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.

Conclusion

            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.

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[i] 08 Civ. 11327 (DAB)

[ii]  See podcast on the Patrick Cariou v. Richard Prince case here: http://legaltalknetwork.com/podcasts/suffolk-law/2011/03/patrick-cariou-v-richard-prince/ 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.

Copyright Law and Appropriation Art: Part 1

Visit soon for part 2 of this piece 

Art forms change.  Entire systems, styles and genres have come and gone, spotting the annals of history with new and old methods of creating art.  Traditionally, law has had a certain trouble keeping up with the avant-garde.  This is attributable to the phenomena of legal delay and legal uncertainty in dealing with new art forms and types of creations.  An excellent example of this is the manner in which American (and to a lesser extent Canadian) copyright law treat Appropriation Art.

Appropriation Art, in its broadest sense can be defined as “the use of borrowed elements in the creation of a new work”.[i]  Modern examples of Appropriation Art can be found in various artistic domains.  Some say that the 1970’s Appropriation Art movement (most famously headed by artists like Andy Warhol) marked the beginning of this style.  However, Professor Jessica Silbey of Suffolk University Law School suggests that some art experts point as far back as Leonardo Da Vinci for examples of Appropriation Art (Da Vinci used scientific drawings of human anatomy in his artistic expression).[ii]

One of the most common places to find Appropriation Art today is the internet (more specifically YouTube).  The advent of video and musical mash-ups and remixes has taken us well beyond Warhol’s “Campbell’s Tomato Soup”.  For example, musical artist GirlTalk uses snippets of dozens of existing music tracks to create a new expressive work that is all his own. Lovers of Japanese Anime often engage in an art form known as AMV (Anime Music Video) where they meticulously splice clips from their favorite shows together with music to create a form of homage or tribute.

Jefferson’s view

To some people, the appropriation of other artists’ works in simple theft.  After all, if a person takes my property and uses it himself without permission, it is rather intuitive to conclude that he is guilty of an offense.  Unfortunately this view does not consider the original context in which intellectual property rights were created. Thomas Jefferson famously wrote: 

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.”[iii]

            This passage tells us that, far from natural, intellectual property rights are a creation of the government.  They are a legal fiction fashioned for the purpose of stimulating innovation and growth in a culture where people often require incentives and guarantees in order to create. This may sound bizarre to some; in reality, most people will opt not to create if they know that, once divulged, their creations can be mimicked and copied with no possible recourse.  It is for that very reason that Jefferson saw the value in intellectual property rights.  However, he goes on to say that:

“He who receives an idea from me, receives instruction him-self without lessening mine; as he who lights his taper at mine, receives light with-out darkening me.”[iv]

  

Jefferson obviously recognizes that “intellectual property” and “real property” are different in certain key respects. Applying this concept to Appropriation Art, using your source material in the creation of my new work does not necessarily disadvantage you or your original material.  In fact, sometimes such an appropriation by a well known or famous person may have substantially positive effects on the original work or creator. On the contrary, if I take the siding off of your house to construct a new house for myself, I am clearly stealing and in so doing disadvantaging you by appropriating something you own away from you and to myself.   

  Jefferson viewed monopoly in general as evil.  He saw the way British monopolies had the effect of centralizing wealth in the hands of a powerful few to the detriment of the people and the culture as a whole. Conflictingly, Jefferson recognized that artists must be protected if they are to be motivated to create new art.  Copyright, therefore, is a “necessary evil” instrumental in the proportion of what is good- Creation and innovation.

The Copy “right” and “derivative works”

Copyright law in Canada[v] and the U.S[vi] includes the exclusive right to reproduce, distribute, license and perform a work.  It also confers the right to create or license “derivative works”.  The U.S Copyright law defines derivative work as:

“ [A] work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.”[vii]

No definition for the term derivative work is given in the Canadian copyright act.  Nevertheless, the American definition seems to fit quite nicely into the Canadian context as well. One Canadian case[viii] even interpreted translation to include the translation of a computer program from one coding language to another.

The rights an author has in derivatives works was originally conceived so that no other person could adapt an artist’s work into another medium, format or language and call it their own.  This, by all accounts, seems rather fair.  After all, if I write a book, why should someone be able to go make a film out of it without licensing the right to do so (from me)? That being said, the concept of the right to derivative works seemingly neglects to account for the entire style that is Appropriation Art.  This style (or perhaps more accurately method considering it spans across several art forms and periods) is not expressly assessed in either American or Canadian Copyright legislation.

Judicial interpretation

Judges have a tendency to consider anything that makes use of previously existing art in any way a derivative work.  In Canada, constructing a building form a drawing can be considered copyright infringement.[ix]  Whether or not a human can perceive the use of the original in the new work is inconsequential.[x]  The Supreme Court of Canada ruled that translating the coding of computer software from one programming language to another constitutes a derivative work in the sense of the Copyright Act. This is also true in American jurisprudence[xi] It seems that judges are highly preoccupied with the author’s right without lending too much analysis of future implications the ruling may have on our cultural growth.  In the words of Professor David Vaver:

“In deciding issues of Infringement, especially in an era of high experimentation with digital technology, courts must consider not only the parties’ immediate interest but also how any decision may affect future artistic behavior”[xii]

Vaver is concerned with judges losing cite of Jefferson’s warning.  Copyright is an economic right to be sure.  However, to neglect the effects of a decision on future artistic creation is to ignore the very ethos that lies behind any intellectual property statute- The promotion of progress.

Though Canadian jurisprudence on Appropriation Art and derivative works is thin at best, American tribunals have had the opportunity to weigh in on the matter.  In Rogers v. Koons[xiii], the court rejected a famous artists fair use defense (based on parody) when he used a photo to create a sculpture.  The sculpture had nothing to do with the original photo itself.  There was nothing derivative in the work at all except for the use of the raw material.  The court rejected the parody defense for exactly that reason.   Had the sculpture been a critique or parody of the original photo (making it a derivative work) it would have been protected under the Fair Use doctrine.  However, because the artist transformed the old work into something new and creative that had absolutely no artistic connection to the old work, the artist was found liable for copyright infringement. A similar case was tried in 2008 in the Southern district of New York. 

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[i] http://www.tate.org.uk/collections/glossary/definition.jsp?entryId=23

[ii] See podcast on the Patrick Cariou v. Richard Prince case here: http://legaltalknetwork.com/podcasts/suffolk-law/2011/03/patrick-cariou-v-richard-prince/ where professor Silbey mentions the origins of appropriation art.

[iii] Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in

The Writings of  Thomas Jefferson

, ed. Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Association of the United States, 1907), vol. XIII

[iv] Ibid.

[v] R.S.C., 1985, c. C-42 §3

[vi] 17 USC §106

[vii] 17 USC §101

[viii] Prism Hospital Software Inc. v. Hospital Medical Records Institute (1994), 57 C.P.R. (3d) 129 at 278 (B.C.S.C.)

[ix] King Feature Syndicate Inc. v. O. & M. Kleeman Ltd., [1941] A.C 417 (H.L)

[x] Apple ComputersInc. V. Mackintosh Computers Ltd., [1990] 2 S.C.R. 209

[xi] Phillips v. Kidsoft L.L.C, 52 U.S.P.Q.2d 1102 (D.C. Md. 1999)

[xii] VAVER D, Copyright Law, Irwin Law, 2000, p. 125

[xiii] 960 F.2d 301