Double vision: the grey area of ar tistic appropriation

US copyright law is no longer fit for purpose as courts are forced to make artistic judgements in “fair use” cases


It is 20 years since the concept of “transformativeness” was introduced into US copyright law. Pioneered by the influential judge, Pierre Leval, it was designed to give greater leeway for artists to reuse pre-existing materials in an era when appropriation and “sampling” were becoming mainstream across a range of art forms. Under the fair-use provision, an artist is allowed to use the work of another artist if the work created is deemed to substantially transform the original by adding a new “meaning or message”. The Supreme Court has described the “transformative” concept as “the heart of fair use itself”.

But today there is growing concern about the way fair use is working, following a series of copyright disputes that have dragged some of the world’s most significant artists, including Jeff Koons, Shepard Fairey, Sarah Morris and Richard Prince, into court.

It is not just artists at the top of the profession who are affected. A report on fair use in the visual arts, produced in February by the College Art Association and funded by the Andrew W. Mellon Foundation, found that “the practices of many in the visual arts are constrained due to the pervasive perceptions that permissions to use third party materials are required… although [some] may rely on fair use in some instances, they may self censor in others due to confusion, doubt and misinformation on fair use… [this] jeopardises their ability to realise their own full potential as well as that of the arts community as a whole”.

Judges as art critics Now a leading legal academic, Amy Adler, a professor at New York University School of Law, argues that it is time to overhaul existing fair-use legislation. In a paper to be published in NYU Law Review next spring, Adler argues that, “[although] the transformative inquiry [was designed] to ensure that copyright law did not ‘stifle the very creativity it was meant to foster’… artistic expression has emerged as a central fair use battleground in the courts. At the same time that art depends on copying, the transformative test has made the legality of copying in art more uncertain, leaving artists vulnerable to lawsuits under a doctrine that is incoherent and that fundamentally misunderstands the creative work it governs.”

Adler told The Art Newspaper that the transformativity test, implemented in 1994, unfairly asks a judge to play art critic—and others agree. Courts may have to consider, among other things, an artist’s intention when making a work, the aesthetic appearance of the work, and the way a work may be perceived by viewers—all notoriously problematic concepts for trained art historians, let alone lawyers. “Asking a court to make qualitative artistic judgements has always been a particular challenge for lawyers in fair use cases,” says David Baum, a partner at the law firm Dentons in New York.

Adler describes one high-profile case, between the photographer Patrick Cariou and the artist Richard Prince, as “the most urgent art law case of the last decade”. That case revealed, among other things, discrepancies in court judgements. A US District Court ruled in 2011 that Prince had failed to “comment on, relate to the historical context of, or critically refer back to” Cariou’s original photographs, which Prince had incorporated in his Canal Zone series of paintings of 2008—thus failing the transformativity test. But two years later an appeals court found Prince’s work to be of “an entirely different aesthetic” to Cariou’s.

Adler also says that the enormous prices commanded by some contemporary artists (including Koons, Prince and Morris) are unfairly colouring judges’ opinions. In the case of Art Rogers vs Jeff Koons in 1991-92, involving a professional photographer whose images of puppies were used by Koons for his Banality series, “the court talked specifically, and with repulsion, about how much Koons’s work costs,” she says. Instead, as was the case  before 1994, Adler argues that an artist’s market should be a key factor in determining fair use, focusing on whether one artist’s market usurped the market of another.

Adler argues that many of the most successful artists have become brands in their own right, and the value of their work lies less in its appearance than in the artist’s name. “There’s a mistaken idea among legal scholars that Prince is making money because he has taken Cariou’s beautiful images,” she says. “They don’t understand that the value comes from Prince’s reputation.” Perhaps counter-intuitively, the best way to protect freedom of creativity would be “to stop thinking about art in terms of its expressive value, its meaning or message and to turn instead to thinking about art as a market commodity.”

Spot the difference?The difficulties faced by courts (and the public) in understanding appropriation in contemporary art in terms of “transformation” is demonstrated by Amy Adler, a professor of law at New York University. On the left is Walker Evans’s 1936 photograph Alabama Tenant Farmer Wife and on the right Sherrie Levine’s 1981 After Walker Evans: 4 rephotographing of that work. Numerous art theory texts have been devoted to the different meanings of these two works­—and any art school or art history faculty would expect students to be able to discuss these differences. The market also makes a distinction between the artists (although prices of photographs are, of course, also dependent on issues such as size, edition, condition, provenance and printing date): Christie’s New York sold a version of the Evans in 2003 for $141,900 and a version of the Levine a year earlier for $29,875. Adler’s point, though, is that collectors and museums are unlikely to confuse Evans with Levine, whatever a court rules. —Jane Morris