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Appropriation asAppropriation asLegitimate Practice:Legitimate Practice:Rethinking Fair Use inRethinking Fair Use ina Networked Societya Networked Society
xtine burroughGenelle Belmas
California State Univ., Fullerton
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xtine would be here except:
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Appropriation asAppropriation asLegitimate Practice:Legitimate Practice:
Rethinking Fair Use inRethinking Fair Use ina Networked Societya Networked Society
“Only those with no memoryinsist on their originality.”
– Coco Chanel
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“Kind of Bloop” chiptune recording cover
• Original photo © Jay Maisel. Low-resolution images used for critical commentary qualifies as fair use. (Usually! Sometimes!)
• Andy Baio paid Maisel $32,500 to settle, and cannot use the image anymore
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The fair use doctrine• 1978 act (17 U.S.C.§107)
• Allows some uses of copyrighted work without an explicit grant of permission
• Balancing test made up of four parts
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The fair use doctrine:four parts
• Purpose and character of the use– Commercial vs. educational– Transformative vs. reproductive
• Nature of the copyrighted work – Fictional vs. factual– Degree of creativity required
• Amount and substantiality used; and
• Effect of the use upon the market (or potential market) for original work
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Transformation• Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569 (1994)– 2 Live Crew parody of “Oh, Pretty Woman” (Roy
Orbison)
– Court said this was a fair use: “The central purpose of this investigation is to see … whether the new work merely ‘supersede[s] the objects’ of the original creation, …or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative’”
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Disconnect between fair use and appropriation art
• Appropriation is a two-part process– First: borrowing, copying, lifting, or
referring to an original cultural product (an image, an object, a film, a website).
• If one stopped here, this form of copying would likely be described as plagiarism
– Second: transforming, intervening, flipping, or interpreting (conceptual play, cultural resistance, marketplace defiance, etc.) – fair use has problems with this part
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Ex. 1: Richard Prince’s “Canal Zone” paintings
• Left: from Patrick Cariou, Yes, Rasta, 2000.• Right: from Richard Prince, Canal Zone, 2007.
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Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011)
• Cariou’s book resulted from six years photographing Rastafarians in Jamaica
• Prince said he appropriates others’ images to “get as much fact into his work and reduce … the amount of speculation” – Judge’s interpretation: “[Prince] chooses the
photographs he appropriates for what he perceives to be their truth – suggesting that his purpose in using Cariou’s Rastafarian portraits was the same as Cariou’s original purpose in taking them: a desire to communicate to the viewer core truths about Rastafarians and their culture”
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Ex. 2: Jeff Koons’ “String of Puppies”
• Left: Art Rogers, Puppies, 1985.• Right: Jeff Koons, String of Puppies, 1988 (four copies).
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Rogers v. Koons, 960 F.2d 301, 2d Cir., 1992
• Koons commissioned the sculpture as part of his “Banality Show” – copied image from a postcard
• Summary judgment against Koons for © infringement was affirmed because the copying was for profit rather than a parody– “…though the satire need not be only of the copied
work and may, as appellants urge of ‘String of Puppies,’ also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work”
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What problems need to be addressed?
• What does “transformed” really mean?
• Are judges artists, or sufficiently trained to recognize the artistic commentary or parody of appropriation art?
• Why is the creator (author) so deified? Should it be so?
• What are the real damages?
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Thoughts from A. Steiner, “A Few Observations on © and Art” (2013)
• Appropriated artists benefit from appropriation in sales and impact (cultural value)– “Influence on later artists is one of the most
important objective measures of an artist’s historical importance. Thus, the more later artists ‘cite’ an earlier artist in their work, the more historically relevant the earlier artist becomes.”
• Exceptions should be made for unique or small-run pieces
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A new formulation for fair use in defense of appropriation
• Collapse the first two elements: Degree of transformation on creative copyrighted works (rather than purpose of the use and nature of the work, since we assume the work is creative and appropriated)
• Eliminate the third element (where appropriation is concerned it’s concept, not quantity, that matters)
• Consider harm (the fourth element) in light of the uniqueness of the resulting art and art-historical progress/artistic reputation (cultural value ascribed to the original)
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Huxley-Lester model• “The more you know, the more you
see”
• The Gestalt Law of Past Experiences is at play—a viewer’s ability to connect a prior work to a transformative piece influences their judgment of the transformative quality of the new work
• Require expert witnesses or judicial training on art history/visual literacy
