Abstract
The critical literature on copyright law’s fair use rule is enormous, with much of the recent spilling of ink bemoaning the overuse of transformativeness as a decisive factor in the case law. Many courts now consider whether a secondary user has added value to a work by including new insights or new aesthetics to be critical in resolving fair use disputes, even if the amount taken from the original is extensive. An unfortunate impact of that judicial trend has been to overshadow the importance of other factors that should be taken into account, but often are not. One of the ignored issues is the negative impact that users’ actions may have on third parties who are not directly involved in an intellectual property disagreement. This brief Article tackles this oversight, first by providing a short overview of a segment of fair use law and second by reviewing a judicial example that vividly displays the problem and strongly suggests a need for the reconfiguration of fair use doctrine.
Introduction
The critical literature on copyright law’s fair use rule is enormous, with much of the recent spilling of ink bemoaning the overuse of transformativeness as a decisive factor in the case law.1 Many courts now consider whether a secondary user has added value to a work by including new insights or new aesthetics to be critical in resolving fair use disputes, even if the amount taken from the original is extensive. An unfortunate impact of that judicial trend has been to overshadow the importance of other factors that should be taken into account, but often are not. One of the ignored issues is the negative impact that users’ actions may have on third parties who are not directly involved in an intellectual property disagreement. This brief Article tackles this oversight, first by providing a short overview of a segment of fair use law and second by reviewing a judicial example that vividly displays the problem and strongly suggests a need for the reconfiguration of fair use doctrine.
I. A Brief Background: Transformative Fair Use
Fair use is one of the most frustrating arenas in copyright law. While many disputes can be resolved in favor of granting fair use in a relatively straightforward way, especially in cases involving parody, educational uses, academic publications, and certain forms of public commentary, the vagaries of the doctrine have led to a number of conflicting or questionable decisions. The statutory provisions themselves are vaguely framed and easily subject to varying interpretations.2 For purposes of this Article, the most important of the four factors that section 107 of the statute instructs courts to evaluate is the first: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”3 This language—especially “purpose and character”—has become the primary source for courts’ reference to the transformative qualities of a work as a decisive factor. The term was coined in a now famous article by Judge Pierre Leval. His work focused most intensively on fair use in biographical works.4 He suggested that if “the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”5 Leval focused his attention almost entirely on two then-recent federal circuit court decisions6 that cast doubt on authors’ ability to use quotations from letters and other documents written but often not previously published by the subjects of biographies. He hoped to relieve some of biographers’ concerns by urging adoption of a standard allowing creative, historical, informative uses of materials that shed light on the lives of famous people if the portions used are not quoted primarily because they contain scintillating, provocative, or eyecatching phraseology, but rather to enhance analysis of the life of the book’s subject.7 Leval crafted a fairly narrow understanding of the meaning of transformativeness—much narrower than many recent court decisions—while still reconstructing fair use doctrine to allow much use of unpublished letters and documents to be fair.8
It was the Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc.,9 however, that jumpstarted the rise of transformativeness as a critical fair use factor. The Court held that the rap group 2 Live Crew’s reworking of the sappy Pretty Woman tune into a somewhat vulgar, satirical takedown of the “genteel” prostitution movie of the same name, was a parody and a fair use of the original tune and some of its lyrics. Justice Souter wrote:
The first factor in a fair use enquiry is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. This factor draws on Justice Story’s formulation, the nature and objects of the selections made. The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like . . . . The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely supersedes 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. . . . Although such transformative use is not absolutely necessary for a finding of fair use . . . the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, . . . and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court’s equal division. Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107.10
The Court’s broad language, permitting the transformative quality of the use to override concerns about the commercial ambitions of the defendant’s work,11 easily allowed later courts to expand the meaning of transformativeness. This expansion sometimes occurred to the exclusion of other aspects of disputes that also might easily have been encompassed within the first fair use factor—the purpose and character of the use. By approving use of copyrighted works adding “something new,” containing a “further purpose or different character,” or “altering the first with new expression, meaning, or message” the Court opened a Pandora’s box countenancing results that moved far beyond the original intention of Leval to open a bit more room for use of copyrighted material in biographical, historical, or scholarly works. Justice Souter’s language potentially encompassed arenas unrelated to either historical inquiry or parody like that protected in the Pretty Woman case. Indeed, it even approached the definition of a derivative work12—a work recasting, transforming, or adapting a protected creation—that copyright owners are given the exclusive right to control under the code.13 The similar phrasing in definitions of “transformative” and “derivative work” led the trial court in Cariou v. Prince,14 the baseline case used in this Article and discussed in the next Part, to somewhat awkwardly try to distinguish the two. Academic commentary also has emerged on the difficulties of working simultaneously with derivative works and claims of transformative fair use.15 The potential breadth of Justice Souter’s opinion moved far beyond the narrow limitations of Leval’s original meaning of transformativeness and has been a major factor in allowing decisions like Cariou to arise.
II. Cariou v. Prince and Its Misplaced Fair Use Holding
The baseline example underlying this discussion is the oft-discussed case of Cariou v. Prince.16 Patrick Cariou befriended a largely isolated community of rural Jamaican Rastafarians, spent a great deal of time with them over a period of six years,17 gained their trust, took an array of pictures with the consent of the community, and placed many of his austere, beautiful images in the 2000 volume Yes Rasta.18 Richard Prince made copies of a number of images from the book, tore portions—mostly people—of some of the photographs from the compositions, blew up the torn out segments to very large sizes, placed them on an array of canvases, and interspersed them with blotches of color, musical instruments, or images of nude, often white, women. The canvases became part of Prince’s Canal Zone series. Some were shown in several places before a large exhibition was opened at the well-known Gagosian Gallery in New York City.19 When sued by Cariou, Prince claimed fair use. He lost in the trial court but prevailed in the U.S. Court of Appeals for the Second Circuit with regard to the lion’s share of the images.20 While some discussion of Prince’s aesthetic intentions appeared in the trial and appellate opinions, neither court paid attention to the impact of their decision on the third parties to the copyright dispute: the Rastafarians in Cariou’s photographs.
A. Prince’s Artistic Intentions
As noted, a small part of the judicial discussion focused on the importance of artistic intention in making fair use decisions about appropriation art—the central stylistic genre of Prince’s artistic career.21 Relying extensively on the prior work of others has been his bread and butter. Reading the evidence to suggest that Prince had no particularized aesthetic style or purpose in mind when rendering his Canal Zone series, the Second Circuit looked at the appearance of Cariou’s and Prince’s images as the primary basis for resolving the transformativeness issue—in essence taking an objective look at the appearance of the works to decide fair use. Did Prince create a significantly different aesthetic style in his work, the court asked, that was distinctly different from that of Cariou? By limiting his inquiry to aesthetic appearance Judge Barrington Parker, writing for the court, eschewed any deep look at Prince’s aesthetic goals or other artistic motivations. He simply concluded that “our observation of Prince’s artworks themselves convinces us of the transformative nature of all but five . . . .”22 Other inquires fell to the wayside. The court thereby ignored both Prince’s motivations as well as the potential negative effects of Prince’s actions on the lives of the people portrayed in Cariou’s work.23
Despite the courts reading of Prince’s intentions, he himself has stated some of his own views over the years. One particularly intriguing statement on his web site provides much more insight into his artistic goals than the Second Circuit discerned. He clearly has motivations, though arguably unusual, for his use of the images of others. Peruse this intriguing paragraph:
By cropping and taking a photograph from an already existing picture, your [sic] in a sense fragmenting the real and attempting to add on, or ‘annex’ it to something more real.
Another way and perhaps another step towards this pseudo-reality, is to make a photograph that has the effect of being sent away for. Not in the literal sense of course, but having the spirit of having been commercialized. This commercialization of the picture requires a sophisticated attitude or at least the permission of letting oneself work on a pairing or fifty-fifty partnership where something of another personality or emotion or product signs the work. The idea is to promote a “where the fuck did you get those” kind of take. This questioning reaction could in many respects become the point of seduction.
It’s kind of early to tell, but I’m assuming it would require a spectator with a willingness to be a sucker. And if not a sucker, at least someone who wanted some fun and who spent a lot of times in the movies, and didn’t pay any attention to the credits.24
This statement is far from the court’s view that Prince had virtually no intentions at all in making the Canal Zone series. He recognizes exactly what he is doing in creating a “fifty-fifty partnership” with “another personality” who “signs the work.” He wants his viewers to be seduced into asking where he got the underlying images, in part as a trick, a way of enticing his “sucker” viewers to think of fantasies—fun or movies—without considering the work of those listed in the “credits.” He wants to entice viewers to wonder about his source materials without even giving them credit for their prior creativity. It is a deeply impertinent take not only on the work he plagiarizes, but also on the people he manages to seduce into viewing and buying his work. Though he writes of “fun,” his motivations hardly are humorous. The court’s notion that Prince has no significant artistic goals in making his work was deeply wrong. And the cavalier dismissal of any efforts to move behind his pessimistic views of both his own work and his audience also allowed the court to easily ignore the possible impact of Prince’s work on the Rastafarians. His attitude is much more closely related to the intentional use of a purloined document25 than it is to notions of either critical commentary or traditional recognition of those creative souls who have preceded us on this earth.
B. The Impact of Prince’s Actions on the Rastafarian Community
The Rastafarians pictured in Yes Rasta lived in a rural area of Jamaica, perhaps in St. Catherine’s Parish, not far from where the original Rastafarian settlement—Pinnacle—was located.26 Their lives, largely separate on a day-to-day basis from the multitude of urbanized Rastafarians scattered across Jamaica, are nonetheless culturally quite similar to their brethren in the cities.
Though the heavily commercialized, urbanized world of reggae music made popular over much of the world by Bob Marley and his musical descendants27 is not fully integrated into their daily lives, the underlying sense of culture, religion, and ethnicity of various Rastafarian populations often is quite similar. That is not terribly surprising since the urban settlements typically arose when more rural populations moved to the cities.28
Cariou knew about and respected the cultural and ethnic history of the people he photographed. Their Afrocentric belief structure began to form in mountain communities as a reaction to British colonial rule during the early decades of the twentieth century. Early communities were suppressed by British and Jamaican authorities until well into the twentieth century—in part because of their growing and using cannabis, but also because of their anti-British, Afrocentric belief structure. The most well-known community, Pinnacle, was sometimes brutally overpowered during the 1940s and 1950s. By that time the community’s belief structure had come into focus—male dominated community and family life, a single deity, the notion that community members were not European but Ethiopian—African descendants from the east of the continent never conquered by the west, the centrality of the biblical exodus to freedom, the labeling of Africa as the promised land and western society as Babylon, the view that white society was oppressive, the significance of Emperor Haile Selassie I (King Ras Tafari I) as either the second coming of Christ or a prophet, the hope among some members of the community for repatriation to Africa, community meetings animated by discussions, chanting and singing, and use of cannabis as a sacramental source of understanding. A central event in the history of the Rastafarians was the visit of Haile Selassie to Jamaica in 1966, four years after the island gained its independence. It gave the community more credibility and helped lead to both a reduction in suppression and growth in popularity of the group.29
Cariou himself clearly was concerned about the presentation of images of Rastafarian community members to the larger world. The exact nature of the consent he obtained to take photographs and display them in a book is not known, but it is clear he exercised care in the construction of Yes Rasta. At the end of the volume he wrote, “Out of respect for the privacy of the Rastas in Yes Rasta, captions of names and places have been excluded.”30 And with the exception of two decorous, (probably) family portraits near the end of the book, no women or children are pictured.31
From just this brief summary of the long, complex Rastafarian history and of Cariou’s treatment of the images it is clear that Prince’s reconstruction of Cariou’s images was highly antithetical to the basic beliefs of the community—the centrality of blackness, the largely male dominated character of the society and the images, the declination to circulate widely in white culture, the refusal to parade oneself among nude, especially female, figures, and the distinctly regal, confident quality of the people portrayed in Cariou’s Yes Rasta. The austere, noble quality of Cariou’s work distorted by Prince is vividly demonstrated by just one image from Yes Rasta that was used in fifteen different Prince compositions.32 Imagine this person’s image torn out of Cariou’s photograph, blown up, and placed on a canvas in the midst of nude women—hardly a result conforming with Rastafarian concepts of ethnicity.33
Indeed, my view is that Prince’s Canal Zone series is deeply offensive and insulting to the Rastafarian culture, a view seconded by one of the most important academic commentators on the history, culture, religion, and ethnic identity of the Rastafarian people. Charles Price, author of Becoming Rasta: Origins of Rastafari Identity in Jamaica, finds that “the Prince renditions [are] offensive, disturbing, and sacrilegious. I am sure they would make many Rasta people see red. The Prince collection, if copies reach Jamaica, will generate a firestorm, and at minimum, make it near impossible to do what Cariou did—gain the trust of his collaborators to represent their images to the world.”34
If Price is correct—a possibility not explored in the Cariou litigation—it is wildly inappropriate to think of Prince’s work as anything like uses of preexisting copyrighted materials traditionally labeled as fair: historic commentary, aesthetic criticism, educational instruction, or parody. Both the scale of his taking and the nature of his reuse are well beyond what was deemed unfair in earlier cases.35 His work is a perfect example of how use of transformativeness as the principle baseline for fair use—especially the objective version employed by the Cariou court36—skews the traditional purposes of the doctrine by burying judicial consideration of other factors.37
C. Analogizing Cariou v. Prince to Harper & Row v. Nation Enterprises
The best analogy to the dispute is not the Pretty Woman parody case38 often cited as the judicial takeoff point for transformative fair use, but the earlier and first major Supreme Court fair use case—Harper & Row Publishers v. Nation Enterprises.39 Victor Navasky, editor of The Nation—a well-known journal of political commentary—somehow came into possession of a purloined manuscript of Gerald Ford’s soon to be published memoir.40 Harper & Row had made a prepublication deal with Time, Inc. to allow early release of portions of the memoir describing Ford’s motivations for pardoning Richard Nixon in 1974. After obtaining a purloined copy of the manuscript, Navasky arranged for a lengthy article in The Nation about the pardon that contained important segments from the memoir destined for publication a bit later in Time Magazine under the arrangements made with Harper & Row.41 Harper & Row sued Nation Enterprises.
Navasky and The Nation claimed that the publication of the Ford memoir excerpts was protected by fair use as an important commentary on a critical public issue. The Supreme Court disagreed. While it relied on a notion later partially discredited by Congressional action—the importance of allowing authors to decide how and when their writings would first be revealed to the public42—it also spent significant time on Navasky’s misbehavior in accepting and using portions of a purloined manuscript. Its full analysis of the first fair use factor dealing with the purpose and character of the use of the memoir by The Nation also must be taken into account in thinking about later cases like Cariou. The Court was not pleased with the intentional misbehavior of the magazine in accepting and using a purloined document, noting that the “character” of a use includes analysis of the “propriety of the defendant’s conduct.”43 A fair use claimant entering the fray with a seriously tainted frame of mind, the Court suggested, cannot easily justify reliance on fair use doctrine to provide it with a defense to infringement.
Although making deeply maligning transformations about the meaning of a work, as Prince did with the Canal Zone series, certainly is not the same as reliance on a purloined manuscript, it does raise the same general question: the import of a fair use claimant’s state of mind or aesthetic goals when using a copyrighted work. At some point, the motivation for or negative connotations involved in taking a preexisting work can be so difficult to justify that the “purpose and character” of its use cannot be deemed as a favorable factor to a defendant raising fair use as a defense. While holdings that limit or bar use of the first fair use factor as favorable to an alleged infringer whose materials are seriously harmful to third parties not involved in the litigation may not be decisive in every case, such results may cause more careful consideration among reusers of protected works. While the line drawn here obviously is vague, it is no different from many other difficult line drawing efforts typically made in weighing the various factors in the fair use arena. The failure of the Cariou court to account for the clash between Prince’s work and the Rastafarian community’s belief structure was both unfortunate and erroneous.
A Few Last Words
Some will surely argue that allowing harsh commentary on preexisting copyrighted works to lower the likelihood of success in claiming a fair use defense is shortsighted if not dangerous. The threat to First Amendment values, the contention would go, is too great. To some extent this claim has been given credence by the Supreme Court. Using legal norms to control highly critical or inflammatory commentary about a public person, organization, or artistic endeavor has met with some constitutional limitations. After New York Times Co. v. Sullivan44 and Time, Inc. v. Hill,45 publicly important personalities must demonstrate malice in order to prevail in defamation or false light46 claims.47 Might a similar constraint be imposed on any effort to limit fair use provisions in the copyright act in ways that constrain artists from making contentious displays of people in their work?
That certainly is possible. It is not entirely clear, however, that defamation and false light rules are appropriate to apply to fair use litigation. Fair use is a highly ambiguous decisional process based on a multitude of factors. That became quite clear in The Nation case. The Supreme Court carefully paid attention not only to the first fair use factor dealing with the nature and character of an alleged infringement, but also to the other three. The use of a purloined document certainly was important, but, at least in the wording of the opinion, not decisive. That is standard fare for fair use decisions—a quite different logical process from the much more directed elements involved in finding out whether malicious intent was present in publishing untruths as in a defamation case. Courts, almost by rote at times, commonly rattle off each of the four fair use factors in section 107 and work through them all.
Even in Cariou it is not at all clear that the provocative style of Prince’s images should, by itself, carry the day with regard to all the allegedly infringing works. 2 Live Crew’s parody of Pretty Woman was hardly a kind, polite putdown. It, like Prince’s work, must have seemed nasty to some listeners. But it also was clearly intended as a tongue in cheek, parodic critique—an outcome hard, if not impossible, to discern in Prince’s use of images from Yes Rasta. But when placed in the balance with other factors—Prince’s creative artistic style using an interplay of collage, painting, and large scale, the very small likelihood that the market for Cariou’s work was diminished by Prince’s use of his photographs, and the virtual impossibility of discerning the presence of Cariou’s images in some of Prince’s compositions—it is possible that some of Prince’s works would be deemed fair. Though I think the court allowed too many of his pieces to pass fair use muster, my real point is that the judicial logic was much too limited and culturally shortsighted to justify the result it reached.
In the future, therefore, appellate courts should make at least three changes to their heavy reliance on transformativeness in analyzing fair use. First, as others have noted, each of the four factors listed in section 107 should be given significant weight in the decisionmaking process. Second, statements like that of Richard Prince, claiming that he had no particular intention in mind when he made the Canal Zone series, should not be allowed to cover over or hide the potentially negative contours or impacts of his motivations. The Court’s presentation of Prince’s statements were clearly inadequate. Prince himself has stated his own somewhat dismissive attitudes about the work of others in attempting to justify his use of their creativity. Finally, in working through the first factor dealing with the nature and character of the alleged infringer’s use of protected artistic material, an “objective” comparison of the work of the plaintiff with that of the defendant is wholly inadequate. Proper analysis should include a careful look at the motivations of the defendant for using the plaintiff’s work and the impact of the defendant’s actions on any people or communities pictured in the original work. Though care must be taken to allow a great deal of room for critical commentary and controversial artistic undertakings, that does not mean that use of the work of others that might be harmful to third parties should routinely be permitted.
[1]. One of the most important recent articles summarizes much of the extant literature before describing in detail an extensive study that reveals the large proportion of cases where transformation was a decisive factor in resolving a fair use dispute. Jiarui Liu, An Empirical Study of Transformative Use in Copyright Law, 22 Stan. Tech. L. Rev. 163 (2019). For earlier studies on the rise of the transformative standard, see Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715 (2011); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. Pa. L. Rev. 549 (2008).
[2]. The statutory provision, 17 U.S.C. § 107 (2011), reads as follows:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
[3].17 U.S.C. §107(1) (2011).
[4]. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).
[5]. Id. at 1111.
[6]. The two cases were New Era Publications International, APS v. Henry Holt & Co., 884 F.2d 659 (2d Cir. 1989) involving a biography of Ron Hubbard, the founder of scientology; and Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987), discussing the famous, but reclusive author J.D. Salinger.
[7]. Leval, supra note 4, at 1112–13.
[8]. In part, he was criticizing himself. Leval was one of the judges who sat on the Salinger case; he confessed to some error in the opinion. Id. at 1113.
[9]. 510 U.S. 569 (1994).
[10]. Id. at 578–79 (citations and internal quotation marks omitted).
[11]. This result suggests how dramatically fair use jurisprudence has changed since the Supreme Court’s first decision in the area—Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984). The Court relied heavily on analysis of the commercial impact of the Betamax video recording system in reaching its decision. Indeed, it noted that commercial impact was a major factor in fair use analysis, writing that “respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works.” Id. at 456.
[12]. 17 U.S.C. § 101 (2017) defines the term this way:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”
[13]. 17 U.S.C. § 106 (2017) provides “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: . . . (2) to prepare derivative works based upon the copyrighted work . . . .”
[14]. Cariou v. Prince, 784 F. Supp. 2d 337, 348 (S.D.N.Y. 2011), rev’d in part, vacated in part, 714 F.3d 694 (2d Cir. 2013). The trial court opinion was reversed. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
[15]. See, e.g., R. Anthony Reese, Transformativeness and the Derivative Work Right, 21 Colum. J.L. & Arts 101 (2008); Lynne A. Greenberg, The Art of Appropriation: Puppies, Piracy, and Post-Modernism, 11 Cardozo Arts & Ent. L.J. 1 (1992); Copyright Law — Fair Use — Second Circuit Holds that Appropriation Artwork Need Not Comment on the Original to be Transformative. — Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), 127 Harv. L. Rev. 1228, 1232 (2014).
[16]. 714 F.3d 694. Among the articles that discuss fair use, transformativeness, and Cariou are Amy Adler, Fair Use and the Future of Art, 91 N.Y.U. L. Rev. 559 (2016), Eva E. Subotnik, Intent in Fair Use, 18 Lewis & Clark L. Rev. 935 (2014), Kim J. Landsman, Does Cariou v. Prince Represent the Apogee or Burn-Out of Transformativeness in Fair Use Jurisprudence? A Plea for a Neo-Traditional Approach, 24 Fordham Intell. Prop. Media & Ent. L.J. 321 (2014), and Brittani Everson, The Narrowest and Most Obvious Limits: Applying Fair Use to Appropriation Art Economically Using a Royalty System, 63 Cath. U.L. Rev. 729 (2014).
[17]. Cariou, 784 F. Supp. 2d at 343.
[18]. Patrick Cariou, Yes Rasta: Photographs by Patrick Cariou (2000). Perry Henzell wrote some brief narrative segments; the pictures were all taken by Cariou.
[19]. Images of the exhibition may be found at https://gagosian.com/exhibitions/2014/-richard-prince-canal-zone (last visited Apr. 18, 2019) [https://perma.cc/BFA7-9FMR].
[20]. Thirty Prince canvases were at issue. Twenty-five were declared by the Second Circuit Court of Appeals to be fairly made; the case was remanded for further consideration of the other five. The dispute was settled for an undisclosed sum of money before a retrial occurred. Randy Kennedy, Richard Prince Settles Copyright Suit with Patrick Cariou Over Photographs, N.Y. Times: ArtsBeat (Mar. 18, 2014, 6:23 PM), https://artsbeat.blogs.nytimes.com/2014/03/18/richard-prince-settles-copyright-suit-with-patrick-cariou-over-photographs.
[21]. For an extensive review of his work through 2007, see Nancy Spector et al., Richard Prince (2007). The book was published by the Guggenheim Museum in New York City on the occasion of a large retrospective exhibition of his creations in 2007–2008 that later traveled to the Walker Art Center in Minneapolis and the Serpentine Gallery in London. The intensity of his appropriation has eased off a bit in some recent work. See Roberta Smith, Richard Prince’s New, Late Style is One of His Best, N.Y. Times (Nov. 29, 2018), https://www.nytimes.com/2018/11/29/arts/design/richard-prince-gagosian-chelsea.html. For a broader discussion of appropriation art generally, see Richard H. Chused, The Legal Culture of Appropriation Art: The Future of Copyright in the Remix Age, 17 Tul. J. Tech. & Intell. Prop. 163 (2014).
[22]. Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013).
[23]. When starting this project, I also planned to discuss Sixto Núñez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000). Núñez involved pictures of Joyce Giraud taken without clothing that were displayed in the news media after she became Ms. Puerto Rico and just before she was scheduled to fly off to participate in the Miss Universe Pageant. A professional photographer, Sixto Núñez, took the pictures for a portfolio used on behalf of Giraud to obtain modeling jobs. Núñez, owner of the intellectual property rights in the images, filed a copyright action against the media, but lost on fair use grounds. Giraud’s career and the story of the creation and later publication of the images at issue in the case is told in Matthew Mitchell, The Joyce of Life, Oyemag (Feb. 7, 2003), [https://perma.cc/KB79-AGJR?type=image]; Leslie Pandey, Joyce Giraud’s Miss Universe Photo Scandal: What Happened?, Wetpaint (Nov. 18, 2013), http://www.wetpaint.com/joyce-girauds-miss-universe-scandal-794941 [https://perma.cc/ZZD2-KNG2]; Lance Oliver, Controversy Over Pageant Gets Ugly, Orlando Sentinel (Nov. 17, 1997), https://www.orlandosentinel.com/news/os-xpm-1997-11-17-9711170248-story.html [https://perma.cc/28JE-JND8]. When it became public that Giraud posed nude, controversy arose in Puerto Rico over whether it was appropriate for Giraud to represent the island in a pageant as important as Miss Universe. Some of the images were published in a newspaper and broadcast on a television station during a panel discussion about the controversy. The opinion of the First Circuit says very little about the history of the photographs—how they were released or what the reaction of Joyce Giraud was. At first glance, it appears that her career was jeopardized by revelation of the images—much like the Rastafarians were harmed by the work of Prince. But in the unpublished trial court’s summary judgment opinion, also finding against Núñez, it was revealed that Giraud actually showed some of the images to the media in the process of a media campaign to retain her crown and go off to the Miss Universe pageant. Núñez v. Caribbean Int’l News Corp., No. 3:98-cv-2213-JP, at 14 (D.P.R. Sep. 27, 1999). That hardly portrays her as a soul deeply harmed by the interactions of a copyright dispute between her photographer and the media.
[24]. Richard Prince, Writings: The Picture Kit 1978, West 11th St. NYC, Richard Prince (1978), http://www.richardprince.com/writings/prior-availability (last visited June 11, 2019) [https://perma.cc/P436-2K2R]. An equally interesting statement called Prior Availability is posted on the same web page. Id.
[25]. See, e.g., infra Part C.
[26]. This is an educated guess by Charles Price, who is quite familiar with Jamaica’s landscape. Email from Charles Price to the author (May 15, 2019).
[27]. Marley was born in 1945 and died of cancer at the age of thirty-six in 1981. Leonard E. Barrett. Sr., The Rastafarians 214–20 (1997); Barry Chevannes, Rastafari: Roots and Ideology 169–71 (1994); Jo Thomas, With Pride and Music, Jamaicans Bury Bob Marley, N.Y. Times, May 22, 1981, https://www.nytimes.com/1981/05/22/world/with-pride-and-music-jamaicans-bury-bob-marley.html.
[28]. Telephone conversation with Charles Price, a faculty member in the Anthropology Department of the University of North Carolina and author of the important work Charles Price, Becoming Rasta: Origins of Rastafari Identity in Jamaica (2009).
[29]. See Price, supra note 27 for a much more thorough and comprehensive description of Rastafarianism; See also Leonard E. Barrett, Sr., The Rastafarians (1997); Barry Chevannes, Rastafari: Roots and Ideology (1994).
[30]. Cariou, supra note 18, at 163. On the following page he wrote, “First of all, thanks to the Rastas in this book for allowing me into their lives and showing me what rightfulness and strength is all about.”
[31]. Id. at 150, 154. The male dominated cultural nature of the Rastafarian community pictured by Cariou makes it highly likely that these images were taken only after obtaining permission from the male head of the household. See Price, supra note 27 at 16–17. See also supra note 26.
[32]. The frequency of use alone suggests that labeling Prince’s work as fair use was misplaced.
[33]. Out of respect for Cariou’s treatment of the Rastafarians and the community’s belief structure I have elected not to display any of Prince’s canvases to exemplify my points. If you feel a need to see some of them, the web awaits. All of the Prince works at issue in the litigation are available online. An index with links to each Prince image and the Cariou photographs used in each may be found at http://www.ca2.uscourts.gov/do-cs/opn1197/11-1197apx.html (last visited Apr. 29, 2019) [https://perma.cc/3CZ4-SFJQ]. Of the thirty images in the list, twenty-five were found to be fair uses in the circuit court opinion. The five remanded for further consideration are the first, second, third, fifth, and seventeenth on the list. The regal image pictured in the text is Cariou, supra note 18, at 118.
[34]. Email from Charles Price to the author (Apr. 30, 2019).
[35]. Just one example from the same circuit court makes the point well—Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992). Jeff Koons’ reuse of a single photograph taken by Art Rogers and marketed on a greeting card was held unfair. Koons is said to have torn off the copyright notice and arranged for life-size versions of the image with a few added features to be carved by Italian craftsmen and painted in garish colors. See Rogers v. Koons, 751 F. Supp. 474, 476 (S.D.N.Y. 1990). The reworking of a sentimental image of a man and a woman with a row of puppies in their laps into an arguably humorous comment on the pose is surely much closer to parody than anything Prince did in Cariou. Louise Harmon makes that point about Jeff Koon’s parodic intentions in an especially powerful fashion. See Louise Harmon, Law, Art and the Killing Jar, 79 Iowa L. Rev. 367 (1994).
[36]. See supra notes 21–23 and accompanying text.
[37]. Critical commentary on use of an objective transformative fair use theory has appeared in the literature. See Ben Picozzi, What’s Wrong with Intentionalism? Transformative Use, Copyright Law, and Authorship, 126 Yale L.J. 1408 (2017); See also Subotnik, supra note 15.
[38]. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
[39]. 471 U.S. 539 (1985).
[40]. Gerald R. Ford, A Time to Heal: The Autobiography of Gerald R. Ford (1979).
[41]. Harper & Row, 471 U.S. at 542–43.
[42]. Id. at 551–54. After significant criticism of the decision by media, Congress added this sentence to the fair use section of the copyright code, 17 U.S.C. § 107: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” It does not bar consideration of the prepublication status of a work but simply states that it should not be any more decisive than other factors. In the long run this has had a minimal impact on the run of cases, unless you consider the rise of transformativeness to be a consequence of the outcome of The Nation case.
[43]. Harper & Row, 471 U.S. at 562.
[44]. 376 U.S. 254 (1964).
[45]. 385 U.S. 374 (1967).
[46]. False light involves allegations that statements or other presentations were made claiming that a person had a belief that she did not hold, took an action not actually carried out, or had a history or characteristics that were inaccurate.
[47]. Arlen W. Langvardt, Musicians, Politicians, and The Forgotten Tort, 27 Fordham Intell. Prop. Media & Ent. L.J. 429, 480–95 (2017).
