Copyright, fair use and artistic works: can a work be transformed without being “transformative”?

Compare Cariou and Prince

Court: too close to call

A recent Second Circuit court decision appears to establish a broad fair use exception for the use of artistic works in new works.  However, a careful look at the case — and especially at the examples which the court considered too close to call as a matter of law — could leave artists feeling confused about just how broad the exception really is.

The case of Cariou v. Prince involved several photographs by Patrick Cariou. Cariou published his photographs in a book entitled Yes Rasta.  Artist Richard Prince altered and incorporated 25 of Cariou’s photos into various paintings and collages. Prince displayed his works in various exhibitions, and he also sold reproductions of a few of them.

Cariou sued Prince for copyright infringement, and the district court originally ruled in favor of Cariou. However, on appeal the Second Circuit reversed the lower court’s decision on 20 of the images, and it remanded the case for further consideration on the remaining five images.

In its discussion, the Court listed the four factors for considering whether a particular use of a copyright is “fair.” The Court focused on the element of “purpose and character of the use” and examined prior caselaw relating to “transformative” works, which “lie at the heart of the fair use doctrine’s guarantee of breathing space.” It noted that prior Second Circuit decisions found a transformative work to be one that transforms the original “in the creation of new information, new aesthetics, new insights and understandings.”

In this case, the Court found most of Prince’s works to be transformative for several reasons, including:

  • Cariou’s original photos were “serene and deliberately composed; Prince’s modifications were “crude and jarring . . . hectic and provocative.”
  • Cariou’s works were in black-and-white, printed in a 9-1/2″ x 12″ book; Prince’s modifications added color, and increased sizes at least tenfold.

The Court found that Prince’s modifications gave the 20 images a “new expression” and “new aesthetics.”  The Court also considered other fair use factors, such as the effect of the use on the potential market, and found no significant adverse impact on Cariou’s market.

However, the Court was careful to issue cautionary words about broad interpretations of its ruling:

Our conclusion should not be taken to suggest, however, that any cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative.  For example, a derivative work that merely presents the same material but in a new form, such as a book or synopses of a television show, is not transformative.

Despite that setup, the Court did not establish a bright line test to help explain when a work moves out of the realm of being merely derivative and into the realm of being transformative.  Indeed, the Court’s instruction to remand the decision on five of the images back to the district court, rather than simply reverse the decision on all 25 images, provides little guidance for situations that could be close calls.

An example of one of those remanded as “too close to call” is Prince’s image entitled Graduation, reproduced above alongside an image of the Cariou’s original.  Here, the Court discussed Prince’s addition of a guitar, larger hands, obscured facial features and blue tint.  Despite finding Cariou’s original photo as “serene” and Prince’s image as creating a “sense of discomfort,” the Court stated that that “we cannot say for sure whether Graduation constitutes fair use or whether Prince has transformed Cariou’s work enough to make it transformative.”

Thus, while the decision may provide some comfort for many artists who truly transform underlying artistic works, it may leave other artists struggling to understand exactly how much “transformation” is needed to be “transformative.”

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