In the world of art, stimulating creativity becomes a constant battle between allotting freedom to new works of art while protecting original artists. Fundamentally, copyright’s aim is to promote creativity in order to benefit the public. By granting exclusive rights to authors, ideally copyright law incentivizes such creativity by original authors. But copyrights must not hamper free speech, and ideally not derivational creativity with value in the marketplace. This struggle of protecting copyrights while permitting fair use, by the doctrine bearing the same name, was recently exemplified in Cariou v. Prince, 784 F. Supp. 2d 337, 349 (S.D.N.Y. 2011).
Patrick Cariou, a professional photographer had published the book, Yes Rasta, featuring portraits he had taken while in Jamaica. A few years after the publication, the well-known appropriation artist Richard Prince used dozens of Cariou’s pictures as the basis for his series of dystopian works called the “Canal Zone” series. These works of art were exhibited at the Gagosian Gallery in 2008 and generated more than $10 million in sales.
As Prince’s works were appropriations of the photograph, defendant Prince argued that it should be allowed under fair-use exceptions to federal copyright protections (17 U.S.C. §§ 107(1)-(4)). Indeed, the fair-use doctrine permits borrowing of protected material for purposes like commentary, criticism, news reporting and scholarship, and the determination of whether fair use should apply is based on a court’s application of the four fair-use exceptions to the facts. Specifically , these factors are (1) its purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the copyright work used, and (4) the effect of the use on the potential market of the copyrighted work, with factors (2) – (4) carrying lesser weight where the purpose and character of use is strong.
In the district court ruling, Judge Batts had held in favor of plaintiff Cariou, reasoning that in order for fair use to apply, the new work of art must be transformative. Generally, courts define “transformative” use as when an author employs a copyrighted work as a type of raw material in creating his or her own information, aesthetics and insights. For example, a work is transformative if it serves a different purpose than the copyrighted work. The district court arguably departed from this notion, requiring the work to “in some way comment on, relate to the historical context of, or critically refer back to the original work.” The interpretation brought criticism by many who viewed the district court’s interpretation of what it means to be transformative as overly narrow.
The Second Circuit rejected the lower court’s ruling, finding that “the law does not require that a secondary use comment on the original artist or work, or popular culture,” but that a reasonable observer find the work to “alter the original with new expression, meaning, or message,” citing the Supreme Court’s holding in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).
Here, the majority of Prince’s work was of an entirely different aesthetic from Cariou’s pictures. While Cariou’s work was serene and of natural beauty, Prince’s work was crude, hectic, and provocative. Essentially, the value of Prince’s appropriation of Cariou’s art came from Prince’s ability to place images in new context in order to alter their meaning. It was held this new meaning in Prince’s work permits application of the fair use doctrine under transformative use, and thus escapes federal copyright protections.