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Second only to gallery fraud, nothing
engenders more publicity in the art world than a dispute over the ownership of
big-money modern art. The recent lawsuit between French photographer Robert
Cariou and the American artist Richard Prince puts the age-old tension between
artistic integrity, modernism and money on full display.
Working in the well-established Pop
tradition of reference and borrowing, Prince appropriated images from Cariou’s
book of art photographs, Yes Rasta,
for a series of his own works. At issue was the question of whether or not such
uses were a “fair use” under copyright law or merely richly embroidered
investment grade piracy distributed by Gagosian, a well-known gallery.
For artists and designers, this is a
question that has tremendous professional resonance. Artists and designers are
the creators of culture and therefore the use—and misuse—of their works has the
power to alter the creative dialectic we call “art and design.”
In March 2011, the lower court
determined that Prince had infringed Cariou’s copyright and ordered the
transfer of Prince’s paintings for destruction. Since Prince’s works have
cultural resonance and are highly valued by collectors, their destruction would
have resulted in the loss of millions of dollars to both Prince and Gagosian;
an appeal was immediately filed.
The Prince case is important because
it considers the question of whether the use of one artist’s work by another
artist can ever be justified. It
also demonstrates how the doctrine
of fair use is applied when art and copyright law are in dissonance. As a
technical matter, the case would ultimately be decided on whether or not the
goals embodied in the fair use defense were understood and applied correctly by
the lower court. As a real-world matter, it sought to balance the following
issues: Where does creativity begin and end, and what is the scope of creativity
in an era in which borrowing and reference are frequently avatars of
Underscoring the importance of this
decision, no fewer than 13 parties, including Google, submitted friends of the
court briefs to the Court of Appeals in support of one side or the other. After
reading the briefs of the lawyers and listening to the oral arguments, the Second Circuit Court of Appeals in New York City determined—on
April 25, 2013—that the lower court had erred in its application of legal
theory as it related to the copyright doctrine of fair use and reversed the
original decision, thereby saving Prince’s paintings from destruction.
More importantly, however, the Court
of Appeals clarified, to the extent possible, the notion of the transformative
effect of creativity in a fair use context. For designers and artists, this
means that the fair use defense has become a little less opaque and,
potentially, an easier-to-use tool in defense of the creation of certain types of artwork.
Legally, the Court of Appeals
determined that Prince’s efforts had transformed the original photographic
works from Patrick Cariou’s Yes Rasta collection into new and
independent original works, thereby enriching the artistic biome without
harming the market or the integrity of the original photographs. As such, this
particular case clarifies competing considerations that are relevant to
designers and artists. If your work is sufficiently transformative,
borrowing is not an issue—under defined circumstances. The Court of Appeals did not write a blank check for pirates, however.
For designers or artists who feel that their own work has been misappropriated,
the decision may indicate that there are limited remedies.
As a designer or artist, if you discover that your own work
has been borrowed, there are several issues to consider. First, the
appropriation of a work of art is viewed differently when the appropriative use
is commercial in nature, as opposed to being purely artistic. In contrast, works
of commercial art will be given less deference than works residing
squarely in a rich art market.
For example, in Campbell
v. Acuff-Rose Music, Inc. (1994), the sampling and use of small
portions of Roy Orbison’s song, “Pretty Woman” by the rap act, 2 Live Crew, was
deemed by the Supreme Court to be transformative and a fair use, even though
the use was arguably commercial in nature. However, one should be mindful of the
general principal that commercial use of another’s works will not be given as
broad a license as works borrowed for use in an artistic context.
If you do find that your own work has been used by someone
else, it is advisable to consider the original nature of your own work before
deciding how to proceed. Was it primarily commercial or artistic in nature? Was
the market for it harmed? How much of your work was used? Who used it and what
was the nature of the other party’s unauthorized use? These four factors, among
others, would likely be examined by the court and given substantive
consideration in making a decision.
For artists and designers who are considering using a
preexisting work for commercial purposes, care should be taken to determine the
age and provenance of the work. Google Images is almost certainly a gateway to
infringement unless otherwise expressly noted.
Amongst copyright lawyers, fair use
is often referred to as the exception that swallows the rule of copyright, in
that the fair use doctrine, as commonly applied, has no “bright-line” rules,
and the determination of what comprises fair use is very fact-sensitive.
Compounding this problem is the reality that enforcing a copyright against a
well-financed infringer can be very expensive—as the Prince case amply
illustrates. All of this makes justice hard to achieve.
If the use of your work is artistic
in nature, fair use may genuinely exist, irrespective of how someone else feels
about your use. However, the good news is that fair use, when used properly, is
a powerful tool for designers to explore and comment on the process of
creativity itself, even when such discourse occurs in the world of creative
Frank Martinez, a former designer and Design Patent Examiner, founded The Martinez Group PLLC in 2008. Frank earned a BFA in Fine Art from Pratt Institute in New York. He served as Production Director for Landor Associates in New York prior to attending
law school. Frank, after having been a Design Patent Examiner at the U.S. Patent and Trademark Office, has worked closely with design professionals for many years in both design and legal capacities. Frank Martinez by reason of his experiences understands
firsthand the business and intellectual property issues faced by designers. Frank is also an Adjunct Professor at The School of Visual Art, in the Designer as Entrepreneur MFA Design Program, where he teaches Intellectual Property and the Law.
Learn how to get rich, keep your soul, do great work and do it all sustainably in this webinar with David C. Baker, who will show attendees how current decisions can impact the sort of retirement they’ll enjoy.
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