October 2016

by Suzanne Kessler

Suzanne Kessler is Of Counsel at Bone McAllester Norton PLLC and Adjunct Professor at Vanderbilt Law School, where she teaches courses in intellectual property licensing and entertainment law.

Throughout art history, artists have used pre-existing third-party-owned copyrighted materials in their own works— sometimes with permission from the third-party copyright owners and sometimes without.

Such use has often resulted in lawsuits, famously with respect to works by Andy Warhol, Jeff Koons, Richard Prince, and others. After Andy Warhol appropriated photographer Patricia Caulfield’s picture of flowers for his silk-screened work, Caulfield sued Warhol for copyright infringement. The parties settled out of court. After Jeff Koons appropriated photographer Art Rogers’s picture of a couple holding multiple puppies in their arms for Koons’s String of Puppies sculpture, Rogers sued Koons for copyright infringement. Rogers won. And in recent months, Richard Prince was hit with yet another copyright infringement lawsuit in connection with his New Portrait series, which consists of blown-up Instagram photographs appropriated from various third parties’ Instagram accounts. The latest legal action by Ashley Salazar claims that without her permission, Prince used a selfie from her Instagram account in his own work.

But not all appropriation in art is unlawful. In fact, Andy Warhol, Jeff Koons, Richard Prince, and many other artists have successfully incorporated third-party copyrighted materials into their own works with impunity. In certain instances, artists have entered into license agreements with the copyright owners for such use (e.g., Warhol’s purported agreement with Disney for Warhol’s use of Mickey Mouse images). In other cases, artists have claimed “fair use” defenses to copyright infringement lawsuits, and they have prevailed. For example, in 2013 an appeals court found that Richard Prince’s appropriation of Patrick Cariou’s photographs in Prince’s own works constituted “transformative” fair use—i.e., not copyright infringement.

The fair use concept is of great relevance to visual artists. Understanding fair use can make the difference between artists feeling comfortable incorporating third-party materials into their creative expressions and feeling constrained not to do so for fear of facing copyright infringement claims.

This article is the first in a series exploring the fair use doctrine. Subsequent articles in the series will delve into the definition of fair use, the factors used in evaluating fair use, and other fair use issues of special significance to visual artists.

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