Regarding Image Copyright & Fair Use [Warning: NSFW Images]

[Telarus]

This is not a comment on that horrible thread, but I felt that the issue brought up there could use some _serious_ clarification.

Last month, the US 2nd Circuit of Appeals decided Cariou v. Prince.

We have here an interesting case in which the sued party, Prince, at his deposition had disavowed any intention to "comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos." I.E. 'Parody' was off the table.

Cariou had taken a lovely spread of black and white photos of old Rastafarians, and sold them as a book collection in 200 entitled Yes, Rasta. Prince, a highly successful appropriation artist, created a series of thirty canvases he titled Canal Zone. He printed the photos greatly enlarged and then used classic "Cut Up" techniques and abstract painting to visually remix them... to various degrees. He and a dealer sold a number of them for a total of - over $10 million.

Cariou sued and the lower court judge sided with him, declaring these works not falling under "fair use". In granting Cariou's summary judgment motion, the Judge ordered defendants to deliver up the unsold paintings for Cariou to dispose of as he wished, including impoundment or destruction.

Here are some examples, the first being a comparison of the Cariou vs Prince images.











The 2nd Circuit just reversed the lower court's ruling, and I'm going to quote from Lexology.com on what that means (because holyshit, legalese). The impact this case has had is not little. You can check out the buzz via my sources at the bottom.


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Appellate Decision

The Second Circuit reversed in part, vacated in part and remanded, holding that, contrary to the standard applied below, there is no requirement that the new work comment in some way on the earlier work or popular culture for it to be deemed transformative. The categories of fair use listed in 17 U.S.C. Section 107 are illustrative, not exhaustive, and although some types of fair use such as satire and parody do comment on an original work or some aspect of society, many other types of works which constitute fair use, do not. The essence of the inquiry, the Court stated, is whether the artist has created "new information, new aesthetics, new insights and understandings" (quoting Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006)), however that "new" material may be manifested in the new work.

The Court recognized that many alleged infringers take pains at deposition to justify their use as commenting on or critiquing the original work, but the fact that Prince declined to do so was not dispositive, because the test is whether a reasonable person would find the use transformative. The emphasis is therefore on the works themselves, mandating a side-by-side comparison of each of Prince's works with the Cariou photograph(s) that served as the source.

When viewed under the correct test, the majority of the panel found twenty-five of Prince's works to be transformative as a matter of law. Prince had testified that he had ignored the meaning of the originals and instead created what he called "a post-apocalyptic screenplay" on the "equality of the sexes," an aim clearly different from that which had motivated Cariou. In contrast to Cariou's "serene and deliberately posed portraits and landscape photographs," Cariou's works were "crude and jarring . . . hectic and provocative." Prince had taken Cariou's small format black and white photographs and created vastly larger works on canvas that incorporated color, collage and distortions. In the Court's view, these images "have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou's."

The Court acknowledged that not every reworking may constitutes a fair use. "For instance, a derivative work that merely presents the same material but in a new form" would not be transformative (quoting Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 143 (2d Cir. 1998)). The majority believed that a further factual record was necessary with respect to the remaining five of Prince's works (including the work called Graduation which had illustrated almost every article and news report on the dispute), and so remanded to the district court to determine whether they were fair use under the Court's formulation of the proper standard.

The Court gave little credence to Cariou's claims of market harm under the fourth fair use factor since the audience and price point for each artist's work were totally different; likewise, there was no indication that Cariou would prepare derivative works or license others to do so in Prince's market sphere. The proposed exhibition of Cariou's work, on which the lower court placed great emphasis, had been canceled because his potential dealer was under the impression that Cariou had collaborated with Prince on his exhibition, not because the market for Cariou's photographs had been usurped. Finally, the Court offered no guidance to the district court on the appropriate standard to apply on remand to the claims of vicarious and contributory infringement by Gagosian (the art dealer).

Consequences

The Second Circuit decision has been largely welcomed in the art world. Many believed that the district court holding—that a transformative use required explicit commentary—if upheld, might have crippled the whole field of appropriation art. The issue had already arisen in the wake of two decisions involving the artist Jeff Koons. In the first, Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), Koons' fair use parody defense failed in part because he had been unable to articulate how his sculpture was intended to comment on his source, but in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), his use of a magazine advertisement photograph in one of his collage paintings was held to be transformative in large part due to his carefully stated deposition testimony on how he intended to comment on the original. In light of these decisions, transformativeness appeared to pivot around a formulaic and, some would argue, cynical exposition of a "motive" to comment on the original work of art or popular culture. By totally refocusing transformative use on a broad suite of aesthetic considerations such as scale, medium, aesthetic impact, and artistic purpose, the Cariou decision better reflects the creative process and permits artists and their dealers to be more confident that significant reworking of visual sources will not give rise to copyright infringement.

Some commentators have expressed discomfort with the Second Circuit making determinations on the transformative nature of individual works of art based on the extent and character of the artistic reworking, and indeed Judge Wallace of the Ninth Circuit, sitting by designation on the panel, dissented as he was less inclined to discount Prince's own disavowals, and thought that the court on remand was better positioned to make the fair use determination on all of the works, applying the principles set forth in the decision to "such additional testimony as needed." It is not clear what additional testimony Judge Wallace has in mind, whether it be further testimony from Prince or even expert testimony on the application of a reasonable person standard. Commentators were quick to point out the risk that such a burden, going forward, might chill the very artistic creativity that the majority of the panel seeks to promote.


Sources
http://www.lexology.com/library/detail.aspx?g=61aabe60-fe65-4420-98b6-627da7c281bb
http://www.mondaq.com/unitedstates/x/237282/Copyright/Copyright+Fair+Use+And+Artistic+Works+Can+A+Work+Be+Transformed+Without+Being+Transformative
http://blog.photoeye.com/2012/08/tomorrow-remix-culture-appropriation.html
http://blog.photoeye.com/2013/05/prince-is-king-flux-and-focus-responses.html

[Don Coyote]

Ergo WOMP is protected speech?

[Mesozoic Mister Nigel]

Prince's work definitely stands out to me as original and definitively different from Cariou's work.

[Left]

Ergo WOMP is protected speech?

Once you alter the image, it's not the copyrighted image anymore.

[P3nT4gR4m]

ten million bucks for 5 mins really shitty womping, scribbles and stick men?

I'm in the wrong fucking job 

[Junkenstein]

P3nt, you make 'em I'll sell em. 25% sound fair?

And is it just me, or does it remind anyone else of:




Art is not a strong suit for me.

Edit to remove FUCKHUGE pic and replace with better example. The case is intriguing though, will be looking at this later. Thanks!

[P3nT4gR4m]

P3nt, you make 'em I'll sell em. 25% sound fair?

And is it just me, or does it remind anyone else of:




Art is not a strong suit for me.

Pretty sure that's what he was shooting for but lacked the basic drawing skills to pull it off properly. I suspect the reason I never made billions as an artist is because I actually have some talent.

Most of the really successful multi-million stuff is pretty much just shit. Fleecing rich rubes and rubbing their noses in it at the same time.

[Don Coyote]

I feel the urge to get all my old WOMPs on 5' x 6' canvases and set up a gallery showing.

[Telarus]

You might want brief character bios for the recurring characters (who wants to write samurai Obama's?). We have that context, another audience would not.

You should then have one installation at the end with all of the characters in one WOMP (throw in samurai Obama, etc), then give one body a cut-out head with a small LCD behind it, have a hires cam to capture a face-pic and stream it to the painting. If a person person provides an email address, paste the face into a digital version of the painting and email it to them. (Basically faking one of those face-cut-out photo-booth digitally.)

[Eater of Clowns]

I feel the urge to get all my old WOMPs on 5' x 6' canvases and set up a gallery showing.

Your surreal WOMPs are fucking awesome and should hanged in galleries across the world.

Yes, hanged.

Like from a noose.



(in a good way)

[Don Coyote]

I feel the urge to get all my old WOMPs on 5' x 6' canvases and set up a gallery showing.

Your surreal WOMPs are fucking awesome and should hanged in galleries across the world.

Yes, hanged.

Like from a noose.



(in a good way)

You mean like on shirts on corpses manikins dangling from nooses?

[Mesozoic Mister Nigel]

I feel the urge to get all my old WOMPs on 5' x 6' canvases and set up a gallery showing.

Your WOMPs are fucking epic. They are, in fact, pretty great art.

[Mesozoic Mister Nigel]

You might want brief character bios for the recurring characters (who wants to write samurai Obama's?). We have that context, another audience would not.

You should then have one installation at the end with all of the characters in one WOMP (throw in samurai Obama, etc), then give one body a cut-out head with a small LCD behind it, have a hires cam to capture a face-pic and stream it to the painting. If a person person provides an email address, paste the face into a digital version of the painting and email it to them. (Basically faking one of those face-cut-out photo-booth digitally.)

That would be an epic and incredible art installation.

[Cardinal Pizza Deliverance.]

You might want brief character bios for the recurring characters (who wants to write samurai Obama's?). We have that context, another audience would not.

You should then have one installation at the end with all of the characters in one WOMP (throw in samurai Obama, etc), then give one body a cut-out head with a small LCD behind it, have a hires cam to capture a face-pic and stream it to the painting. If a person person provides an email address, paste the face into a digital version of the painting and email it to them. (Basically faking one of those face-cut-out photo-booth digitally.)

That would be an epic and incredible art installation.

Seconded. It would be amazeballs.

[LMNO]

I would also buy them on a TShirt, if you have a CafePress account.