Appropriation Art: Fair Use or Unfair Copying?
Reviewed by Kyu Hee Chu
Is there such a thing as truly original art? Most people believe that there really isn’t! This is because every artist is influenced by something in his surroundings, which the artist generally borrows, copies or even uses when working on a piece of art.
However, some artists have taken this even further by really using other artists’ creations or just mere everyday things for their new creations. This is known as appropriation art. This type of art refers to the more or less direct “taking over” into a work of art a real object or even an existing work of art. The purpose of the “taking over” is to give the audience the opportunity to recognize the original work, and also to see such work from another perspective and with a different meaning or message than that of the original work.
This practice is dated back to pieces authored by Picasso, such as his collage of 1912 Guitar, Newspaper, Glass, and Bottle, where he used different images of newspapers to create forms. Later on, Marcel Duchamp referred to this movement as Readymades, and became well known after presenting his popular piece Fountain, where he placed a common urinal and sign it “R.Mutt.” More modern takes on this can be seen in Andy Warhol’s “Campbell Soup” images, where he turned a simple label into one of the most praised pieces of modern art.
Regardless of its popularity, many have questioned the extent to which this “borrowing” can be tolerated, and the extent at which this form of art can turn into copyright infringement under copyright laws. This debate has once again risen to prominence thanks to a suit brought by French photographer Patrick Cariou against the well-known appropriation artist Richard Prince, which arises out of Prince’s use of Cariou’s photographs in a collection of paintings.
Cariou v. Prince
Patrick Cariou filed suit against Richard Prince in December 2008 for copyright infringement, after Prince appropriated certain photographs for his “Canal Zone” collages collection. These photographs were published by Cariou in 2000 in the book Yes Rasta, where he showed photographs of Rastafarians and landscapes of Jamaica.
Prince claimed that his work was protected under the fair use doctrine set forth in Section 107 of the Copyright Act, which allows a person to use copyrighted materials for certain purposes, such as commentary, criticism, news reporting, and scholarship. However, the Southern District of New York ruled in favor of Cariou stating that Prince’s work included significant pieces of Cariou’s work, and thus was not entitled to the fair use defense. When discussing the elements of a fair use defense, the Court referred to the purpose and character of the use, focusing on the “transformative use” requirement, indicating that there must be a comment on the historical context, or a critique to the original work. In consequence, the court concluded that Prince had no interest in the original meaning set by Cariou in his photographs, but that he merely wanted to reproduce them to send his own message, and thus found that there was no transformative content in his work.
The controversy behind this argument is the fact that it demands a higher standard for a finding of transformative use than the one previously used by the Second Circuit in Blanch v. Koons. In Blanch, the court stated that when a copyrighted work is used as “raw material” to create new aesthetics, new information, and new context, this was considered as transformative use.
Moreover, this new requirement for comment will demand from courts that they evaluate each work’s content, and make an artistic judgment as to the message they are trying to convey, for which of course, courts are not suited or equipped to make.
Furthermore, the court analyzed the other requirements for a finding of fair use, referring to the commerciality of Prince’s work, the presence of bad faith on behalf of the defendants, the nature of the copyrighted work, the amount of substantiality of the portion used, and the effect on the market for the value of the copyrighted work, ruling that all of these factors weighed against a finding of fair use.
In addition, not only did the court hold Prince liable for the use of Cariou’s copyrighted work, but the court went further in holding that the Gagosian Gallery was contributorily and vicariously liable, given the benefit obtained from Prince’s reputation as an appropriation artist that did not respect “the constricts of copyright law.”
Another controversial part of this decision is the fact that the court granted the plaintiff’s petition for summary judgment and enjoined the defendants from displaying, reproducing, selling, or distributing the photographs, and required Prince to deliver the works of art for impounding, destruction, or any other disposition, as the plaintiff determined. In addition, the defendants had to notify all current and future owners of Prince’s pieces that the paintings were unlawfully produced and could not be lawfully displayed.
This decision will probably be appealed. However, it is very possible that appropriation artists, as well as art galleries, are concerned about how this will really affect the current stability obtained after Blanch v. Koons. This adds to the fact that appropriation has always been considered to be in a thin line between fair use and infringing derivative use.
In this situation, many suggest the use of licenses from the original artist as a solution. Nevertheless, this has been much debated, not just because of the possibility of not obtaining a license, given the high price of a license or the negative response from the copyright holder, but also because of the restrictions and limitations this places on the artist and his or her freedom of expression.
On the other hand, a clear, predictable and reliable fair use doctrine may be the best way to assist emerging artists in this field, especially a fair use doctrine that does not rely on the artist appreciation of the court.
 Copyright Act 1976, §107, Limitations on Exclusive Rights: Fair Use
 Carious v. Prince, No. 08 Civ. 11327 (DAB), 2011 U.S. Dist. LEXIS 29070 (S.D.N.Y. Mar. 18, 2011)