This case came across my desk today. In it, the US Court of Appeals for the Second Circuit (which is located in New York City).
Cariou is a photographer who put together a collection of his photos in a book called Yes Rasta. Prince is an “appropriation artist”; he takes original works of art and incorporates them into his own artwork. Cariou discovered that Prince had done this with works from Yes Rasta and sued for copyright infringement in the US District Court for the Southern District of New York, which is well known as a court with a substantive precedent in case law in copyright matters. Prince raised a fair-use defense. The District Court (Batts, J.) granted summary judgment to Cariou, requiring Prince to disgorge all the works he made for Cariou to destroy or otherwise dispose of; Prince appealed, claiming his works are “transformative,” and thereby qualify for the fair-use defense (17 U.S.C. 107).
By statute, courts apply four factors in a fair-use analysis: “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and 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.” 17 U.S.C. 107.
Fair use is always a fog. It is an incredibly specific body of law that bends and flows with each new case, and the courts struggle with applying it fairly. Here, the district court attempted to impose a bright-line rule that, for a work to qualify for fair use, there must be some intended comment on the original work: “Ruling on the parties’subsequently-filed cross-motions for summary judgment, the district court (Batts, J.) “impose[d] a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works” in order to be qualify as fair use, and stated that “Prince’s Paintings are transformative only to the extent that they comment on the Photos.” Cariou v. Prince, 784 F. Supp. 2d 337, 348-49 (S.D.N.Y. 2011).” Slip Op. at 8.
Along comes the US Court of Appeals for the Second Circuit and slaps that one down: “The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Cariou, 784 F. Supp. 2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s Oh, Pretty Woman “was clearly intended to ridicule the white-bread original.” Campbell [v. Acuff-Rose], 510 U.S. 569 (1994) at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Id. at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.” Campbell, 510 U.S. at 579; see also Blanch v. Koons, 457 F.3d 244, 253 (2000) (original must be employed “in the creation of new information, new aesthetics, new insights and understandings” (quotation marks omitted)); Castle Rock, 150 F.3d at 142.” Id. at 11-12.
The Second Circuit holds that, in a fair use determination, “What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so. Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may “reasonably be perceived” in order to assess their transformative nature. Campbell, 510 U.S. at 582; Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113-14 (2d Cir. 1998) (evaluating parodic nature of advertisement in light of how it “may reasonably be perceived”). The focus of our infringement analysis is primarily on the … artworks themselves,…”
Thus, once again the court holds that fair use does not lend itself to any bright-line rules. Fair use remains a close, careful examination of all of the facts and factors of each particular case, applying a reasonable person standard to whether the work is transformative.
The case goes on to discuss the other three statutory factors; these, though, tell us less than does the court’s discussion of “transformative use.”