Bill Patry posts his thoughts on this symposium last week regarding appropriation art, which included his "public dialogue" with Second Circuit Judge Pierre Leval on the pertinent copyright issues. He emphasizes that the typical dispute in this area is "intra-mural, pitting one artist against another," and says that "for me and I believe Judge Leval, fair use has done, on the whole, an admirable job of mediating between the two typical opposing forces in art appropriation: the artist whose work has been appropriated and the artist who does the appropriating."
That's true enough, but I thought a better sense of the bottom line was conveyed by Judge Leval when, after giving some general remarks on copyright and fair use, he asked, "So what's it all mean for appropriation art," then paused . . . and kind of threw up his hands and said: "I don't know." He went on to say the law in this area is "astonishingly unpredictable" and that it's "very hard to know what the law is." He said "almost any question" in this area is "very difficult to answer" and added that he doesn't know of any area of law where there are so many reversals by the appellate courts.
Judge Leval has himself tried to bring some order to the chaos of fair use doctrine with his influential "transformative use" test, but I've never felt that standard was particularly useful (I don't think an artist can ever truly be confident that a court will agree that a given use is "transformative"; it doesn't reduce the level of uncertainty for artists to any appreciable degree). At the panel, he also emphasized that there are hard cases in lots of other fields too (he mentioned child custody and death penalty cases as examples); so perhaps, as Professor Patry says in his post, there's no solution other than to tackle each claim of fair use on a case-by-case basis. (Though, as I've mentioned before, there are other proposals out there.)
In any event, a very interesting panel all around, and Virginia Rutledge is to be thanked for organizing it.