Powerpoint Templates Appropriation as Legitimate Practice: Rethinking Fair Use in a Networked Society xtine burrough Genelle Belmas California State Univ., Fullerton

Powerpoint Templates xtine would be here except:

Powerpoint Templates Appropriation as Legitimate Practice: Rethinking Fair Use in a Networked Society “Only those with no memory insist on their originality.” – Coco Chanel

Powerpoint Templates “Kind of Bloop” chiptune recording cover Original photo © Jay Maisel. Low-resolution images used for critical commentary qualifies as fair use. (Usually! Sometimes!) Andy Baio paid Maisel $32,500 to settle, and cannot use the image anymore

Powerpoint Templates The fair use doctrine 1978 act (17 U.S.C.§107) Allows some uses of copyrighted work without an explicit grant of permission Balancing test made up of four parts

Powerpoint Templates The fair use doctrine: four parts Purpose and character of the use –Commercial vs. educational –Transformative vs. reproductive Nature of the copyrighted work –Fictional vs. factual –Degree of creativity required Amount and substantiality used; and Effect of the use upon the market (or potential market) for original work

Powerpoint Templates Transformation Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) –2 Live Crew parody of “Oh, Pretty Woman” (Roy Orbison) –Court said this was a fair use: “The central purpose of this investigation is to see … 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’”

Powerpoint Templates Disconnect between fair use and appropriation art Appropriation is a two-part process –First: borrowing, copying, lifting, or referring to an original cultural product (an image, an object, a film, a website). If one stopped here, this form of copying would likely be described as plagiarism –Second: transforming, intervening, flipping, or interpreting (conceptual play, cultural resistance, marketplace defiance, etc.) – fair use has problems with this part

Powerpoint Templates Ex. 1: Richard Prince’s “Canal Zone” paintings Left: from Patrick Cariou, Yes, Rasta, Right: from Richard Prince, Canal Zone, 2007.

Powerpoint Templates Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011) Cariou’s book resulted from six years photographing Rastafarians in Jamaica Prince said he appropriates others’ images to “get as much fact into his work and reduce … the amount of speculation” –Judge’s interpretation: “[Prince] chooses the photographs he appropriates for what he perceives to be their truth – suggesting that his purpose in using Cariou’s Rastafarian portraits was the same as Cariou’s original purpose in taking them: a desire to communicate to the viewer core truths about Rastafarians and their culture”

Powerpoint Templates Ex. 2: Jeff Koons’ “String of Puppies” Left: Art Rogers, Puppies, Right: Jeff Koons, String of Puppies, 1988 (four copies).

Powerpoint Templates Rogers v. Koons, 960 F.2d 301, 2d Cir., 1992 Koons commissioned the sculpture as part of his “Banality Show” – copied image from a postcard Summary judgment against Koons for © infringement was affirmed because the copying was for profit rather than a parody –“…though the satire need not be only of the copied work and may, as appellants urge of ‘String of Puppies,’ also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work”

Powerpoint Templates What problems need to be addressed? What does “transformed” really mean? Are judges artists, or sufficiently trained to recognize the artistic commentary or parody of appropriation art? Why is the creator (author) so deified? Should it be so? What are the real damages?

Powerpoint Templates Thoughts from A. Steiner, “A Few Observations on © and Art” (2013) Appropriated artists benefit from appropriation in sales and impact (cultural value) –“Influence on later artists is one of the most important objective measures of an artist’s historical importance. Thus, the more later artists ‘cite’ an earlier artist in their work, the more historically relevant the earlier artist becomes.” Exceptions should be made for unique or small-run pieces

Powerpoint Templates A new formulation for fair use in defense of appropriation Collapse the first two elements: Degree of transformation on creative copyrighted works (rather than purpose of the use and nature of the work, since we assume the work is creative and appropriated) Eliminate the third element (where appropriation is concerned it’s concept, not quantity, that matters) Consider harm (the fourth element) in light of the uniqueness of the resulting art and art- historical progress/artistic reputation (cultural value ascribed to the original)

Powerpoint Templates Huxley-Lester model “The more you know, the more you see” The Gestalt Law of Past Experiences is at play—a viewer’s ability to connect a prior work to a transformative piece influences their judgment of the transformative quality of the new work Require expert witnesses or judicial training on art history/visual literacy

Powerpoint Templates Questions?