The Recent Richard Prince Decision Tips the Scales Towards Copyright Owners

Richard Prince, Tales of Brave Ulysses, 2008

While paying lip service to the fact that fair use is the way in which the inherent tensions between the First Amendment and copyright law may be resolved, Judge Batts’s recent decision for the Southern District of New York in Cariou v. Prince preserved fair use protection for only those works that comment on or criticize the original copyrighted work. While Batts states she is not making any value judgments about the works at issue, undergirding the court’s opinion in Cariou is an apparent dislike of Prince’s chosen method of expression, namely using images already in existence to make his art, and an implicit rejection of this common and important artistic practice.

The purpose behind the constitutional grant of copyright is to promote the progress of science and the useful arts (U.S. Const. Art. I. Sec. 8 Cl. 8), not to reward artists and creators for their labor and efforts. Indeed, the “sweat of the brow” doctrine in copyright law was explicitly rejected by the Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co. (1991). The dangers of the chilling effect of copyright legislation on common artistic practices are particularly evident in a case such as Cariou—the works Prince created will be impounded or destroyed, eliminating the public’s ability to view and appreciate them. And the next time an artist wants to make a collage, or use found imagery to make a new work, the ruling of Cariou will instruct against creating the work at all for fear of infringement.

When one considers the importance of collage and other forms of appropriative activities on criticizing or questioning mainstream cultural norms (John Heartfield’s scathing collages attacking the Nazi regime during WWII or ACT UP’s AIDS awareness campaigns that appropriated common advertising tropes and iconography come immediately to mind) the Cariou decision seems more and more appalling. As copyright owners continue to push for even further expansion of the copyright monopoly (see the current debates about the Protect IP Bill in Congress or extending copyright term limits yet again), and with legislators increasingly willing to comply, the fair use doctrine must be interpreted broadly in order to ensure that the ominous threat of litigation does not stifle avenues for creative expression. Instead of merely acknowledging the role of fair use in the protection of our First Amendment rights, jurists should use their power to ensure that the fair use doctrine actually does function as the valve releasing the tensions inherent in copyright and the First Amendment.

Photograph from Patrick Cariou's "Yes, Rasta" (powerHouse Books, 2000)

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3 Responses to The Recent Richard Prince Decision Tips the Scales Towards Copyright Owners

  1. Polite No says:

    Hmmm…No. Prince practices a very specific form of appropriation that aggressively steals images from other artists. The only reason he previously “got away with it” was that he was clever and sly about from whom he appropriated and when he privately settled. The average collage artist need not worry that they will be sued for infringement unless they actively decide to scan and utilize images from a book from a contemporary artist.

    Perhaps more significantly however, you’ve butchered you’re interpretation of the “sweat of the brow” doctrine. Copyright promotes the sciences and useful arts by giving authors limited monopolies. That is EXACTLY what copyright does–it rewards work by giving exclusive control over copies. The repudiation of the “sweat of the brow” doctrine simply meant that copyrightable material could not be achieved solely through toil. Collecting a million names and publishing those names is not a copyrightable act…but drawing a distinctive smiley face is. If you don’t understand that distinction, you shouldn’t be quoting case law to support your argument. You approach purposefully misinforming to further your own agenda and it helps nobody. There are specific questions that the Prince case raises but the “Sweat of the brow” doctrine does not relate to any of those questions.

  2. Sadly, it appears that any artist who utilizes found imagery in their work does indeed have a great deal to fear from the ruling in Cariou, unless, of course, they restrict their materials to works in the public domain. But that restriction essentially obliterates the fair use defense and one’s ability to use any copyrighted material as raw material in their own unique expression.

    While central to the Supreme Court’s opinion in Feist is the understanding that a work must “possess a minimal degree of creativity” (499 U.S. 340 at 346) to be copyrightable, Supreme Court Justice Sandra Day O’Conner also states quite explicitly, “[t]he primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” (Id. at 349-350, internal citations omitted).

    Feist, therefore, explains that reward for one’s labor is not the purpose of the monopoly grant outlined in the Constitution. That reward is only given because of the understanding that without it, people would have no incentive to create works in the first place. The grant of copyright is instead grounded in the public benefit. If there were no social benefit, then giving an incentive to creators would be irrelevant and the monopoly would not be granted.

    Although discussing the origin of the Patent monopoly in the United States, the Supreme Court’s opinion in Graham v. John Deere Co. (1966) is also relevant to our discussion. The Court notes that Thomas Jefferson was instrumental in the development of the intellectual property system in the United States and then explains that “Jefferson’s philosophy . . . rejected a natural-rights theory in intellectual property rights and clearly recognized the social and economic rationale. . .” (383 U.S. 1 at 8-9).

    The Court also notes that, “[t]he Congress . . . may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. . . Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites . . . which by constitutional command must ‘promote the Progress of * * * useful Arts.’ This is the standard expressed in the Constitution and it may not be ignored.” (Id. at 5-6).

    As the push for expansion of intellectual property rights continues, the fair use doctrine must be interpreted broadly so that expression is not stifled. This means that judges must consider the theory upon which the monopoly right was granted in the first place–not because of any inherent right to the fruit of one’s labor, but instead, to promote progress. Whatever your personal opinions regarding Prince or his work, the court, by restricting its understanding of what is transformative for the purposes of the fair use defense, has created a rule which effectively prohibits particular forms of expression while discounting the important role of the public benefit in the grant of the copyright monopoly.

  3. Polite No says:

    Nicely stated, but still incorrect. First, people who use found images should still be basically fine. Prince actually solicited copies of Cariou’s book from Cariou (which he asked for…for free!). This was a clear, clear act of bad faith and played directly into the ruling.

    Second, you’ve truncated the quote and therefore lost quite a bit of the essence from Feist. The full quote runs:

    “The primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science and useful Arts.To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship.”

    Thus, the underlying ideas of a work are free to copy, but the expression itself belongs solely to the author. The appropriation artists are essentially seeking a subsidy by demanding they not only be able to use the ideas, but also the expressions (simply because copying has become so cheap–and they, therefore, don’t have to manifest their own expressions of the idea). But this turns the copyright principle on its head–for without incentive to produce the original works, the ideas will not be formed (if all one must do to copy a work under fair use is slap a nude on a piece, who wouldn’t start slapping nudes?) and the dialogue of artistic expression will be snuffed out at the source.

    The court has created no rule, it has simply applied the fair use statute. And Prince is a vital part of the ruling. Court rulings are specific to facts and to generalize them recklessly is illogical and irresponsible.

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