Copyright Perspectives: “Appropriation Art” – Transformative Use, or Derivative Abuse?

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“Appropriation Art”: Transformative Use, or Derivative Abuse?

Richard Prince is a visual artist, working in photography. His images are exhibited in galleries and sell for thousands of dollars. There’s no ambiguity about that. For decades, his work has been celebrated and highly regarded by many in the art world.

Prince – not to be confused with the recently deceased musical artist known as Prince – often works in a style referred to as “appropriation art” in which images from an earlier, underlying source are re-used, re-purposed, and re-contextualized. Andy Warhol was famous for this, half-a-century ago, as are others since. Visual parody also works in this vein —parody draws from an underlying work to make a new, expressive point about it.

A few years ago Mr. Prince was sued for copyright infringement in a case which became famous, Cariou v. Prince (714 F. 3d 694; 2d Cir. 2013; case settled, March 2014). This also involved “appropriation art,” where Prince used an underlying image by Cariou as the basis for a different image.

“Transformative” Instagram images land Prince back in court

As it turns out, Mr. Prince has now been haled into court again due to another alleged misappropriation, in the “New Portraits” case. In this instance, Mr. Prince put up a gallery exhibition of images that had been posted to Instagram by other people, re-captioning them or otherwise changing them very slightly. He also sold prints from this exhibition. He – and the gallery owners – argued that his use was transformative (and, therefore, should be permitted). Donald Graham, who has brought the suit, is a working photographer who advertises his work on Instagram. Prince simply took Graham’s photograph and added a short, “cryptic comment,” as described by the court.

The Judge in the case, Sidney Stein of the Southern District of New York, has responded with an interim ruling that – given the facts and the law – he doesn’t buy this argument. He denied Prince’s initial motion to dismiss, and the case appears headed for a jury.

To what does this term “transformative” refer?

Good question. “Transformative use” is a recently developed concept, (Pierre Leval, “Toward a Fair Use Standard”, 103 Harv. L. Rev. 1105 (1990)) brought into copyright law as a refinement on the concept of fair use, especially of the first factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” (U.S. Code Title 17, Chapter 1, § 107).

Although the standard applied in the earlier Richard Prince case – a substantive change to the actual work, seems more in keeping with a traditional transformative use argument, the outcome there was arguably troubling, and took the relative fame of the photographers and the higher market value of the “transformed” work into account to favor the well-known “transformer” over the lesser known author of the original works. The current case has all these elements and more.

Transformative vs. Derivative

It seems to many commentators that there is a tension in copyright law (and copyright theory) between “transformative use” and the older concept of “derivative works.” A derivative work is defined as one:
…based on or derived from one or more already existing works.

Common derivative works include:

  • Translations
  • Musical arrangements
  • Motion picture versions of literary material or plays
  • Art reproductions,
  • Abridgments, and
  • Condensations of preexisting works.

(Source: Circular 14, “Copyright in Derivative Works and Compilations” U.S. Copyright Office.”)

The right of the original author of a work to authorize – or to restrict the creation of – derivative works is well-established under the Berne Copyright Convention and other relevant law, including the US Copyright Act, US Title 17.

Absent some special consideration such as fair use, or the work being in the public domain, the permission of that original author is required for the older work to be used as part of another (derivative) work.

But transformative use necessarily entails the creation of works which, at least, verge on the right to authorize/deny the creation of derivative works
In short, and contrary to some advocates, simply claiming “transformative use” is not a free pass to anything, and the guidance of various precedents should be helpful in this regard. Recent courts have expanded the span of valid applications of this legal construct. In no case should transformative use be a sufficient rationale for creating a derivative work which then may be utilized as a substitute for the original, without the permission of the rightsholder /author in the underlying work. To do so subverts one of the core purposes of copyright, which is to enable creators to commercially exploit the works of their creation. Another is to bring these works to public.

Ought Prince’s uses of the works of other photographers be seen as legitimate, under a traditional copyright analysis, using transformative use as the basis for the argument? At this point, why what Prince is has done here with other people’s images should not be recognized as creating a derivative work, and therefore infringing, is beyond me. We’ll see if, after due consideration and presentation of argument and evidence, the law agrees.

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Dave Davis

Author: Dave Davis

Dave Davis joined CCC in 1994 and currently serves as research analyst. He previously held directorships in both public libraries and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. Dave is fascinated by copyright issues, content licensing and data. Also, rock and roll music.

For inquiries related to this blog, email: sweston@copyright.com