December 30th 2024 | Kiran Sabharwal
Edited by Ayden Min
Art is inherently iterative. Previous authors constantly build upon the work of past literature to further the frontier of creative expression. To enable this cycle of creation, the American legal system carefully balances both the importance of free artistic production and the protection of authorship and ownership with a complex schema of copyright and patent laws. However, this legal code is also more tenuously applied to visual arts, with the same standard for fair use or copyright infringement that also governs inspiration and production of paintings, sculpture, photography, and more.
While visual arts, literature, or music may hold a shared ability to evoke emotion or share social commentary, the visual arts originate from a different space of shared language. Thus, the application of the fair use standards used to dictate written copyright may not be appropriate for the world of visual expression. Works of parody in visual art may be too subtle to be apparent in a court of law, but they should still be permitted use of copyright protected works. The complexities of variation between original and inspired art may be too intricate to be drawn out properly by the confines of fair use precedent.
Fair Use Standards
Fair use entails the legally permissible and unlicensed use of another individual’s copyright-protected works. The first fair use case, Folsom v. Marsh, was decided in 1841, when the defendant allegedly infringed upon copyright protections granted to the plaintiff’s book by copying a number of pages directly from the plaintiff’s biography. Massachusetts state court opined that the defendant’s use of copyrighted material was not fair use while notably affirming that fair use is permissible in some instances and laying the groundwork for the creation of the governing fair use precedent today [1]. In 1976, this precedent was codified in Section 107 of the Copyright Act. For valid use of borrowed intellectual property, fair use standards weigh the following factors:
“1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes,
2) nature of the copyrighted work,
3) amount and substantiality of the portion used in relation to the copyrighted work as whole,
4) effect of the use upon the potential market for or value of the copyrighted work” [2].
Firstly, valid fair use rulings are more likely for works that are non-commercial, educational, or satirical, or which substantively “transform” a work from its inspiration. For visual arts copyright cases, much of the scholarly debate centers around the “transformative” quality of works and the role of judges in determining this. Widely defined protections exist for works of parody, from literature to popular music, which allows for robust expression of social commentary and debate [3]. Secondly, these factors permit lawful use of copyrighted material for more artistic works rather than those that are more scholarly or factual in nature. Substantiality copied is the third factor– works determined to have borrowed the “heart of the matter” of an original work are not fair use [4]. Finally, derivative works that effectively decrease the market share or that hurt the popularity of the original work may not be fair use. While no single factor is determinative, courts weigh each of the four factors in determining the legality of copyright-protected material usage. In each case, the context of use is important.
Applying Fair Use to Visual Arts
Perhaps the most relevant factor in visual arts fair use cases is transformation: to what degree do new works of art substantially innovate upon the original? The term “transformative work” originated in the 1994 United States Supreme Court case Campbell v. Acuff-Rose Music, Inc., in which Roy Orbison’s record label sued 2 Live Crew for their parodic recreation of his hit song “Oh, Pretty Woman.” The defendants used a substantial portion of Orbison’s original track; however, they also added significant changes to its lyrics and musicality. The Court recognized these changes as transformative, which “alter[ed] the original with new expression, meaning, or message.” The opinion of the Court states, “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright” [5]. Thus, a precedent was set: work which transformatively departs from the original —especially in the expression of parody — constitutes fair use under U.S. copyright law.
The question of transformation has determined a number of cases in visual arts law, including a series of litigation over ownership of photographed images. When artists reuse copyright-protected photography, a clear victory for fair use occurs when artists add multiple elements, change backgrounds or color schemes, and rotate orientations, as seen in Jeff Koons’ clear parody of Andrea Blanch’s photograph in the case Blanch v. Koons [6]. The derivative in this work is clearly a parody of the original, as it transforms a conventional image of a woman’s legs into a surreal collage of consumerism, consumption, and sexuality. However, not all transformational cases are so obvious, which leaves subjective matters of artistic meaning to the members of courts. In their determination regarding the fair use value of a work, judges are required to decide the meaning and message of a piece, as established in the four requirements for a transformational work. But, art is subjective. Meanings are often multifold and rarely immediately evident. Nor do they remain the same across various contexts, times, or perspectives. Asking jurists instead of art critics to determine the value and meaning of visual art may be inappropriate in the context of fair use and has led to inconsistencies in fair use rulings in the last few decades [7].
“Transformation” is Subjective
In a series of copyright lawsuits over altered photographs, courts delivered differing opinions. One court determined fair use through a new artistic message, while the other did not find significantly transformed works in visual effects or meaning. The determinations these cases hinged upon are largely subjective, as they rely on the artistic view of jurists and their ideations of artistic meaning.
In 1992, Art Rogers, a photographer, sued Jeff Koons, a well-known sculptor, for illegal use of copyrighted photographs in the creation of Koons’ statue “String of Puppies.” While the sculpture certainly mimics the composition and formal elements of the original, the derivative work subverts the traditional color scheme with blue skin tones, adds floral elements, and presents the work in an entirely new medium, which creates a three-dimensional experience that can be viewed in the round instead of as a two-dimensional image. Still, the Second Court of Appeals found that these changes did not significantly alter the meaning of the work nor did they represent parody, despite the alterations that Koons made to both the visual style and overall mood of the work [8]. Similar visual alterations were made in the case Cariou v. Prince, but the Second Circuit found this work to be fair use. Prince altered Cariou’s photographs with a blue filter and the addition of a guitar, converting the photograph into a canvas collage. While the work did not directly parody the original photographs by Cariou, the court determined that the aesthetic varied enough from the original to constitute a different mood and thus a transformative work, permissible under fair use doctrine [9].
In the United States Supreme Court’s most recent fair use copyright case, it examined Andy Warhol’s famous prints of the American singer-songwriter Prince, which were originally derived from the plaintiff’s copyright-protected photographs. Warhol altered the colors of Goldsmith’s photos and changed the orientation of the photo. Nevertheless, the court found that the work was not fair use due to the “purpose and character” factor [10]. Justice Kagan, in a dissenting opinion joined by Chief Justice Roberts, argued that the Court erred in considering the similar commercial nature of the works — both were used as magazine covers — instead of adequately examining the transformative nature of Warhol’s work: “It is not just that the majority does not realize how much Warhol added; it is that the majority does not care” [11]. Kagan continued to argue that “In adopting that posture of indifference, the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative)” [11]. Justice Kagan’s dissent highlights the subjectivity of fair use law’s application to visual arts and prompts a necessary reevaluation of the doctrine’s applicability to visual art.
Implications
The implications for the lack of clarity in fair use law application to visual art are wide-ranging and damaging, particularly for arts museums across the country. In an amicus brief filed in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a number of art museums expressed concern over the consequences of a ruling against fair use on their current holdings which include pieces by van Gogh and Roy Lichtenstein. As the New York Times reported, in the wake of questions about fair use, arts directors are “nervous” as they wonder, “Where would [our] ecosystem be today without artists’ abilities to synthesize and dream? Where would American art be without Jackson Pollock and Andy Warhol? Why would art museums exist if not to tell the story of imagination in the history of civilization?” [12]. Given that even our most premier art institutions seem unsure of how to navigate a legal landscape without clear application standards for fair use on works of visual art, it may be time to establish a more individualized schema for such cases. Future precedent needs to incentivize the recognition of inspirative works while promoting and enabling creativity. Visual art is a category of its own– it is time for the law to reflect that as well.
Sources:
[1] “Fair Use.” Encyclopædia Britannica, November 11, 2024. https://www.britannica.com/topic/fair-use.
[2] U.S. Copyright Office. “U.S. Copyright Office Fair Use Index.” U.S. Copyright Office Fair use index, 2023. https://www.copyright.gov/fair-use/.
[3] Campbell v. Acuff-Rose Music, Inc, Oyez, https://www.oyez.org/cases/1993/92-1292 (last visited Dec 18, 2024).
[4] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
[5] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
[6] Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)
[7] Milkman, Ryan. “How Artistic Prints of a Legendary Artist May Impact the Scope of Copyright’s Fair Use Doctrine.” Edited by Emma Barbarette. Columbia Undergraduate Law Review, January 9, 2023. https://www.culawreview.org/journal/how-artistic-prints-of-a-legendary-artist-may-impact-the-scope-of-copyrights-fair-use-doctrine.
[8] Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)
[9] “Cariou v. Prince.” Artist Rights. Accessed December 18, 2024. https://www.artistrights.info/cariou-v-prince.
[10] Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, Oyez, https://www.oyez.org/cases/2022/21-869 (last visited Dec 18, 2024).
[11] Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 598 U.S. ___ (2023) (Kagan, J., dissenting)
[12] Moynihan, Colin. “Why Warhol Images Are Making Museums Nervous.” The New York Times, March 6, 2023. https://www.nytimes.com/2023/03/01/arts/design/warhol-prince-goldsmith-museums.html.
JHULR 
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