The Transforming Nature Of Fair Use

Accuse someone of engaging in copyright infringement and one of the more common responses you’re likely to receive from the accused infringer is that it’s a “fair use.” If anecdotal evidence is any indication, most photographers who have attempted to enforce their rights have experienced this sort of response at one time or another. This reality is consistent with observations made by Mickey Osterreicher, General Counsel for the National Press Photographers Association. “Unfortunately, we’re seeing…more and more people asserting fair use…. [E]verybody just thinks that everything is fair use.”

It can be difficult at times to overcome the wide variety of misconceptions and misunderstandings that exist regarding fair use. I can’t count the number of times I’ve heard someone utter the sheer nonsense that copying for educational purposes is always fair use. If such a misapprehension were true, there would be no incentive for any educational publisher to ever create and publish a textbook, and very little in the way of sales to support those efforts.

More recently, the concept of fair use as it relates to photographs has broadened. In order to understand the concept of fair use today, it’s essential to understand how the concept developed.

The Long View Of Fair Use

Fair use has existed in American jurisprudence since the first Copyright Act was enacted in 1790. While the Act itself didn’t make reference to fair use, the concept of fair use was already fairly ingrained in legal thinking in England.

The “fair use” doctrine—as it became known much later—was entirely a judge-made doctrine, at least until the enactment of the Copyright Act of 1976 (the current Copyright Act). With the enactment of the current Copyright Act came a statute that expressly referred to the limitation on the exclusive rights associated with copyright as “fair use,” and provided factors for a court to consider when assessing whether a particular use was a fair use or not.

The doctrine is presently codified at Section 107 of the Copyright Act, and it expressly recognizes fair use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research….” The statute also provides four factors to be considered: “(1) the purpose of character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

Unfortunately, the statute doesn’t provide any clear distinction between what constitutes fair use and what constitutes infringement. According to the U.S. Supreme Court, the task of determining whether a use is a fair use “is not to be simplified with bright-line rules, for the [fair use] statute, like the doctrine it recognizes, calls for case-by-case analysis.”

Even as codified, for most practical purposes, fair use remains a defense to be asserted in an action for copyright infringement. “It’s not like this little card you get to waive going fair use beforehand and go on your merry way,” explains Osterreicher. “So you can claim all the fair use you want, but the only place that it really comes into play is [when] you get sued, you assert fair use…and the court gets to decide…. That’s the way it’s supposed to work. That’s not the way it’s working in the real world where everybody just thinks that everything is fair use….”

Developing The Concept Of Transformation

One of the key issues in the fair use analysis as it relates to many photography-related cases today is that of transformation. Transformation may tip the balance when courts consider the first factor in the fair use analysis—the purpose and character of the use—and whether the allegedly infringing work has sufficiently transformed the original work so as to result in an entirely new work.

For better or worse, the concept of transformation was squarely recognized by the U.S. Supreme Court in the mid-1990s in a case that didn’t involve photographs, but rather, rap music.

Transformation was key in 2 Live Crew’s appeal win; the Supreme Court decided their song “Pretty Woman” shed light on an earlier work, creating a new one in the process.

In 1989, Luther Campbell—then of the rap group 2 Live Crew—wrote a song entitled “Pretty Woman,” a satire on the famous Roy Orbison song “Oh, Pretty Woman.” After writing his version of the song, Campbell attempted to license the original Orbison version from the record label that owned those rights. The label refused to license Orbison’s song, but 2 Live Crew proceeded to release an album with Campbell’s version anyway.

Roughly a year later, 2 Live Crew’s album had sold nearly a quarter of a million copies. Orbison’s record label sued for copyright infringement, and 2 Live Crew defended on fair use grounds. The U.S. District Court found that the commercial purpose behind 2 Live Crew’s version didn’t preclude a fair use defense. The court also noted that, as a parody, 2 Live Crew’s version “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison song” is. Weighing all of the factors, the court held that 2 Live Crew’s version constituted fair use.

Orbison’s record label appealed, and the U.S. Sixth Circuit Court of Appeals reversed the finding of fair use. The case was again appealed, this time, to the U.S. Supreme Court.

The Supreme Court considered the origins and development of the fair use doctrine. “From the infancy of copyright protection,” noted the Court in its opinion, “some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts….’”

Turning to the issue of whether fair use applied, the Supreme Court considered the purpose and character of the use, and specifically the issue of transformation. In essence, the Supreme Court asked whether the 2 Live Crew version—which was viewed as a parody—sufficiently transformed the original Roy Orbison song to create an entirely new work.

The Court had no difficulty reaching a decision: “Suffice it to say now that parody has an obvious claim to transformative value…. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”

The key to determining whether a work constitutes a sufficient transformation, according to the Supreme Court, is to determine “whether the new work merely ‘supersede[s] the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’

Transforming Transformation

More recently, the U.S. Second Circuit Court of Appeals broadened the concept of fair use as it related to photographs transformed into artworks.

Photographer Patrick Cariou created portraits of Rastafarians in Jamaica, and, in 2000, published a series of those portraits in the book Yes Rasta. The book, which is currently out of print, enjoyed limited success: Only 7,000 copies were published, and the majority of those sold below the suggested retail price.

Appropriation artist Richard Prince discovered a copy of Cariou’s book in 2005. Two years lat
er, Prince took 35 photographs from the book, altered and pinned them to plywood, and then displayed the result as a work entitled “Canal Zone.” Prince ultimately purchased three additional copies of Yes Rasta, and proceeded to make 30 additional pieces of art, 29 of which incorporated partial or whole images from Yes Rasta. The portions of the photographs that Prince used varied considerably from work to work. In some cases, there was extensive alteration; in others, only minimal alteration. In one instance, Prince merely “paste[d] a picture of a guitar over the subject’s body.” Twenty-two of Prince’s works, based on otherwise incorporating Cariou’s images, were featured at a show at Gagosian Gallery.

In 2008, Cariou sued Prince, the Gallery and others for copyright infringement. As with so many copyright infringement actions, Prince and the other accused infringers asserted fair use as a defense. The U.S. District Court in New York concluded that “Prince did not intend to comment on Cariou, on Cariou’s [photographs], or on aspects of popular culture closely associated with Cariou or the [photographs] when he appropriated the [photographs].” In other words, there was no transformation of Cariou’s images, at least consistent with that court’s view of transformation. Ultimately, the District Court rejected the fair use defense and granted judgment in favor of Cariou. Prince and the other defendants appealed.

The U.S. Second Circuit Court of Appeals took a different view, and noted that “[f]or a use to be fair, it must be productive and must employ the… matter in a different manner or for different purpose from the original.” In line with this view, the Appeals Court determined that the District Court had applied too narrow a view of fair use when ruling in favor of Cariou.

Turning to the heart of the issue, the Appeals Court considered whether Prince’s works were transformative. “Here, our observation of Prince’s artworks themselves convinces us of the transformative nature of all but five…. These twenty-five of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs….”

Largely as a result of this comparison, the Appeals Court ruled that 25 of the 30 works at issue were sufficiently transformed to stand up as new works and therefore constituted fair use.

However, perhaps cognizant that its decision may be viewed as an expansion of rights, the Appeals Court also offered a limitation: “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.”

“The issue of transformation keeps us firmly in a world where there can be no clear test for fair use…each case will need to be evaluated in order to determine whether the use constitutes infringement or a fair use.”

Ultimately, the Appeals Court was unable to ascertain whether the remaining five of Prince’s artworks were sufficiently transformed to qualify as a fair use. Unable to say with certainty that those artworks present a “new expression, meaning, or message,” that issue was sent back to the District Court for further consideration.

Cariou appealed to the U.S. Supreme Court. Unfortunately, the Court declined to hear the appeal.

Lost In Transformation?

Cases like Cariou’s suggest that the concept of transformation has firmly established itself as an integral aspect of the fair use analysis. Indeed, any consideration of the fair use factors today is arguably incomplete without questioning whether a particular use of an existing work constitutes a sufficient transformation such that the resulting work has its own aesthetic, character or message (as opposed to a non-transformative use, which typically makes no alteration to the expressive content or message of the original work).

Just as beauty is in the eye of the beholder, the subjective nature of the concept of transformation is likely to produce more questions than answers. The issue of transformation keeps us firmly in a world where there can be no clear test for fair use, and where the specific facts of each case will need to be evaluated in order to determine whether the use constitutes infringement or a fair use.

This new reality is also something of a double-edged sword for photographers. On one hand, a broader view of fair use may allow photographers greater freedom to incorporate existing works into new ones provided the resulting work constitutes a sufficient transformation. On the other hand, the broader view will likely complicate photographers’ efforts to enforce copyrights in images used or incorporated into new works.

As long as the concept of fair use exists and continues to evolve, it will continue to be both a burden and a blessing for anyone who creates content, including photographers.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Florida, and a professional photographer who has covered sporting events for more than 24 years. He can be reached at [email protected] or [email protected]

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