Lawsuit May Successfully Challenge Fair Use Defense in Art Appropriation
Posted by Rebecca Blake on January 11, 2016
Artist Richard Prince has made a career out of rephotographing others’ images, earning the ire of photographers and artists. This practice led to an ultimately unsuccessful copyright infringement lawsuit by photographer Patrick Cariou. In that case, the court weighed in favor of Prince, agreeing that for the most part, his appropriation of Cariou’s photos was “transformative” and falls under fair use. This year, Prince is being sued once again for infringement, by photographer Donald Graham. And this time, experts agree that a fair use defense by Prince will have a much dimmer chance of succeeding. The outcome of this case could clarify further the limits of fair use protection in the cases of art appropriation.
Fair use is often cited as a justification for appropriation art. Section 107 of the Copyright Act defines the purposes for which use of a copyrighted work can be considered “fair”: criticism, commentary, teaching, scholarship, research, and reporting news. It also defines four criteria to be considered: the purpose and character of the use (commercial or non-profit); the nature of the copyrighted work; how much of the copyrighted work is used; and the effect the use could have on the potential market for the copyrighted work or it’s value. Fair use is often misunderstood, and there is a grey area of interpretation on what constitutes fair use.
Fair use was cited by Prince as a defense in Cariou vs. Prince. In 2008, photographer Patrick Cariou claimed that Prince violated his copyright in appropriating 35 of his photos for Prince’s Canal Zone exhibit at the Gagosian Gallery. Cariou published his intimate black and white portraits of reclusive Rastafarians in his book Yes Rasta. Prince glued cutouts from the book onto plywood and applied crude overpainting. His defense in the lawsuit claimed that work fell under fair use. While Cariou won an initially in lower court, the United States Court of Appeals for the Second Circuit found Prince’s favor for all but five of the works. (In 2014, Prince and Cariou settled out of court on the remaining five works.)
In the Prince vs. Cariou decision, the court appeared to expand the boundary of fair use. In deciding that Prince’s work was transformative, the court took into consideration “how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.” That interpretation of “transformative” was crucial to Prince’s defense. Ordinarily, an artist’s intention to imbue an appropriated work with new meaning or message is crucial to determining if the work in transformative. However, in his testimony in the original case, Prince stated that he had no such intention. During the appeal, the Warhol Foundation issued an amicus brief, in which they asked the court to consider the “broader art community,” rather than just the artist, to be the reasonable observers of the paintings. The transformative nature of the work would be apparent to that community, presumably art critics, dealers, fellow artists, collectors, and audience.
The Guild strongly disagreed with this interpretation. In an amicus brief filed by the Guild and other arts organizations, the Guild argued that the “reasonable person test” proposed by the Warhol Foundation “would create an unwarranted safe harbor around a small coterie of well-connected elite artists who sell their works for extraordinary prices, at the expense of the greater community of working artists.”
A fair use defense that hinges on such a definition of a “reasonable observer” would have less weight in the current infringement case. This case stems from Prince’s “New Portraits” series, shown at Gagosian Gallery and at The Frieze Art Fair in 2015. Prince appropriated photos posted to Instagram by a wide number of people – models, bloggers, photographers, etc. His reworking of the images was minimal; some images were cropped, and Prince added his own “comment” to the Instagram comments. The exhibit was predictably widely criticized, particularly by photographers. The ire was fanned by both Prince’s press release for the exhibit, in which he claimed “What’s yours is mine”, and by the up to $100,000 price the pieces commanded. It seemed inevitable that Prince would be sued for copyright violation, and in early January, photographer Donald Graham did just that.
At the heart of Graham’s lawsuit is his black-and-white photograph, Rastafarian Smoking a Joint. The photo had been posted to Instagram by a third party, where Prince discovered it and appropriated it. When Graham discovered that his photo was being sold as part of the New Portraits show, he instructed his lawyers to send cease and desist letters to Prince and Larry Gagosian, owner of the Gagosian Gallery. Prince appeared to dismiss the request; Art News reports that in response to a complaint by Graham’s wife about the appropriation, he posted, “You can have your photo back. I don't want it. You can have all the credit in the world.”
Art News interviewed a number of intellectual property attorneys on Graham’s lawsuit, and they agree that he has a much stronger case than Cariou. They point out the Prince’s modification of Graham’s image was minimal – a slight cropping of the photo on top and bottom and the addition of the Instagram comment – weakening any transformative defense argument. Additionally, Graham copyrighted the photo and sells it as part of an edition through his Paris dealer, A. Galerie, as well as from his studio. (Graham is a well-known photographer who routinely exhibits his photographs in museums and galleries, and sells prints.) Unlike Cariou, who did not generally earn an income from gallery sales, Graham can claim that Prince’s sales of his Instagram appropriation will cut into Graham’s market for that image.
Below: What goes around... Donald Graham posted a compaint about the ”Prince of Appropriation” to his Instagram account when he discovered his photograph had been appropriated.
Copyright Infringement Dispute Highlights Issues of Plagiarism on Social Media
Posted by Rebecca Blake on December 29, 2015
Illustrator Ally Burguieres discovered this past Fall that one of her illustrations was posted to Taylor Swift’s social media accounts. The work was a copy of an illustration Burguieres sells as a print, and the fan who copied the work signed her own name rather than including Burguieres’ credit line. Swift apparently posted a snapshot of the fan’s post to her Twitter, Tumblr, and Instagram accounts to promote her 1989 tour. After a year of negotiating with Swift’s representatives, Burguieres posted on Facebook that while her infringing work was immediately removed from Swift’s account, she was offered a four-figure compensation with the stipulation that she donate the amount to an animal charity. She refused the offer since it did not include her primary request: that her work be credited to her. (Swift’s representatives dispute this account.)
In light of Swift’s outspoken support of artists’ rights, the dispute received a lot of attention. Burguieres declined to pursue the matter any further. In an interview in Hyperallergic, Burguieres stated that she was satisfied with the attention the dispute brought to the issue of plagiarism. She put her finger on the issue artists have with the culture of sharing: “I know it’s a sharing culture now, and I have no problem with sharing artwork and having a collaborative culture as long as it’s credited.”
For individual illustrators, copies of their work made by fans creates a situation complicated by the illustrators’ reliance on licensing income to support their livelihood. On one hand, the adulation of a true fan is affirming and copies of the illustrator’s work can, if properly credited to the illustrator, generate publicity. On the other hand, fan art can dilute the licensing value of an illustration. Some illustrators are tolerant of fan art. Others who request that fans refrain from publishing copies of their work – something well within their rights – are often excoriated as greedy.
In Burguieres’ case, the situation was further complicated by the fact that the Taylor Swift fan who copied and posted Burguieres’ work signed her own name to it. Swift and members of her team were not aware that the image was pirated. The ease with which the image was reposted to Swift’s multiple social media accounts – and from there, reposted, downloaded, and shared countless times – essentially meant that as soon as the fan uploaded the copy, Burguieres lost any semblance of control over her image.
Of course, the situation would have had a different outcome had some common sense (and basic courtesy) been followed. The fan should not have signed her name to an illustration that was a close copy of someone else’s work. (In fairness to the fan, she appears to be young and naïve – the case makes a good argument for adding copyright awareness to high school art curricula.) Swift’s publicity team should also have credited the original illustrator once the piracy came to light. After all, credit for her creation was the outcome Burguieres desired the most: “It shouldn’t be that difficult to give credit.”
Below: Burguieres’ side-by-side comparisons of her illustration and Swift’s social media post. (© Ally Burguieres, used with permission of the artist)
Apparel Company Counters Piracy Accusation with Bogus Claim of Copyright Infringement
Posted by Rebecca Blake on December 28, 2015
Canadian illustrator Eric Kim reported that his illustration of pro wrestler Randy “The Macho Man” Savage was pirated by apparel company Freeze Central Mills Inc. In October, Kim discovered that Freeze had taken his artwork, flipped it, erased part of the image, and printed it on red sweatshirts with a holiday message. Although the sweatshirt image has been altered to appear as if it were created from cross-stitch embroidery, the illustration was clearly traced from Kim’s original. The sweatshirt was sold by 80s Tees in time for the 2015 holiday season.
Kim immediately took action, contacting Freeze Central Mills through his lawyer, and requesting a fee of $1,500 for the use of his image, of which $1,000 would have gone to legal fees. According to Kim, Freeze returned an offer of $350, a paltry sum. (Kim estimates that 1,440 sweatshirts were sold, generating $20,106 in income for Freeze.) The website which sold the sweatshirt, 80sTees, was far more accommodating to Kim, removing the shirt from sales, and adding Kim’s credit line and a link to his website.
What is even more troubling about Freeze’s response to Kim is that they told him that he “was in trouble with the WWE (Worldwide Wrestling Entertainment) for even making the image” since he was violating the copyright of the image. If Kim’s recounting is accurate, Freeze is incorrect on several counts. Randy “The Macho Man” Savage was the ring name of the wrestler, Randy Mario Poffo, who developed the character while wrestling for the Worldwide Wrestling Foundation (WWF). WWE doesn’t hold the copyright to the character. While the character has been trademarked by Savage’s wife (the wrestler died in 2011), the trademark specifically covers action figures and accessories.
Kim might have concerns should his image violate Savage’s (or his estate’s) right of publicity. However, right of publicity generally permits individuals to control the commercial use of their images. Kim created his illustration and posted it in his portfolio to showcase his skills; he never intended to market the image commercially. Additionally, right of publicity is not covered by federal statute, but is controlled by state law, and varies widely. (For more information on right of publicity, check out attorney Robert Clarida’s article on the topic on our Tools + Resources page.)
The irony of Freeze’s response to Kim is that the company, not Kim, sought to profit from the image. If the company was truly concerned with legalities, their marketing team would have done due diligence to ensure that using the image didn’t violate intellectual property or publicity rights. In fact, Freeze appears to have a history of violating trademarks. In February of 2015, the company was found to have violated trademark law in marketing goods bearing Bob Marley’s image. And in August, Adidas filed a lawsuit that accuses Freeze of violating their three-stripes trademark. In light of their history of trademark violation, Freeze’s response to Kim appears to be a blatant (and somewhat hypocritical) attempt to deflect the illustrator by raising bogus fears of copyright infringement.
Below: Eric Kim’s comparison of his illustration (left) and the Freeze sweatshirt. (© Eric Kim, and not the WWE! Used with permission of the artist.)
The Restrictions in Stock Image Licenses Illustrators and Designers Need to Know
Posted by Rebecca Blake on October 06, 2015
Microstock websites – websites that purvey low-cost photos, illustrations, and icons – have become a standard image source for designers with small budgets and undiscriminating clients. Illustrators have also used microstock, either in the creation of collage or montaged imagery, or as reference material for illustrations. However, both designers and illustrators are cautioned to read through the licenses employed by microstock sites. The low fees and “royalty free” label extended by microstock sites do not translate to unlimited use of their images.
Restrictions which would affect illustrators seeking to use stock imagery as source material are not always as clearly spelled out. The license agreement for Getty Images is an exception; it states: “Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Licensed Material.” Of the licenses reviewed, only iStockphoto’s license includes similar language to Getty’s, but the other terms do restrict the reselling of their images. Since the authors of the microstock images retain the copyrights, one can reasonably surmise that an illustration based on a stock image may not be copyrightable. A safer course of action for illustrators is to use source material that is clearly in the public domain.
There is a downside to using microstock sites in general. Much of the imagery uploaded to the sites is trite, stereotypical, or simply poorly executed. (Stock photos were beautifully lampooned by the fake images created to mark the release of the film, “Unfinished Business.”) Microstock is also blamed for devaluing the illustration and photography professions by using an unsustainable business model that can’t support professionals.
Below: highlighted portions of the Getty, iStockphoto, and Dreamstime licenses.
Library of Congress Technology Woes Shut Down Copyright Office
Posted by Rebecca Blake on September 14, 2015
Creators seeking to register their work online at the end of August were foiled by a system outage that took the electronic filing system offline. The outage lasted for nine days, from August 28th through September 5 and was caused, according to a report issued by the office, by the shutdown of a Library of Congress data center for scheduled maintenance. The Library’s information technology office was unable to bring the system back online for several days, costing the office about $650,000 in lost fees, as reported by The Washington Post.
The outage came on the heels of a damaging report by the Government Accountability Office, which accused the Library of failing to prioritize digital technology or effectively manage its computer systems. The Copyright Office, which is a department of the Library of Congress, uses the IT infrastructure – the network, servers, telecommunications, etc – maintained by the library. In her testimony before the House Judicary Committee in April, Maria Pallante, Director of the Copyright Office, highlighted the need for the office to modernize, with technology staff independent from the Library and focused on the Office’s specific goals.
Terrence Hart covered the dilemma facing the Copyright Office in his article, “Outage shows need for Copyright Office modernization.” Hart points out the futility of housing the Copyright Office within the Library of Congress, considering that the two have distinct administrative needs and missions. He concludes by calling for Congress to give the office “the autonomy and resources it needs, without further delay.”Previous Page Next Page
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