Art Appropriation: Fair Use or Piracy

By Chris Hewitt *

Artist paint brushes in containersArt is a simple yet broad term.  One need not examine the various forms of art to determine that that realm of creation is anything but clear and form fitting.  The word itself is cryptic.  Art can take various forms, including audio, visual, or a combination of the two.  What qualifies as art?  If an individual appropriates another artist’s images and uses those images to form his own work of art, is this art or is it piracy?  Specifically, can this art form bypass copyright protections through the fair use doctrine?  This question is at the center of many copyright controversies being heard by courts throughout the world, including the case against Richard Prince and his “Canal Zone” series.

This issue has become even more important in recent years as works of art, whether visual or audio, can be accessed and copied with the swipe of a finger or a click of a traditional mouse.  It has become even easier with the introduction of the iPad art app named Mixel, which allows users to hoist images from the Internet and create their own collages or works of art.  Artists that use appropriation to develop their own works of art view such images as part of a “shared digital space” and that the images are available for them to change, to improve, or to elaborate on.  Using another’s work without permission or compensation, however, can have drastic copyright implications, as evidenced by Prince’s recent experiences.

Prince, an artist in New York, built his career on appropriating images from the works of other artists.  The lawsuit against Prince follows his use of photographs taken by Patrick Cariou, a French photographer, and published in his book, “Yes, Rasta.”  Cariou alleged that Prince appropriated at least 41 of the images in his book.  Prince used the items to create collages of the appropriated photographs and other images overlaid with “brushy strokes in the style of Willem de Kooning.” Kooning was an American artist and leader in the Abstract Expressionism movement.  Cariou was not compensated for the use of the photographs and Prince testified that he never obtained permission to use the images.

It appears that Cariou would have had no challenge in winning the copyright infringement case were it not for the fair use doctrine.  Prince argued that the fair use doctrine applied and therefore the use of the photographs should be allowed.  The fair use doctrine is an exemption under copyright law that allows individuals to borrow protected commentary for purposes such as “commentary, criticism, news reporting and scholarship.”  Judge Deborah A. Batts, however, applied a narrow construction of the fair use doctrine in her opinion holding Prince unlawfully appropriated the images.  The judge stated that for the doctrine to apply, the work must be transformative.  This means that it must “in some way comment on, relate to the historical context of, or critically refer back to the original works” that the new piece borrowed from.

At the center of the inquiry surrounding the fair use doctrine is the artist’s intent, as can be seen by the district court’s construction of the doctrine.  Prince said that he used the images to “explore his fascination with the painting of Willem de Kooning” and to link the collages to a post-apocalyptic movie he is considering.  Prince further provided that he did not make the art to comment on the work of Cariou, hence the inapplicability of the fair use doctrine under the district court’s interpretation.

copyright symbolHaving found that Prince unlawfully appropriated the images, the art from the “Canal Zone” is now illegal to sell or publically exhibit.  Any unsold paintings have also been ordered to be impounded.  Furthermore, the Gagosian Gallery, which held the show of “Canal Zone” and sold many of the paintings for millions, was forced to send letters to collectors informing them that the art they purchased was now illegal after the district court’s decision.  Prince will appeal the district court decision, but he has already been adversely affected by the decision.  The real question, however, is the affect this ruling will have on the art industry as a whole, and whether it will have a “chilling effect” on appropriation artists and galleries as many observers fear.

The Andy Warhol Foundation for the Visual Arts, among others, has filed an amicus brief supporting Prince and advocating the upheaval of the district court’s claim.  In its brief, the Andy Warhol Foundation states that it believes the district court misapplied the fair use doctrine and jeopardized the works of many artists.  Despite the fact that the Andy Warhol Foundation holds many copyrights from which it derives revenue, it believes that copyright protections must be balanced with “the need to protect the right to create new art,” something it believes the district court failed to do.

With the appeal of the Prince case and the many amicus briefs to be filed, it is clear that despite Cariou’s assertion that the fair use doctrine is “really [a] simple thing,” it is anything but.

* Chris Hewitt is a second-year law student at Wake Forest University School of Law and a member of the Journal of Business and Intellectual Property Law.  He holds a Bachelor of Business Administration in Trust and Wealth Management from Campbell University.  Upon graduation in 2013, Mr. Hewitt plans to practice business and estate planning law.