Appeals Court Overturns Richard Prince Ruling In Victory For Fair Use & Appropriation Art

from the that's-more-like-it dept

Thu, Apr 25th 2013 1:11pm — Leigh Beadon

It was over a year ago when we last wrote about Richard Prince, the famous appropriation artist who was sued by photographer Patrick Cariou, whose photos Prince had used in various collage paintings. In a very troubling ruling, the judge in that case rejected Prince's fair use defense in a summary judgement, and ordered all 30 relevant works be turned over to Cariou to be sold or destroyed as he saw fit. This was a shock to the art world, where appropriation art has been a popular and highly-respected art form for years, with Prince as one of its best-known practitioners.

Today, we get some good news: the appeals court has overturned the decision (pdf and embedded below) and found 25 of Prince's paintings to be fair use, while sending the other five back to the lower court so the fair use defense can be properly considered rather than summarily dismissed. There are a few oddities in the details, but overall this is a fantastic ruling that includes some excellent language about fair use.

One of the most disturbing parts about the earlier ruling was that the lower court completely dropped the ball on its interpretation of fair use, incorrectly stating that in order to qualify for fair use, a new work must be commenting on or criticizing the original work. That's plainly wrong, and the appeals judge set the matter straight:

The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Cariou, 784 F. Supp. 2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.” Campbell, 510 U.S. at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work 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. Id. at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.”

Of course, even this judge seems to have a few facts muddled, considering "parody and satire" cannot be casually linked together like that in the context of U.S. copyright law — one is a well-established and codified form of fair use, the other enjoys no such protection. In fact, the initial court's talk of comment and criticism seems to have stemmed from confusion between the standards for fair use in general, and the standards for parody specifically (where commenting on the original is indeed a requirement).

There's more good stuff about fair use, including lots of citations, to be found in the ruling, which should be read by anyone who still claims that copyright is a natural right or that stronger copyright always means more creativity:

The purpose of the copyright law is “[t]o promote the Progress of Science and useful Arts” U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990) (hereinafter “Leval”). Fair use is “necessary to fulfill [that] very purpose.” Campbell, 510 U.S. at 575. Because “‘excessively broad protection would stifle, rather than advance, the law’s objective,’”

...

The “ultimate test of fair use ... is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ ... would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141

Since the court goes through a full fair use analysis, there's lots of good stuff on issues other than the transformative one too. The ruling clarifies that neither the "commercial use" aspect nor the "amount of work copied" aspect of fair use is determinative, and explains why Prince's work qualifies for fair use even though it is commercial and often uses Cariou's photos in their entirety.

But there's still a somewhat problematic side to this ruling, and that's the aforementioned distinction of five works from the rest. It brings us back to a problem we talked about a lot last year when this case was in the courts: judges playing art critic. The fact that fair use is so vague means that, every time it's tested, it starts to turn into an argument about whether a piece of art is "good" or "worthwhile" — a subjective standard if there ever was one. Among the five that have been sent back to the lower court is the most famous of them all (Cariou original on the left, Prince work on the right):

The ruling draws a distinction between that and one of the other works that it declared to be fair use (again Cariou left, Prince right):

In that comparison, it's not hard to see how the latter example changes the original "more" than the former. But that's where the obviousness ends. The true challenge is drawing that line, which the appeals court was not prepared to do:

As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.”

The problem is that I don't think anyone can say with "certainty" what the meaning of a piece of art is, and that includes the artist themselves. In some cases, it seems like the most sensible approach would be to rely on experts — in this case the many galleries around the world that have showcased Prince's art, and the many critics who have praised it (or, for that matter, condemned it — a new meaning doesn't have to be something people like). Of course, there are potential problems there, too: many an important art movement was rejected by the established community at its outset.

Overall, the most important part of this ruling is that it overturns the ridiculous assertion that comment and criticism is the only form of fair use — but other than that, it fails to provide much clarity. I'm not certain any court could. There's no way to guess what the lower court will decide once it goes through the fair use test with the remaining five works, to the point that the question is almost entirely a matter of opinion, and it's not hard to envision a ruling in either direction. Whenever you have that much uncertainty on a point of law, something needs to be fixed.

Richard Prince Ruling (PDF)Richard Prince Ruling (Text)

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Filed Under: appropriation art, fair use, patrick cariou, richard prince

71 Comments

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Reader Comments

The First Word

“

Re: Why do artists steal?

There's a long, nuanced and interesting answer to this question. Much of it is contained in the amicus brief attached to the appeal, which is well worth reading.

The short answer is:

a) Artists who do ask are often denied permission. Copyright was never meant to be used as a tool of censorship, or to suppress other, new creativity, but that's what happens.

b) "Steal" is a loaded and inaccurate term. Since the beginning of time artists have used, reused, modified, and built upon one another's work. To use the famous example of Manet's Olympia, the painting could not exist without Titian; Titian in turn "stole" from both Raphael and Raimondi; and Raimondi "stole" from an unknown classical Roman sculptor. That's how creativity works. It cannot function in a vacuum. It cannot thrive in a permissions culture.

—Malsperanza

”

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Rikuo (profile), 25 Apr 2013 @ 1:24pm

"�[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.�

So Blue, bob...are you going to yammer on about how copyright's purpose is somehow supposed to be about enriching the artist? Or that the artist should have total control over the work?
[ link to this | view in chronology ]
- Anonymous Coward, 25 Apr 2013 @ 1:32pm
  
  Re:
  Artists shouldn't steal from other artists, ever. All artwork should be 100% original, all the time, or else art will surely die.
  
  And I should know because I'm a lawyer.
  [ link to this | view in chronology ]
  - Anonymous Coward, 25 Apr 2013 @ 2:04pm
    
    Re: Re:
    So you are an artist after all, an scam artist but one none the less.
    [ link to this | view in chronology ]
    - Anonymous Howard (profile), 26 Apr 2013 @ 5:25am
      
      Re: Re: Re:
      You might want to check your sarcasm-O-meter
      [ link to this | view in chronology ]
madasahatter (profile), 25 Apr 2013 @ 2:24pm

Overall Sounds Good
Fair use is not easy to define precisely but the Appeals Court got the basics correct. Is the work in question a straight copy or does it have its own expressive merit that stands as separate (derivative) work. And they noted that copyright exists to promote arts and sciences so one should lean towards a broad definition of fair use.
[ link to this | view in chronology ]
Anonymous Coward, 25 Apr 2013 @ 2:33pm

so....
someone got angry that a guy took a picture he made put three blue dots on it and a guitar and decided to sue?

were all going to hell...
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- tomxp411 (profile), 25 Apr 2013 @ 2:49pm
  
  Re: so....
  Say I'm a photographer. I make money by selling my pictures or by being paid to take pictures.
  
  Someone else sells pictures I took.
  
  That is not about getting mad, it's about the fact that if the photo is my property, I should be the one getting paid for it, not someone else who appropriated it.
  [ link to this | view in chronology ]
  - Leigh Beadon (profile), 25 Apr 2013 @ 2:55pm
    
    Re: Re: so....
    Prince bought multiple copies of Cariou's book to clip out the photos he used for his work. Cariou did get paid.
    [ link to this | view in chronology ]
    - tomxp411 (profile), 25 Apr 2013 @ 4:15pm
      
      Re: Re: Re: so....
      This was a 1:1 transaction? In other words, for every copy Prince made, he bought one book?
      
      Then yes - I can see how this becomes a lot less clear. At this point, it's not about getting paid any more, it's about creative control - which people around here don't seem to like very much. =)
      [ link to this | view in chronology ]
      - Leigh Beadon (profile), 25 Apr 2013 @ 4:53pm
        
        Re: Re: Re: Re: so....
        Presumably there are prints and reproductions made of Prince's work, so no ultimately it is not 1:1.
        [ link to this | view in chronology ]
tomxp411 (profile), 25 Apr 2013 @ 2:45pm

Why do artists steal?
Is it really that hard to ask permission before using someone else's work, especially if you plan to sell it?

Look at Weird Al Yankovic: he's made a principle of always getting permission from the songwriters he parodies. In fact, he even pays them royalties - even though he doesn't have to...

So what is wrong with getting permission, and if you're denied, moving on to something else?
[ link to this | view in chronology ]
- Leigh Beadon (profile), 25 Apr 2013 @ 2:53pm
  
  Re: Why do artists steal?
  Because it's a limitation on freedom and artistic expression -- which means the burden of proof lies on those who want it in place. The question is not what's wrong with limiting speech -- it's what's gained by it? What justifies it?
  [ link to this | view in chronology ]
- Malsperanza, 25 Apr 2013 @ 3:40pm
  
  Re: Why do artists steal?
  There's a long, nuanced and interesting answer to this question. Much of it is contained in the amicus brief attached to the appeal, which is well worth reading.
  
  The short answer is:
  
  a) Artists who do ask are often denied permission. Copyright was never meant to be used as a tool of censorship, or to suppress other, new creativity, but that's what happens.
  
  b) "Steal" is a loaded and inaccurate term. Since the beginning of time artists have used, reused, modified, and built upon one another's work. To use the famous example of Manet's Olympia, the painting could not exist without Titian; Titian in turn "stole" from both Raphael and Raimondi; and Raimondi "stole" from an unknown classical Roman sculptor. That's how creativity works. It cannot function in a vacuum. It cannot thrive in a permissions culture.
  [ link to this | view in chronology ]
- Anonymous Coward, 25 Apr 2013 @ 6:44pm
  
  Re: Why do artists steal?
  For the obvious reason that supposed "rightsholders" often make it a bitch for those who take the time to actually ask permission.
  
  "Weird Al" doesn't only get permission from songwriters; if the labels decide to bitch for whatever-the-fuck reason he can't put songs in an album either. "Yoda", "You're Pitiful" and "Perform This Way" nearly didn't get published for those reasons. For that matter, "Weird Al" was told by The Kinks' label that they refused to let him parody "Lola". Years later he met the lead singer and asked why - the lead singer said that he liked the idea. The label was bullshitting.
  
  So, yes. It really is that hard to ask permission. "Weird Al" does it because he's awesome but this is a world where nice guys very usually don't win.
  [ link to this | view in chronology ]
  - The Groove Tiger (profile), 26 Apr 2013 @ 8:08am
    
    Re: Re: Why do artists steal?
    Weird Al also released a Gaga parody for free on YouTube when he was told by her manager that he didn't have the permission. He KNEW he didn't need it, he was just being nice.
    [ link to this | view in chronology ]
- Anonymous Coward, 26 Apr 2013 @ 5:13am
  
  Re: Why do artists steal?
  Yes, it really is that hard to ask permission. Creativity is "of the moment" and if you waste time finding the name of the person who did the photo or whatever you're basing your work on, trying to find a phone number or email address or snail mail address to somehow contact them, then asking, then waiting patiently for the person you've asked to eventually get back to you and not bothering to act on your impulse because you might not get permission so it will all be a waste of time, you've lost the creative spark. And anyway, artists, who are usually rebels at heart, have never before had to do this asking permission thing that our current "Mother, May I?" society seems to be moving towards in all of human history, so it does seem to throw a monkey wrench into the machinery to suddenly demand that asking permission must part of the creative process.
  
  Yes, let's look at Weird Al, I do love the guy, but he runs into vexing problems with permission all the time: an artist will suddenly made believe he didn't give permission because of embarrassment (Amish Paradise), or a well-meaning agent or assistant of a famous star tell him he's going to ask and then not bother to ask, then tell him she said "no" (there was a very annoying bit of a brouhaha with a Lady Gaga song where Al released the song without permission and only got permission when she heard it later.) Also, Weird Al is famous and 99.9% of all artists are not famous at all and will get the brush-off and completely ignored from the very first "may I?" on.
  
  Plus, sometimes people who are established believe, true or false, that it is not in their financial interests to encourage very talented people who are NOT established, and established artists refusing to give permission for works that have entered the culture and pinged with talented people is a great way to stagnate your culture. If American artists had refused to let the Beatles creatively work off of American songs, we'd have had no British invasion. Conversely, if the Beatles had refused to let American and other British artists creatively work off of their songs, we'd have had no great music revolution of the 60s. If Paramount had clamped down on the fans who gave conventions and wrote fanfiction in the early 70s (as I'm totally sure they'd have done in today's legalistic climate), there'd have been no great Star Trek cash cow for them to milk to this day. Because nobody asked nobody for permission back then, they just *DID THINGS* and everybody prospered.
  
  So that is what's wrong with getting permission. And if an artist is denied, moving on to something else can be a problem, because sometimes creativity drives itself, and it's going to get expressed one way or another, with or without permission.
  [ link to this | view in chronology ]
  - The Groove Tiger (profile), 26 Apr 2013 @ 8:11am
    
    Re: Re: Why do artists steal?
    The hilarious part is that the asshole manager demanded to read the lyrics before giving permission. Then demanded to see the full finished song before giving permission. Then refused permission.
    
    Al hadn't even written the song yet. Basically, the son of a bitch forced him to do it in a hurry (or at all) before saying "NOPE".
    [ link to this | view in chronology ]
- Anonymous Coward, 26 Apr 2013 @ 9:11am
  
  Re: Why do artists steal?
  and what's so hard about having your works copied without permission? If you don't like it simply don't create and publicly distribute the work and move onto something else. No one is forcing you to create and distribute a work. But don't impose restrictions on me just because you don't want something copied. Get lost and find something else to complain about.
  [ link to this | view in chronology ]
- Anonymous Coward, 26 Apr 2013 @ 9:25am
  
  Re: Why do artists steal?
  "Look at Weird Al Yankovic: he's made a principle of always getting permission from the songwriters he parodies."
  
  I don't care what someone else's arbitrary principles are. I don't care for IP law at all and I want it abolished. Get rid of it completely.
  [ link to this | view in chronology ]
- art guerrilla (profile), 26 Apr 2013 @ 11:59am
  
  Re: Why do artists steal?
  weird al is easy to like for a lot of reasons, but i REALLY disagree with his approach to this...
  i *understand* why he does it, but he is ultimately cutting his own throat, and the others who look to do similar take-offs and parodies...
  he is -whether intentionally or not- playing *right* into the hands of the copyright maximalists; now, not only are their artificial and made up rights 'confirmed' by his payoff, but it hamstrings every one coming after him who go to do the same thing, and the copyright maximalists beat them over the head with the hammer weird al gave them voluntarily ! ! !
  
  art guerrilla
  aka ann archy
  eof
  [ link to this | view in chronology ]
RonKaminsky (profile), 25 Apr 2013 @ 2:46pm

Feature, not bug
The whole strength of the legal system is that judges are human and are largely free to use their, er, judgment to try to help the court system to, at least on average, dole out decisions which seem just.

That doesn't mean that other features of the system (e.g., the ridiculously high cost of even getting to court; laws being passed without the public's wellbeing in mind rather than that of lobbying special interest groups; ...) don't cause distortions and shouldn't be reformed. It just means that one of the things you criticize isn't, in the final analysis, all that bad.
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- Leigh Beadon (profile), 25 Apr 2013 @ 2:49pm
  
  Re: Feature, not bug
  Well, I agree that it's important for there to be room for human judgement in the legal system -- however, when things reach the point where there's virtually no way to know if you're breaking the law or not, that's a problem. And that's the situation for appropriation artists. Keep in mind that fair use is not something you can proactively establish -- you have to wait until you are sued, and get a lawyer.
  [ link to this | view in chronology ]
  - tomxp411 (profile), 25 Apr 2013 @ 2:50pm
    
    Re: Re: Feature, not bug
    Keep in mind that fair use is not something you can proactively establish -- you have to wait until you are sued, and get a lawyer.
    
    Or you can get permission to use the work. Then there are no lawyers and now lawsuits.
    
    But that wouldn't be the trendy, risky thing to do.
    [ link to this | view in chronology ]
    - Anonymous Coward, 25 Apr 2013 @ 3:11pm
      
      Re: Re: Re: Feature, not bug
      The public has to ask permission to collage? I'm no artist but that doesn't sound right.
      [ link to this | view in chronology ]
      - tomxp411 (profile), 25 Apr 2013 @ 4:09pm
        
        Re: Re: Re: Re: Feature, not bug
        If you're selling the collage down at the local art gallery? Then yes.
        
        If you're just going to put it up on your bedroom wall and moon over all the topless shots of that werewolf guy and that vampire guy, then that's fair use.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 25 Apr 2013 @ 4:13pm
        
        Re: Re: Re: Re: Re: Feature, not bug
        If you're selling the collage down at the local art gallery? Then yes.
        
        This is not true.
        [ link to this | view in chronology ]
        
        tomxp411 (profile), 25 Apr 2013 @ 4:18pm
        
        Re: Re: Re: Re: Re: Re: Feature, not bug
        way to support an argument, there.
        
        I'm pretty sure I can't use your photo to make 1000 collages, sell those 1000 collages and keep the money.
        
        Now if I paid for 1000 copies of your photo, that's a different story... you probably can't stop me. But if I made 1000 copies, I am having a hard time seeing how that's legit. (Keeping in mind that a collage is not really transformative.)
        [ link to this | view in chronology ]
        
        Anonymous Coward, 25 Apr 2013 @ 4:29pm
        
        Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        So this is illegal?
        
        http://www.artnet.com/auctions/artists/richard-prince/untitled-de-kooning-2
        
        Better call the cops.
        [ link to this | view in chronology ]
        
        Leigh Beadon (profile), 25 Apr 2013 @ 4:54pm
        
        Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        I'm pretty sure I can't use your photo to make 1000 collages, sell those 1000 collages and keep the money.
        
        If it's a collage that is protected by fair use because it is a transformative work, then yes you can.
        [ link to this | view in chronology ]
        
        tomxp411 (profile), 25 Apr 2013 @ 4:57pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Maybe our definitions of collage differ... but regardless, AC up there is just trolling, and so I'm going to stop feeding him. =)
        [ link to this | view in chronology ]
        
        Leigh Beadon (profile), 25 Apr 2013 @ 5:06pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        AC may be being rather curt, but so far he's 100% correct.
        [ link to this | view in chronology ]
        
        tomxp411 (profile), 25 Apr 2013 @ 5:17pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Of course he's correct when it comes to obvious cases of fair use.
        
        I never argued otherwise!
        
        what did I say?
        
        "Or you can get permission to use the work. Then there are no lawyers and now lawsuits."
        
        That's also 100% correct. If you get permission to use a work, they can't sue you.
        
        I never said you NEED to get permission. I said that permission protects your work. AC was clearly just trying to hijack the discussion... and he succeeded.
        [ link to this | view in chronology ]
        
        Leigh Beadon (profile), 25 Apr 2013 @ 5:19pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        I never said you NEED to get permission.
        
        Well, yeah, you did -- look at the question you were asked, and your answer, again. But in any case I'm glad that wasn't what you intended.
        
        As far as your point that permission works, that's fine, but I don't think putting a permission gateway on artistic output is a good idea.
        [ link to this | view in chronology ]
        
        tomxp411 (profile), 25 Apr 2013 @ 5:32pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        It's probably because we're disagreeing on the concept of what a collage is.
        
        I see it as a collection, not a unique work in and of itself... what that guy linked to wasn't what I think of when I think of a collage.
        
        Now something like this:
        http://womenvitamins.net/Home/heARTworkgallery/tabid/93/Default.aspx
        
        I totally get how the components of that would be fair use, and I am not in the least saying that you have to seek permission or pay royalties for that.
        
        So I guess my bad for not following someone else's definition of a term.
        [ link to this | view in chronology ]
        
        dennis deems (profile), 26 Apr 2013 @ 5:58am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        If your aim is to be understood, then yes, it helps to use words according their widely accepted definitions and established usage. Your "concept of what a collage is" is nothing I have ever encountered.
        [ link to this | view in chronology ]
        
        Leigh Beadon (profile), 25 Apr 2013 @ 4:57pm
        
        Re: Re: Re: Re: Re: Feature, not bug
        If you're selling the collage down at the local art gallery? Then yes.
        
        If you're just going to put it up on your bedroom wall and moon over all the topless shots of that werewolf guy and that vampire guy, then that's fair use.
        
        It is a common misconception that fair use cannot be commercial. That is not true. In fact, another portion of this ruling directly addresses that:
        
        This factor must be applied with caution because, as the Supreme Court has recognized, Congress �could not have intended� a rule that commercial uses are presumptively unfair. Campbell, 510 U.S. at 584 Instead, �[t]he 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.� Id. at 579. Although there is no question that Prince�s artworks are commercial, we do not place much significance on that fact due to the transformative nature of the work.
        [ link to this | view in chronology ]
        
        tomxp411 (profile), 25 Apr 2013 @ 5:10pm
        
        Re: Re: Re: Re: Re: Re: Feature, not bug
        I wasn't talking about fair use.
        
        My point was that if you get get permission before using someone else's work, then they can't sue you later.
        
        Having said that, I would not expect a teenage girl to ask permission to put up 1000 images of her favorite movie star on her bedroom wall.
        [ link to this | view in chronology ]
        
        Leigh Beadon (profile), 25 Apr 2013 @ 5:14pm
        
        Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        I wasn't talking about fair use.
        
        Hmm... but what you said before was:
        
        If you're selling the collage down at the local art gallery? Then yes [you have to ask permission]
        
        and:
        
        I'm pretty sure I can't use your photo to make 1000 collages, sell those 1000 collages and keep the money.
        
        Those statements are not true. And the reason they're not true is fair use - whether or not fair use is what you were talking about.
        [ link to this | view in chronology ]
        
        tomxp411 (profile), 25 Apr 2013 @ 5:24pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        And if the work isn't fair use? You'll get sued...
        
        If you get permission, you won't get sued.
        
        Maybe I don't know what a collage is... because I always thought it was basically just pasting a bunch of pictures on a board or on a wall for display. That doesn't say "transformation" to me. It says "collection."
        
        Now a mosaic? Yeah, that can be transformative. The photo that the AC linked? I'd call that a mosaic. Different thing.
        
        And regardless: isn't getting permission still desirable?
        
        Is there ever a situation where getting permission is a bad thing? Where you should not ask permission if you intend to exploit the work commercially? I can't think of any.
        [ link to this | view in chronology ]
        
        Leigh Beadon (profile), 25 Apr 2013 @ 5:40pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Is there ever a situation where getting permission is a bad thing? Where you should not ask permission if you intend to exploit the work commercially? I can't think of any.
        
        It is an unnecessary roadblock to an artist's freedom of expression, and thus I say: every situation is one in which getting permission is a bad thing. I believe there is an economic role for copyright in certain types of reuse, but I don't believe permission has any place in the world of art and culture.
        
        Even in this situation, imagine what permission would have done. Prince was out one day, found a copy of this photography book, was inspired, took it home and starting clipping out bits of it to use in highly transformative original works of his own. That's the artistic process.
        
        Should he have had to stop, put his inspiration on hold, look up the photographer's contact information, get in touch, wait for a response, and hope it's "yes"? Should he go ahead and make his work, but be risking a huge amount of his time as a career artist on the possibility that permission will be denied? And why should he do any of that simply because, though his intention is to create a transformative, original piece that is protected by fair use, he is unable to know for sure whether his work will qualify or not because the law is unclear?
        
        None of that is in keeping with the goals of copyright, or the natural means of artistic and cultural proliferation in general.
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        jupiterkansas (profile), 26 Apr 2013 @ 12:19am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        First, often an artist doesn't know if what they're creating will be good until it's done. A little late to ask permission after that.
        
        Second, a collage is art because putting two images next to each other, even if you don't change the images, can alter the whole meaning of the original images. Like putting a photo of Hitler next to a photo of Charlie Chaplin - the juxtaposition changes the meaning of the images. It's a new idea, and art is about ideas, not craftmanship.
        
        Third, artists have been using other artists images in their work since the beginning of time. You learn how to make art by copying other art. This was never a problem until mechanical reproductions made copying easy. The only real problem is if you copy someone's work and try to pass it off as the other person's. That's plagarism.
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        Anonymous Coward, 26 Apr 2013 @ 1:31pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        The only real problem is if you copy someone's work and try to pass it off as the other person's. That's plagarism.
        
        Actually, that's forgery. Trying to pass it off as your own is plagiarism.
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        tomxp411 (profile), 26 Apr 2013 @ 8:29am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        he is unable to know for sure whether his work will qualify or not because the law is unclear?
        
        Well,that goes back to my original point, doesn't it?
        
        Getting permission to use a work is unambiguous. If I say, "yes you can do that," then it's impossible for me to come back and sue later.
        
        Now I'm not saying permission is easy to get. I'm not even saying it's practical. I'm just saying that it does clear up the ambiguity quite nicely, doesn't it?
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        Leigh Beadon (profile), 26 Apr 2013 @ 9:57am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        I'm just saying that it does clear up the ambiguity quite nicely, doesn't it?
        
        It's one way to partially clear up the ambiguity. Not "quite nicely" no -- plenty of people have attempted to reverse their stance on permission, or other interested parties have turned up and tried to claim they have rights too, or a tiny oversight in getting the correct legal permission has sunk an entire work. You can get permission in all good faith and still end up in court. You might win, but just being dragged into court is enough to destroy a lot of artists, which means many can't afford to even put up a fight.
        
        But, frankly, none of that matters. You claim that your only original point about permission was that it clears up the ambiguity, but that's not true. You've been openly mocking people who don't get permission this whole time -- condescendingly claiming that the only reason not to is to be "risky and trendy."
        
        Moreover, whatever point you were trying to make, you have asked the same question several times: "what's wrong with getting permission?"
        
        Well, we've answered. A lot of things are wrong with getting permission.
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        tomxp411 (profile), 26 Apr 2013 @ 12:57pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Well, we've answered. A lot of things are wrong with getting permission
        
        and by your own words
        
        "Keep in mind that fair use is not something you can proactively establish -- you have to wait until you are sued, and get a lawyer."
        
        So I guess an artist that relies on other people's work is screwed either way.
        
        Anyway, I'm done. I see the whole topic is a lot more complicated than it ought be - of course, it always is when lawyers are involved. I'm starting to think that our entire legal system is nothing but an exercise in keeping lawyers in business. I'm glad I decided not to go to law school after all. Not only couldn't I afford it at the time, but I don't think I would have ever passed "Suppressing your conscience 101."
        
        It's been fun discussing this with you, Leigh. I hope to cross pens some time in the future. =)
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        Anonymous Coward, 26 Apr 2013 @ 6:22pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        "So I guess an artist that relies on other people's work is screwed either way."
        
        IP should not be about preventing artists from relying on the work of others. That you are making it about something other than promoting the progress is a good reason I want these laws abolished. I do not care if an artist relies on the work of others and I do not want the law micromanaging who relies on what whom. No one is entitled to have the government protect their works from being relied on by others and I don't want my government doing this. It has more important problems.
        
        and besides, IP really simply enables middlemen to rely on the work of artists to make a profit by scamming both artists and the public. Everyone knows this. It is not about preventing an artist from relying on the work of others (and even if it is that's still a good reason to abolish it) but about enabling non-artist middlemen to scam everyone. Abolish IP.
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        Anonymous Coward, 26 Apr 2013 @ 6:23pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        who relies on whom *
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        jupiterkansas (profile), 26 Apr 2013 @ 7:48pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        The reason copyright extends 75 years beyond the death of the author is so that eventually it will fall into the hands of a lawyer.
        
        If the material is worth anything when an artist dies a lawyer is called in to manage the estate, and if they're lucky the lawyer can manage it for the next 75 years, or basically their entire lives.
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        Anonymous Coward, 26 Apr 2013 @ 6:17pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        "Now I'm not saying permission is easy to get. I'm not even saying it's practical. I'm just saying that it does clear up the ambiguity quite nicely, doesn't it?"
        
        You know what else clears things up quite nicely? Abolish IP. and I think this is a much better solution. Then you can't get sued and there is no threat. ABOLISH IP!!!! I'm all for IP abolition.
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        Anonymous Coward, 25 Apr 2013 @ 5:42pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Collages: http://butdoesitfloat.com/search/collage
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        Anonymous Coward, 25 Apr 2013 @ 5:43pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        col-LAGE
        noun
        1. A form of art in which various materials such as photographs and pieces of paper or fabric are arranged and stuck to a backing.
        2. A composition made in this way.
        
        Note that a collage is a composition to be taken as a whole, and thus picking apart a single image in the entirety of the work defeats what makes it transformative.
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        Anonymous Coward, 26 Apr 2013 @ 5:23am
        
        Re: Re: Re: Re: Re: Feature, not bug
        Er... this actually happened in the 70s. Someone did a huge collage with lots of tiny photos and prints all cut up and glued to the canvas, with a tiny Mickey Mouse in the lower right hand corner of the collage. Disney sued and lost. I actually saw the original art on this at the Illustrator's League in Manhattan in the late 70s. You can legally do a collage and use whatever image you like without any permission. There is no question about this. There are tons of other questions about tons of other fair use, but not the collage thing.
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        btr1701 (profile), 26 Apr 2013 @ 11:46am
        
        Re: Re: Re: Re: Re: Feature, not bug
        > If you're selling the collage down at the local
        > art gallery? Then yes.
        
        Not according to the court of appeals.
        
        > If you're just going to put it up on your
        > bedroom wall and moon over all the topless
        > shots of that werewolf guy and that vampire
        > guy, then that's fair use.
        
        So is selling it at the gallery.
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    - dennis deems (profile), 26 Apr 2013 @ 5:52am
      
      Re: Re: Re: Feature, not bug
      If you imagine getting permission is even possible without lawyers, you are profoundly misinformed.
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      - tomxp411 (profile), 26 Apr 2013 @ 8:31am
        
        Re: Re: Re: Re: Feature, not bug
        If you imagine getting permission is even possible without lawyers, you are profoundly misinformed
        
        Really? Because I rebuilt someone's 3D model for another program a while back, and I just sent him an email and asked. And he said "no problem."
        
        I'm not always saying it's that easy... but where it's possible, it entirely resolves the issue of fair use.
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        Leigh Beadon (profile), 26 Apr 2013 @ 10:10am
        
        Re: Re: Re: Re: Re: Feature, not bug
        Really? Because I rebuilt someone's 3D model for another program a while back, and I just sent him an email and asked. And he said "no problem."
        
        And if you're lucky, that counts.
        
        If you're not lucky, the situation under which he originally created the model was such that he doesn't own the full rights and can't give you legal permission. If you're not lucky, he sees what you did and changes his mind, and claims that your request and his "no problem" do not constitute a proper licensing agreement, and as such at least some aspects of your use are unauthorized. Or it turns out his model was inspired by someone else's work, perhaps even subconsciously, and when you get successful that person shows up and tries to sue both of you. Or someone involved in your project accidentally and irresponsibly files a DMCA claim against his work, believing he copied you, and then he sues you for copyright fraud. Or someone else makes him an offer to buy his copyright outright in the future, and he contacts you saying he's withdrawing your permission, since nothing in your original agreement specified that it was perpetual.
        
        Or, you get lucky and none of that happens. But not everyone does. Casual permission is nowhere near as absolute as you think.
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        tomxp411 (profile), 26 Apr 2013 @ 12:14pm
        
        Re: Re: Re: Re: Re: Re: Feature, not bug
        Or, you get lucky and none of that happens. But not everyone does. Casual permission is nowhere near as absolute as you think.
        
        Still, what's the harm in trying? I've been told that's the polite thing to do. I still fail to see how at least asking permission is somehow harmful.
        
        If someone says "no", you can still try to claim fair use, but as I've already pointed out: parody artists like Weird Al Yankovic DO ask AND GET permission all the time. So everyone who says "you'll never get permission without a team of lawyers" is just plain wrong.
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        Leigh Beadon (profile), 26 Apr 2013 @ 12:20pm
        
        Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Still, what's the harm in trying? I've been told that's the polite thing to do. I still fail to see how at least asking permission is somehow harmful.
        
        Now you're just ignoring the multiple answers that we've offered to that question...
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        tomxp411 (profile), 26 Apr 2013 @ 12:51pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Now you're just ignoring the multiple answers that we've offered to that question...
        
        No, literally all I've heard are variations of "you might not get permission" or "it's just too hard."
        
        Anyway, I'm done. Everybody just wants to be right on their own terms, rather than actually have a meaningful discussion.
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        Leigh Beadon (profile), 26 Apr 2013 @ 12:56pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Suit yourself, but I think the issue is that you're not looking closely enough at all the very meaningful discussion that has been happening right in front of you -- in stead opting to ask "why not just get permission?" over and over again
        
        Your world of permission-based art sounds like a sterile world indeed...
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        tomxp411 (profile), 26 Apr 2013 @ 1:05pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Your world of permission-based art sounds like a sterile world indeed...
        
        Like I said before, some of my favorite work is derivative: I absolutely love parody artists, for example: Weird Al Yankovic has been my hero since I was in junior high school, and I really enjoy seeing what people can do with parodies and covers in the musical world.
        
        I just honestly don't agree with appropriating visual art from a moral perspective. It may be legal to do, but I often don't agree with what the law allows or doesn't allow. I realize that my views may put me in the minority here, since most people here argue that the less Copyright the better, but it is fun to put questions out there and see what people can come up with.
        
        Honestly, I've learned some things in this thread - things I wouldn't have if I hadn't taken an adverse position. For example, your comment about people retroactively denying permission was something that I had never considered; I tend to take people at their word, and my word is my bond. So I would never even consider the possibility that someone could give me permission to use a work, then change their mind after I've already put time and money in to creating it.
        
        So next time you think I'm mocking, consider that I'm just probing to see what people actually think. It often takes a few rounds to get to the meat of the matter.
        
        It's all good stuff to think about. Thanks for the discussion.
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        dennis deems (profile), 26 Apr 2013 @ 6:03pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Feature, not bug
        Please watch this interview with Nina Paley. She describes her experience obtaining permission to use songs from the mid-1920's in her film Sita Sings the Blues. The most relevant part starts at chapter 15, but do watch the whole thing; she's a very charming speaker.
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  - RonKaminsky (profile), 25 Apr 2013 @ 3:25pm
    
    Re: Re: Feature, not bug
    The fact that fair use is only a defense, combined with the high cost of getting to (Federal) court, is already a bigger show-stopper in my eyes than the vagueness. Because of the high value of precedent in common law, I disagree that there's "virtually no way to know" the probability that the court system will rule for or against --- eventually (and here there is a second, totally independent way in which the high cost of getting a case to court puts a stumbling block in front of the blindfolded Justice) inspecting the consensus of rulings could give someone a good idea where he stands.
    
    Unfortunately, the more innovative the artist, the less likely that would work... so you do seem to have a stronger point there than I originally thought.
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    - Shadow-Slider, 25 Apr 2013 @ 4:53pm
      
      Re: Re: Re: Feature, not bug
      Here is a list of cases that "the probability that the court system will rule for or against" was not obvious
      1
      2
      3
      4
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  - Malsperanza, 25 Apr 2013 @ 3:48pm
    
    Re: Re: Feature, not bug
    It has long been acknowledged that the weakness in fair use is its effectiveness only as a defense in court. But this is being addressed in a new trend that has enormous potential: the creation of fair use guidelines by communities of interest.
    
    While these guidelines do not have legal standing, they represent the voice of a professional community and express that community's standards--and, as such, have increasing influence on courts. If written well, they can assist individual users and copyright holders to understand how and when and where to distinguish between fair and unfair use. They are not prescriptive, nor do they establish bright lines (which the fair use doctrine deliberately avoids).
    
    Documentary filmmakers have been using such a guideline for about 10 years, quite successfully. Dance choreographers and dance notation creators have as well. Visual artists are right now developing such a guideline through the College Art Association, the professional organization of many artists and users of art copyrights.
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Anonymous Coward, 25 Apr 2013 @ 2:56pm

i find it quite strange that so many judges get copyright rulings wrong. that being the case, why do they preside over such cases when they dont know what is going on or what they themselves are doing? also, with yet again the quote stating what the purpose of copyright is for, why are there so many cases that are obviously only in court to try to get money from people by suing rather than produce good works that would then produce a nice earner??
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- tomxp411 (profile), 25 Apr 2013 @ 4:13pm
  
  Re:
  Judges are people, too. They can't be experts in every facet of law.
  
  It would probably help if courts did a better job of putting specific judges on specific types of cases (and maybe they do, for all I know), but that has its own risks.
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Anonymous Coward, 25 Apr 2013 @ 8:00pm

"Whenever you have that much uncertainty on a point of law, something needs to be fixed."

The law is replete with longstanding "uncertain" standards reaching back centuries in many legal disciplines. "Beyond a reasonable doubt". "Person having ordinary skill in the art". "Reasonable man". "Consumer exercising ordinary care and prudence". Etc., etc. This does not necessarily mean that something needs to be fixed because the law in many, if not most, instances does not lend itself to mathematical precision. It would be nice if it did, but to achieve this is a virtual impossibility.
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Anonymous Coward, 26 Apr 2013 @ 4:10am

Consider this...
Since the entire purpose of art is to ultimately convey a message (ie knowledge) to the audience, all art by definition is TEACHING something which then by definition would automatically qualify as fair use by the letter of the law if it makes use of some prior art from another artist.
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horse with no name, 26 Apr 2013 @ 6:18am

Next level of appeal, coming up
I won't be shocked to see this go another round or two. These works are too clearly derivative to be fair use.
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- Anonymous Coward, 28 Apr 2018 @ 10:20pm
  
  Re: Next level of appeal, coming up
  "They will appeal, and they will win."
  
  Famous last words...
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