Photographers Band Together to Protect Work in ‘Fair Use’ Cases
To many photographers, a federal appeals court ruling
last spring that permitted Richard Prince to use someone else’s
photographs in his art was akin to slapping a “Steal This” label on
their work.
The
United States Court of Appeals for the Second Circuit reasoned that as
long as Mr. Prince’s work transformed the images into original art, he
was not violating anyone’s copyright.
But
photographers are pushing back against that interpretation. Several
membership and trade organizations have banded together recently to
press their cause in Congress and the courts.
More
than half a dozen groups, including the National Press Photographers
Association, Professional Photographers of America and the Picture
Archive Council of America, have joined together to submit a friend of the court brief
to support the photographer Patrick Cariou, after part of his case
against Mr. Prince was sent back to a judge for reconsideration. That
informal coalition is considering hiring a Washington lobbyist, said
Victor Perlman, general counsel for the American Society of Media
Photographers, and, last month, several of the groups sent
representatives to meet with legislators, including members of a House
of Representatives subcommittee.
One
photographer has also decided to pursue a similar court fight, despite
last spring’s ruling. In December, Lois Greenfield, a dance
photographer, filed a lawsuit in federal court in Manhattan, arguing that paintings of dancers a Texas artist made violated her copyright. But
lawsuits are expensive and, therefore, rare. The focus now, Mr. Perlman
said, should be on persuading Congress to change matters. “The courts
have taken an approach to fair use that we do not believe was originally
intended,” he said. “A lot of what’s going to have to happen in fair
use is going to have to happen on Capitol Hill.”
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| A photo by Patrick Cariou plus Richard Prince's work, “Graduation" |
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| Jill Pankey work beside Lois Greenfield’s photo |
Technological
advances, shifting artistic values and dizzying spikes in art prices
have turned the world of visual arts into a boxing ring for intellectual-property rights disputes.
Photographers, in particular, are complaining not only that their work
is being stolen by other artists, but also that their ability to create
new work related to their originals is also being compromised.
Mr.
Prince, who is known for reworking imagery created by others, cut out
pictures from Mr. Cariou’s book on Jamaican Rastafarians, titled “Yes
Rasta,” and then painted them or juxtaposed them with other images. When
sales of these works at Gagosian Gallery in 2008 topped $10 million,
Mr. Cariou sued.
Mr.
Prince, backed by much of the fine-arts establishment, argued that he
did not break the law because of what is known as the “fair use”
doctrine, which allows artists — and others — to use copyrighted work in
certain circumstances. Mr. Prince said he was covered by fair use
because he had transformed the originals into something new.
The
Warhol Foundation,
which filed a brief on Mr. Prince’s behalf, essentially argued that by
merely changing the context — placing a work in a museum or a gallery —
an artist can transform someone else’s creation. Think of Marcel
Duchamp’s putting a urinal in an art gallery or Mr. Prince’s
rephotographing magazine ads featuring the Marlboro Man.
That
argument failed to convince District Judge Deborah A. Batts of
Manhattan, who ruled in 2011 in favor of Mr. Cariou, unsettling artists,
museums and dealers who warned that the decision would choke creative
expression.
Last
spring, her judgment was overturned by a judicial panel that found
Judge Batts’s criterion — that, to be considered “fair use,” a new work
must comment on or relate to the original — too narrow. The only
requirement, the panel said, was that a reasonable viewer find the new
work “transformative.” Mr. Prince’s testimony that he had not intended
“to create anything with a new meaning or a new message” was irrelevant.
In November, the United States Supreme Court refused to review the
case.
Now
it was the photographers’ turn to panic. “Fair use started out as an
exception to copyright law,” Mickey H. Osterreicher, general counsel for
the National Press Photographers, said. “Now it seems that copyright is
the exception to fair use.”
But
Michael Straus, chairman of the Warhol Foundation board, cautioned that
fair use “should not be read overly restrictively,” adding, “You don’t
want to stifle creativity.”
Many
copyright experts criticized the Second Circuit’s opinion for not
saying how much transformation must take place before something is
“transformative.” A complete reworking? An added smudge of paint?
Even
the appeals court conceded that it was uncertain if five of the 30
collages and paintings made by Mr. Prince differed enough from Mr.
Cariou’s pictures to qualify for the legally required transformation.
The judges sent the part of the case dealing with those works back to
Judge Batts and asked her to make a determination, but within the
context of their expanded definition of fair use.
Hillel
Parness, an author of the photographers’ brief in the Cariou case, said
the point was to remind the court that even under the recently expanded
interpretation of fair use, there are limits. Copyright holders have
the “exclusive” right to make derivative works, which are defined as
those that are “recast, transformed or adapted” from the original. Harry
Potter, for example, is J. K. Rowling’s property, whether in the form
of a book, a movie or a sequel.
“But if fair use were read as broadly as some suggest, it would destroy that right,” Mr. Parness said.
James
Silverberg, an intellectual-property rights lawyer who has worked with
American Photographic Artists, argues that if artists want to use
someone else’s creation in their work, they should pay a fee. A movie
based on a book may rake in millions, but the author is still
compensated for her contribution, he said.
Mr.
Osterreicher said the National Press Photographers have pushed for a
small-claims copyright board to resolve the bulk of disputes, which
usually involve only a few hundred dollars.
He
said he is not expecting a legislative solution soon. He noted that the
last copyright act was passed in 1976, and that “they started working
on that in the 1950s, and so we got 1950s copyright law in 1976.”
I think you know where iskm stands, from the perspective of both a photographer and an artist ...
Observe. Slow down. Shoot. Submit!
