More than a century ago, Justice Oliver Wendell Holmes warned that it would be dangerous for people trained only in the law to decide the worth of a work of art—at least outside of the narrowest and most obvious limits. As Holmes said: “At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.”
Perhaps anticipating the arrival of such works as Tom Forsythe’s “Barbie Enchiladas” and Jeff Koons’ “Balloon Dog (Orange),” Holmes’ statement rings particularly true in today’s “appropriation art” scene. Indeed, the growth of appropriation art, which the Museum of Modern Art (MoMA) defines as “the intentional borrowing, copying, and alteration of preexisting images and objects,” has been stunning. As just one example, when Andy Warhol premiered his Campbell’s Soup Cans work back in 1962 (which is a painting of a bunch of soup cans in a row), the canvasses only sold for only $100. But in 1996, (at what must have been the height of America’s craze for salty soups), the paintings sold for $15 million.
Earlier this week, the debate over judges deciding the worth of works of art was reinvigorated as the United States Supreme Court decided not to hear an appeal of an extremely high profile fair use case called Cariou v. Prince. In Cariou, a federal court of appeals in New York ruled, in a 2-to-1 decision, that 25 out of 30 paintings by Richard Prince made fair uses of copyrighted photographs by Patrick Cariou. With respect to the other five Prince paintings, the appellate court sent the case back to the district court for a closer examination. But as the dissenting judge recognized: the line between the 25 fair uses and the five questionable ones is very thin—and might be better left to art experts to define rather than judges.
The Copying in Question
The reason the Cariou case is so fascinating to fair use scholars is that it presents, in a single case, a wide spectrum of copying conduct. On one end of the spectrum, Prince produced works that heavily alter Cariou’s photographs. For example, in the work shown below called James Brown Disco Ball, the portions taken from Cariou’s photograph are almost completely obscured:
If you look carefully, you can see that Prince affixed headshots from Yes Rasta (left) onto other appropriated images, all of which Prince placed on a canvas that he painted (right). This, the majority said, is clearly transformative fair use.
On the other end of the spectrum, as the majority states, “Cariou’s work is readily apparent: Prince did little more than paint blue lozenges over the subject’s eyes and mouth, and paste a picture of a guitar over the subject’s body”:
As you might guess, this was one of the five questionable works out of the 30 that got sent back to the district court for a closer look. (And if this was one of the pieces Prince sold for two or more million dollars, I have got to get into the Photoshop cut and paste art business).
The Law of Fair Use
From an academic perspective, the Second Circuit judges did a great job articulating the requirements of fair use law. Unlike the district court, the appeals court recognized that fair use law does not impose a requirement that a work comment on the original or its author in order to be considered transformative and that a secondary work may constitute fair use even if it serves some purpose other than the ones listed in the statute (i.e., criticism, commentary, news reporting, teaching, etc.). Additionally, the majority opinion recognized that the intent of the artist is irrelevant. Instead, “[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece of body of work.” The key, therefore, is how the artworks may “reasonably be perceived” in order to assess their transformative nature.
The Dissenting Opinion
The majority opinion gets into a great level of technical art jargon in attempting to describe why it labeled five works as questionable. Among other things, the majority discusses the result of Prince’s different artistic techniques and the “cumulative effect” of those techniques. Ultimately, the majority says that the district court is in the best situation to determine whether “relatively minimal alterations” (such as those in the Graduation work, shown above) constitute transformative use.
The dissenting judge made two points.
First, the dissenting judge felt that an artist’s intent matters. Unlike the majority, though, he did not provide an explanation as to why. The counter-argument is that intent is irrelevant to the ultimate question of whether allowing a particular instance of copying promotes the useful arts and sciences. After all, if it does, and society benefits, then who cares (other than the original artist who feels ripped off) what the secondary artist’s intent was?
Second, and more importantly, the dissenting judge “fail[ed] to see a principled reason for remanding to the district court only the five works the majority identifies as close calls” and instead felt that all 30 works should be sent back to the district court. The dissenting judge recognized that he, like most judges, is not an art expert and that somebody with more expertise at their disposal should be making the call. He stated:
While I admit freely that I am not an art critic or expert, I fail to see how the majority in its appellate role can “confidently” draw a distinction between the twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination.
Whether the majority can or cannot draw such a principled distinction is unclear from reading the opinion, but while considering this question, one cannot help but be reminded of Justice Stewart’s test for determining pornography: “…I know it when I see it….”
As for the rest of us, it is important to keep abreast of such cases so that we, too, can know it when we see it. (Fair use, that is).