February 2017

by Suzanne Kessler

This article, the last in a series exploring the fair use doctrine and the visual arts, continues looking at “transformative” use, related to the first fair use factor—the purpose and character of the use—and the three other fair use factors all considered when determining if an artist’s appropriation of pre-existing copyrighted material is fair or not.

Even when weighing those three other fair use factors (the nature of the copyrighted work, the amount used, and the effect upon its market or value), many courts have relied most heavily on the concept of transformation—that is, has the artist’s work sufficiently altered the copyrighted original by creating a new aesthetic, character, or meaning, thereby making the artist’s use non-infringing, or “fair”? Certain courts have found transformative fair use even where substantially entire original works have been appropriated if, in the subjective opinions of the courts, the artists changed the originals into something new and distinctive. Different courts, however, may have deemed such wholesale appropriations infringing. So, if it is up to courts to analyze, subjectively, the character of an artist’s use of pre-existing copyrighted material, are courts effectively now serving as art critics and interpreters? Are the creative choices of appropriation artists ultimately at the mercy of the courts?

As mentioned in the first article of this group, artist Richard Prince has recently been sued by multiple individuals for copyright infringement in connection with his New Portrait series, which consists of third-party- owned photographs that Prince enlarged and reproduced in their entirety without, the plaintiffs contend, enough alteration to constitute transformative fair use. If any of these cases ultimately get resolved in courts, yet more interesting tales in the history of the fair use doctrine will be written. If nothing else, these Prince cases have the potential to further clarify—or confuse—what it takes for an artist to truly transform copyrighted material into something new and non-infringing, at least in the opinions of courts turned art interpreters.

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.

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