the copyrighted images used.

As a lawyer who advises creators on fair use every day—my clients have included Shepard Fairey, who I represented in his lawsuit with Associated Press over the Obama Hope poster—I’ve seen first-hand the increasing need for clarity concerning how copyright law applies to this form of artistic expression. At long last a court has confirmed that using copyrighted images is transformative, and not infringing, where the artist’s expression and composition, presentation, scale, colour palette, and media are new and fundamentally different from the source materials.

As pleased as I was with the decision, I was crestfallen that it came too late to help another talented artist and former client, Sarah Morris. Not long before the Prince ruling, Morris settled a copyright lawsuit concerning similar questions about the right to use existing materials to create new expressive works of art.

Morris was sued for copyright infringement years after creating a number of paintings and drawings called the “Origami” series. These works are primarily boldly coloured, large-scale paintings on canvas, each of which incorporates some of the lines of an origami “crease pattern” which is used as a guide to create folding paper sculptures. Morris radically transformed these crease patterns into highly expressive original works of art. Her work had no effect on the market for the crease patterns.

This is precisely the kind of new creativity and expression the Copyright Act is intended to promote. Nevertheless, several origami crease pattern makers sued Morris for copyright infringement. She defended these claims and moved for summary judgment on her fair use defence.

Unfortunately when it considered the case in February this year, the district court had no interest in grappling with the fair use factors or applying existing precedent to these facts. In an extraordinary order on the fair use defence that was only two sentences long, the court claimed the existence of unidentified “factual disputes”, and recommended the case be decided by a jury. Faced with the extreme expense and uncertainty of such a trial, Morris settled the case.

Under the Second Circuit’s reasoning in the Cariou v. Prince case, Morris had every right to use origami crease patterns to create the “Origami” series without requesting permission or paying a licence fee as her expression and composition, presentation, scale, colour palette, and media are new and fundamentally different from the original materials.

And, like Prince, her transformative works had no effect on the market for the originals. If Morris had had the benefit of the Second Circuit’s definition and explanation of transformative use in this context, perhaps the origami plaintiffs would not have sued or perhaps she could have persuaded the trial court to dismiss their claims.

The lack of legal precedent confirming the right to create art this way is completely contrary to the realities and traditions of artistic expression; artists from Pablo Picasso to Andy Warhol have used existing imagery to create new meaning for more than a century.

The creativity of artists such as Morris and Prince provides us with imaginative works that offer new meaning and insights. We ought to be grateful they do so. But legal uncertainty creates real risk for artists when opportunistic copyright holders (and their lawyers) seek to control and be paid for every use of copyrighted works, no matter how small, unidentifiable or inconsequential.

Fair use is the bulwark against copyright holders squelching free expression. But it is often too unpredictable to rely upon. Without well-developed precedent, plaintiffs are emboldened to assert flimsy claims. Even for defendants prepared to stand up to weak infringement allegations, their success in asserting a fair use defence often feels like a roll of the dice, dependent on which judge hears their case. Defendants often settle or pay licence fees rather than face great uncertainty in court. Nevertheless, the Prince decision bolsters my hope that these uncertainties can be corrected and we can get to a place where this kind of creative expression is less endangered.

We have seen this evolution occur for documentarians, biographers and others who rely on fair use to recount history and accurately depict reality in creative works made for profit. Reliance on fair use in this context has become so well established that insurance companies are willing to insure such unlicensed uses of copyrighted material and, when challenged, creators are finding success in the courts.

Take, for example, the recent victory of the “Jersey Boys” musical’s producer, establishing that the use of a seven-second clip from “The Ed Sullivan Show” to mark a historical juncture in the career of the band the Four Seasons was non-infringing. The appellate court dismissed the case because the use was “undoubtedly fair” and ordered the plaintiffs to pay the producer’s attorneys’ fees.

We must educate, advise and enable artists to properly rely on fair use, and help defend them against bogus infringement allegations. Through education and experience, copyright holders will also learn that not all unauthorised uses are infringing. And we need more open-minded judges who don’t simply view any unlicenced use of copyrighted material as theft and who are willing to decide hard fair use cases and not force parties to settle. The work is far from finished, but Richard Prince’s victory is an important paving stone in this path to greater artistic freedom.