Sunday, May 15, 2011

Copyright Law and Appropriation Art: Part 2

Continued from part 1 (14 may 2011)

Patrick Cariou v. Richard Prince
Patrick Cariou v. Richard Prince[i] is a recent case in which the glaring gaps present in Copyright Law (particularly pertaining to appropriation art) manifest themselves.  Richard Prince is a world renowned Appropriation artist.  His exhibitions have been shown all over the globe and his success in this domain is unquestionable. Patrick Cariou is a French photographer who put together a compilation of images he took of Rastafarians in their native Jamaica. Prince made use of Cariou’s photos in a collection of his own entitled ‘Canal Zone’.  Cariou sued Prince for copyright infringement and asked that all remaining copies of Princes work making use of Carious photos be destroyed (note: eight of the Prince paintings fetched a combined $10,480,000. No small sum.).

Prince never claimed that he didn’t use Cariou’s photos.  Unlike Koons, Prince did not claim his work to be a parody of Cariou’s work.  In fact, he said that his piece was not created with the original in mind at all. The irony of the situation is that this very truth (the fact that Prince was trying to distance himself from the original rather than copy it) that defeated Prince’s Fair Use defense. If he were “quoting” or “parodying” the original work, a Fair Use defense may conceivably be mounted. 

In the decision, Prince is quoted as saying that he doesn’t create art with a specific goal or object in mind.  This testimony, unwittingly, was the torpedo that sunk Prince’s Fair use defense.  The sheer irony is uncanny, the work was “too different” to benefit from Fair Use but not “different enough” to be considered sufficiently transformative so as to avoid a claim of infringement.

Fair Use/Fair Dealing
The Fair Use Doctrine contained in 17 U.S.C §107 is based on a four factor test: 1) examination of the purpose and character of the dealing (specifically it’s commercial or non-commercial nature; 2) The nature of the source work; 3) The amount of the use (how much of the original was used in the new work); and 4) The effects of the use on the original work.

In the Cariou case, Prince’s Fair Use defense fell because of factors 1) and 4).  As previously mentioned, the judge said that Prince’s work was “too different” to constitute a fair dealing.  He argues that all the examples of fair use given in the preamble of §107 have the original work at their core (news reporting, criticism, parody etc. are all related to the original work being reported on, criticized or parodied). This can be seen as a rather narrow reading of the first factor.  Unlike the Canadian Fair Dealing provision which recites the exhaustive list of dealings that are considered fair, §107 is fashioned to be open ended.  It is for that very purpose that the words “such as” are inserted before the list of uses in the preamble of the section.

The decision the judge made with regards to factor 4) is substantially less clear cut.  In the facts of the case, Cariou tried to sell his original work at a gallery.  Upon hearing about the Prince exhibit, the gallery owner decided not to contract with Cariou saying that the they (the gallery) didn’t want to be seen as leeching off the success of the famous artist (when ironically the original work belonged to Cariou). 

The Judge interpreted this as a negative economic effect on the original work; a seemingly logical interpretation.  However, if (as professor Silbey suggests[ii]) one examines the question more closely, one may conclude differently.

Patrick Cariou sells photographs for thousands of dollars.  Richard Prince sells his “paintings” for millions of dollars.  It would stand to reason that Cariou and Prince have different clientèle with different interests (and budgets).  The argument can even be made that the use of Cariou’s relatively obscure photos in Prince’s wildly popular artwork amounts to a net benefit for Cariou.  Transposing the scenario to a different context, if a famous musical artist did a remix of my obscure song, most wouldn’t hesitate in saying that I obtained a net benefit by being associated with the artist (moral rights implications aside).
The Court even addresses the hypothetical situation where an artist renounces his will to profit from the original work. The ruling tells us that real or intended marketing effort on the part of the original artist is irrelevant under fair use analysis element 4.  Even an artist that says they are morally opposed to profiting off their artwork is entitled to change their mind. 

Unfortunately for Prince, had the litigation taken place north of the border, he wouldn’t have faired any better.  The Canadian Copyright Act doesn’t contain a statutory test for Fair Dealing.  Instead, Canadian courts rely on a landmark decision rendered in 2003 known as the CCH case.[iii]

In this decision, the court gives a non-exhaustive list of factors to examine to determine if a dealing is fair or not.  The four factors of the American statue are included in the list of considerations (adding the nature of the original work and alternatives to the dealing).

What would prove fatal to Prince is the fact that in Canada, the list of Fair Dealings is an exhaustive list. That is to say that if the dealing is not for private study, research, criticism, review or news reporting, the dealing is automatically ineligible for protection under the statute.

            It is hard to argue that there should be no protection or rights associated with an original work used or appropriated in a new work. Canada’s now defunct Bill C-32 proposed a novel way to allow the use of copyrighted works in the creation of non-commercial “user generated content”.  Coined the “YouTube exception”, the disposition would make legal uses of copyrighted works so long as the use complied with a set of criteria (the most important of which being that the new work be non-commercial in nature).

            It will be interesting to see if Canada re-adopts the disposition in a new Bill should the newly elected government be willing.  It will be equally exciting to see if other countries such as the United States decide to enact similar legislation. 

            Legal delay and legal uncertainty are normal phenomena in complex legal systems like our own.  That being said, Appropriation Art has been around for centuries and shows no sign of fading away despite the rulings of certain New York judges. Governments can either react to this, or risk alienating a perfectly valid and well practiced method of artistic creation that seems to be on the rise rather than decline.

[i] 08 Civ. 11327 (DAB)
[ii]  See podcast on the Patrick Cariou v. Richard Prince case here: where professor Silbey mentions the origins of appropriation art.
[iii] [2004] 1 S.C.R. 339, 2004 SCC 13, 236 D.L.R. (4th) 395, 30 C.P.R.

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