What’s Fair Use?

—by Laurie ShoulterKarall for ASPP’s Midwest Chapter.

I have recently been thinking about the concept of fair use and copyright law. I can see you nodding off but stay with me for a few minutes. Recent posts on the ASMP blog have referenced the multiple and opposing court rulings regarding artist Richard Prince alleged copyright infringement of 30 images by photographer Patrick Cariou.

Initially, a NY federal court judge ruled that Richard Prince and Gagosian Gallery infringed upon photographer Patrick Cariou’s copyrights by creating paintings and a collage from photographs torn from Cariou’s book titled Yes, Rasta. The appeals court reversed the ruling and found that 25 out of 30 works by Prince made fair use of Cariou’s photographs. Five works were sent back to the lower court, as the appeals court said those works did not significantly differ enough from Cariou’s original photographs in order for them to determine their transformative nature.

During the first trial, Prince was able to piss off every photographer on the planet with the oft quoted claim that Cariou’s images were “mere compilations of facts…arranged with minimum creativity…[and] are therefore not protectable” by copyright law. (http://www.pdnonline.com/news/Appropriation-Artist-2241.shtml)

The appeals court said: “The law imposed no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary use may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship and research) identified in the preamble to the statute.”

In the past, the Supreme Court has said that in order to qualify as fair use, “a new work generally must alter the original with ‘new expression, meaning, or message.” The appeals court was convinced that Prince’s artworks were transformative in all but five as the works had a different character, and gave different meaning to Cariou’s original photographs. (http://www.pdnonline.com/news/Richard-Prince-Did-N-7964.shtml)

So what does this mean? The rarity of the case (the last major cases similar in scope and notoriety have all involved another famous, or infamous, appropriation artist, Jeff Koons) should not be cause for alarm nor should the arrogant assertions of the appropriation artist. So why should you care?

Few people outside of lawyers understand the doctrine of fair use; I doubt many people could define doctrine. So I decided to try to figure out. Fair use is defined in 17 USC 107 Limitations on exclusive rights: Fair use. The section lists the four factors to consider when determining if an action that seems like an infringement of someone’s copyright might actually be allowable as a fair use. The factors are:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Now, let’s translate:

  1. Is anyone making money on this use? Does someone, other than the original artist, benefit financially or is the use for the common good?
  2. Has the work been published, shown, reproduced or otherwise seen in public? One of the things that courts consider is whether or not the creator bothered to register the art with the Copyright office.
  3. Quality and quantity are the rule here- how much was used and how valuable is it to the whole? You may try to make the case that every item in a photograph is unique, chosen and composed by you but courts rule on whether or not your image of the over photographed Grand Canyon is unique when reviewing other similar images.
  4. What effect does it have on the marketability of the original piece? Does it make it less salable or desirable? If someone uses a portion of your image, does it change the value of your image?

There are also a few pesky but persistent uses that the courts have found to be fair use such as when someone uses an excerpt to review, critique, illustrate, or comment. Who hasn’t seen an artist’s work shown in a review? There is also an exception for parody which includes some but not all of the work; parody defined as to mock or make fun of. The best example of a parody is the thousands of images making fun of American Gothic by Grant Woods. The final uses are probably the most easily understood; quotations from a speech or paper or my favorite, limited copying by a student for school work.

So the take away should be this:

It is part of your job, as a photographer, to police the universe to see if your photograph has been appropriated, swiped, stolen, infringed or used by someone without your permission. Artists do use photographs to create paintings, sculptures and other works of art. If you discover someone has used a substantial portion of your image for commercial purposes, consider talking to an attorney. If you discover that someone has utilized a small portion of your image, consider how and why it was used as well as the context of the use. A letter or email may work as well as an attorney’s pricier intervention. A letter should include a proposed remedy for the potential misuse; this can range from informing them that they have used a copyrighted image, asking them to Stop (cease and desist) using the image as well as the displaying the work derived from it to demanding that they pay for use. Again, an attorney can assist you with this.

It is important to remember that the fair use provision of the Copyright law was created to be a bridge between protecting the economic interests of the creator and the Jeffersonian ideal that a broad dissemination of knowledge and information is necessary for the common good and development of the society.