Friday, April 26, 2013

A More Positive Take

You may remember the fantastic piece on art and copyright by artist/lawyer Alfred Steiner that I linked tocouple months ago.  I asked him what he thought about the Second Circuit’s decision in Cariou v. Prince, and this is what he had to say:

Before the decision arrived yesterday, my best guess was that the Second Circuit would cite the District Court’s errors (e.g., considering all 30 works as a whole instead of piece-by-piece) and send the case back there for further review.  This is what dissenting Judge Wallace wanted to do, and clearly would have been the judicially conservative move.

Instead, the Second Circuit took a more active approach, providing additional guidance as to how courts should decide when a use is fair.  How much more guidance is the question, and as Donn suggested in his initial post on the topic, it may be quite little.  But given the inherently case-by-case nature of fair use determinations, at the very least the court has provided one more data point against which artists may compare their own work to decide whether they’re in the clear.  I, for one, believe that I’m taking considerably less risk in making my collage-based watercolor works post Cariou.

In my mind, the most important points from the decision are the following:

1.  The secondary work doesn’t need to comment on the first work.

2.  The artist doesn’t have to articulate a critical defense of the secondary work for a finding of fair use, as previously suggested by the Rogers v. Koons and Blanch v. Koons decisions.

3.  What is critical is how the work appears to a reasonable observer, which requires the court only to consider the first work and the secondary work side by side.

4.  Differences in target audiences matter.

5.  The court will continue to focus on actual derivative uses by the owner of the first work, not all potential derivative uses.

These are all positive developments (or at least restatements) from the perspective of an artist whose practice includes using pre-existing work.

But I believe the court made some mistakes and missed some opportunities.  

For one thing, the court has arguably made the second fair use factor irrelevant.  The second factor--the nature of the copyrighted work--asks how close the first work is to the core of copyright protection.  Expressive works are given more protection than factual works--think Harry Potter versus a biography of Abraham Lincoln.  Here, the court held that because Cariou’s works are “creative and published,” this factor weighs against a finding of fair use.  (We can ignore the “published” part here because unpublished works get even stronger protection, so the court would have to find that a creative and unpublished work would weigh even more strongly against fair use, even though, as Pierre Leval has argued, providing this added protection for unpublished works in the fair use analysis has no logical support in the framework of copyright law.)  But all copyrighted works are creative by definition, which means that the second factor always weighs against a finding of fair use. Instead of reading this factor out of the analysis, the court should have weighed it in Prince’s favor because Cariou’s photographs are primarily documentary (and thus factual) not primarily expressive (like Cindy Sherman’s grotesques).

But a larger problem with the court’s decision is posed by its split of the works into 25 works that are fair use as a matter of law and five others that may or may not be fair use.  Although I do not think that Judge Wallace’s admonition against courts “constitut[ing] themselves final judges of the worth of [a work]” is apt--courts have no need to determine the worth of an artist’s work in this analysis--I agree with Wallace that the court erred in splitting the works into two groups.  How is Judge Batts supposed to decide whether the five remaining works are fair use, especially if all she needs to do is compare the works side-by-side, which the Second Circuit could do just as easily?

As I’ve argued before, if the court had simply recognized the essential difference between one-of-a-kind objects and mass-produced objects, it could have held that this fact supported a finding of fair use with respect to all 30 works.  But according to the court’s decision, it now seems that Prince may be entitled to make T-shirts and coffee mugs featuring any of the 25 vindicated works.  That seems about as fair to me as allowing copyright holders to dictate which one-of-a-kind objects people are entitled to create, even when those objects have no plausible relationship to copyright holders’ economic interests.

--Alfred Steiner is an artist and a lawyer whose work often poses questions about copyright. One such work, Erased Schulnik (2010) is appearing in an exhibit curated by Turner Prize-winning artist Mark Leckey called TheUniversal Addressability of Dumb Things, which opens today at Nottingham Contemporary in Nottingham, England.