1. 1 All’s Fair in Love and Art? Predominant Purpose, Transformation, and the Triumphant Return of Satire The Taste of Art – Krannert Art Museum Professor Michael D. Murray University of Illinois College of Law ©2008 Michael D. Murray All Rights Reserved

2. 2 Art Law Intellectual Property Law First Amendment Law Artist’s Business Relationships International and Transnational Law concerning Movement of Art and Preservation of Cultural Heritage and Cultural Property

3. 3 Intellectual Property Law CopyrightCopyright TrademarkTrademark Moral RightsMoral Rights Economic RightsEconomic Rights Right of Publicity and other Personality RightsRight of Publicity and other Personality Rights

4. 4 First Amendment Law Censorship of Obscenity and PornographyCensorship of Obscenity and Pornography Protest ArtProtest Art Private and Indirect CensorshipPrivate and Indirect Censorship

5. 5 Transformation and Predominant Purpose – a convergence of usage Copyright fair use Right of Publicity First Amendment fair uses, incl. artistic expression Copyright originality requirement First Amendment and censorship TransformationRequirement Copyright Fair Use Right of Publicity First Amendment Fair Use CopyrightOriginality First Amendment and Censorship PredominantPurpose

6. 6 Concept of Transformation Folsom v. Marsh (1841) (Justice Story) (“Writings of Geo. Washington”) – the fair use case of the 19 th Century “Look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. ” “Much must, in such cases, depend upon the nature of the new work, the value and extent of the copies, and the degree in which the original authors may be injured thereby.”

7. 7 Transformative Purpose Harper & Row v. Nation Enters. (1985) (Gerald Ford Memoirs) Improper purpose: when the new work “supplants” the original With news reporting, “The Nation has every right to seek to be the first to publish information. But The Nation went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, … [an] unauthorized first publication of a noted figure's copyrighted expression”

8. 8 The Term, “Transformative” Judge Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990): Purpose and character of use Whether and to what extent the new work is “transformative.” Does it add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message”?

9. 9 Transformation and Fair Use Campbell v. Acuff-Rose (1994) (2 Live Crew's take on Orbison's "Pretty Woman") Adopts “Transformative” as a valuable attribute of the “purpose and character of the use” 17 U.S.C. § 107(1) Transformative nature also favorably affects the other three fair use factors 17 U.S.C. § 107(2)-(4)

10. 10 Transformation and Fair Use Factors Campbell v. Acuff-Rose and Leval: (2) Transformative use can make use of published or unpublished, famous, copyrightable works (3) The use can take large amounts of the original as long as the end product is transformative (4) Transformative works don’t compete directly in market for original because of their new content, new meaning, new expression

11. 11 Transformation and Parody and Satire Campbell v. Acuff-Rose (1994) - Intended or unintended consequences? Parody was enthroned as a proper fair use Satire was banished as a proper fair use

12. 12 Transformation and Fair Use: the banishment of satire Campbell v. Acuff-Rose (1994): Parody is a proper fair use in large part because a parody is transformative: it shows two works – original and parody, with very different meaning and message Parody must borrow from the original in order to reveal the object of its attack But parody cannot supersede the objects of or supplant the original because it must criticize the original or the original’s author. Thus, it is no market substitute for the original

13. 13 Transformation and Fair Use: the banishment of satire - Campbell v. Acuff-Rose (1994): Satire is not a proper fair use because there is no special reason why a satire must borrow from the original; satires must stand on their own to justify the theft from the original Satire doesn’t necessarily criticize or comment on the original it steals from A satire can exist for approximately the same purposes as the original (e.g., entertainment, art). Thus, it can supersede the objects of or supplant the original [But can’t satires be transformative?]

14. 14 Dr. Seuss Enters. v. Penguin Books Satire, not fair use

15. 15 Walt Disney v. Air Pirates Satire, not fair use

16. 16 Columbia Pictures v. Miramax Satire, not fair use

17. 17 Steinberg v. Columbia Pictures Not a parody (not really a satire either), not fair use

18. 18 Leibovitz v. Paramount Pictures Parody, fair use

19. 19 Right of Publicity Typical Elements Use of person’s name, image, likeness, or other attributes (voice, stage act, mannerisms) On products, goods, merchandise or in the advertising of the same For some advantage (usually commercial) Without consent

20. 20 Right of Publicity – First Amendment Freedom of Expression Defenses Comment and criticism Artistic expression News reporting of newsworthy events Advertising and promotion of the speaker’s activities relating to one of the above uses

21. 21 Transformative Requirement Comedy III v. Saderup (Cal. 2001) Borrowing from copyright “fair use” standards, Cal Supreme Ct said balancing of publicity against artistic expression requires art to be “transformative” Question: Is the work merely a depiction of the celebrity, no matter how skillfully executed, or did the artist add new creative expression that has value beyond that of star’s image? Subsidiary inquiry: would average member of public buy this for the art or the artist or for the celebrity’s image?

22. 22 Comedy III v. Saderup Three Stooges – You Nazty Spy Saderup’s Three Stooges Not transformative, Not fair use

23. 23 Hoepker v. Kruger Hoepker Photograph: “Charlotte as Seen by Thomas” Kruger Additions

24. 24 Hoepker v. Kruger (S.D.N.Y. 2002) Reinforces the liberal “New York” interpretation of artistic expression over right of publicity as in Simeonov v. Tiegs But goes on to say that Barbara Kruger would have satisfied the Comedy III transformative test with her art

25. 25

26. 26 ETW v. Jireh (6 th Cir. 2003) Artistic Expression Defense First Amendment right to expression through art was preserved over Tiger’s rights to control and exploit his image Court reinforces idea that art is expected to be sold commercially and it has no effect on the 1st Amend. analysis * Also found the use to be transformative under Comedy III

27. 27 The Emergence of Predominant Purpose in Right of Publicity Law BALANCING Test: Value of First Amendment Activity vs. Publicity Rts, as described in Cardtoons case ETW also found that Rick Rush passed the Cardtoons Balancing test RELATEDNESS Test: The use must be related to a proper expressive activity as described in Rogers v. Grimaldi ETW said it was related to Rush’s speech

28. 28 Cardtoons

29. 29 Cardtoons: Balancing Test Purpose of the expressive activity of Cardtoons was to parody Major League players’ salaries, arrogance, self-importance Balance of Rights: Allowing celebrities to quash criticism and lampooning serves no public policy purpose as valuable as First Amend. purpose Balance in favor of parodic criticism

30. 30 Ginger Rogers & Rosa Parks

31. 31 Rogers v. Grimaldi: Relatedness Test Image or name of celebrity can be used if related to expressive content of work, and Purpose of use is expressive, not simply a disguised advertisement for unrelated commercial services or products Rogers and ETW passed the test Parks (6 th Cir. 2003) failed the test

32. 32 Doe (*Tony Twist) v. TCI Cablevision (*Todd McFarlane) (Mo. 2003) Coining the Predominant Purpose Test Tony Twist The other “Tony Twist” McFarlane

33. 33 Doe (*Tony Twist) v. TCI Cablevision (*Todd McFarlane) (Mo. 2003) Coining the Predominant Purpose Test Is the Predominant Purpose of the use of the celebrity’s image expressive or commercial? TCI (McFarlane) failed the test CBC Distribution (8 th Cir. 2007) – fantasy baseball site passed the test

34. 34 One test to rule them all, one test to bind them... The Predominant Purpose Test is the Cardtoons test and the Rogers test Cardtoons: Is the purpose of the work and the use of the celebrity’s image predominantly expressive or exploitive? – i.e., which tips the balance? Rogers: Is the purpose of the work and the use of the celebrity’s image predominantly a commercial exploitation unrelated to expression or a purpose and use related to expression?

35. 35 One test to rule them all, one test to bind them... Is there a connection between Transformation and Predominant Purpose in right of publicity law? ETW passes the Cardtoons test, the Rogers test, and the Comedy III test Hoepker passes the Cardtoons test and the Comedy III test (ignores the Rogers test) Parks fails the Cardtoons test, the Rogers test, and the Comedy III test

36. 36 One test to rule them all, one test to bind them... Would the Predominant Purpose test work as a fair use test in copyright law? Transformative uses add new content, meaning, or expression They do not supplant the original They do not compete with the original On balance, they are more expressive than exploitive of the original So the Predominant Purpose of Transformative uses is more expressive than exploitive

37. 37 Would the Predominant Purpose test work as a fair use test in copyright law? The Predominant Purpose of Transformative uses is more expressive than exploitive Campbell: Song was more about expression of opinion relating to outdated Orbison song; not about exploitation of Orbison Liebovitz: Ad was more about the joke, the ironic comment related to the original work; not about exploitation of Liebovitz’s work Steinberg, Columbia v. Miramax, Air Pirates, Dr. Seuss more about exploiting the original work for attention and commercial value than expression related to the work

38. 38 But First Amendment law, too?? Is there a connection between Transformation and Predominant Purpose in First Amendment law? Convergence in copyright, right of publicity, and First Amendment law? Yes It’s all about balancing property rights with free expression rights

39. 39 Copyright and the balance of First Amendment rights Copyright and Free Expression both are constitutional rights – U.S. Const. art. I, § 8 and amend. I Free expression is manifestly limited by copyright Copyright monopoly must be carefully restrained to allow free expression Fair use doctrine, de minimis use doctrine, public domain doctrine, and the originality requirement in copyright all seek to effectuate this public policy

40. 40 Originality and First Amendment rights Originality is about what is copyrightable and what is not In part to allow free expression on all matters not subject to copyright Originality doctrines: idea-expression distinction, scenes a faire, merger doctrine, facts doctrine, functionality doctrine all about free speech Originality requirement calls for transformation – new content, meaning, or expression

41. 41 Originality and First Amendment rights Originality Requirement for new works: some new content, meaning, or expression showing a modicum of creativity Originality Requirement for derivative works: new copyright only extends to the new content, meaning, or expression Originality Doctrines: the ideas expressed in the work must be transformed by the author or artist – the arrangement, depiction, modification of the ideas must reveal new content, meaning, or expression

42. 42 Predominant Purpose and Censorship Censorship: artistic expression is speech, it should not be censored for its content without strict scrutiny But when is an activity expression? artistic activities might be expressive or not Bery v. City of New York (2d Cir. 1996): selling art is directly connected to the expression of art; the rights to create and express art are nothing without the right to sell Mastrovincenzo v. City of New York (2d Cir. 2006): If predominant purpose of artistic activity is expressive, limited ability to censor. If commercial, greater ability to censor. Selling hand-decorated t- shirts is more commercial than expressive.

43. 43 Good news or bad news for artists? Good news: the same activities of creation support copyrightability of your own work, the fairness of your use of other’s work or their image or likeness, and the likelihood of protection from censorship AS LONG AS your motive is to be creative – to create new content, meaning, expression – and not exploitive (to rip off another to avoid the drudgery of being creative)

44. 44 Good news or bad news for artists? Good News about Balancing vs. Bright Line Rules: Discussions of fair use often revolve around assertions of “you can’t do that!” In fact, recognition of my thesis confirms that all decisions are balanced on a case-by-case basis, not tied to bright line rules You can do it, if your work is transformative, if the predominant purpose is expressive not exploitive

45. 45 Is satire back? - The legacy of Jeff Koons Rogers v. Koons –String of Puppies, not fair use United Features Synd. v. Koons –Odie the Dog from Garfield, not fair use Campbell v. Koons –Boys with Pig, not fair use

46. 46 Blanch v. Koons (2006) << Blanch’s Silk Sandals Koons’s Niagara>>

47. 47 Blanch v. Koons___ The Second Circuit found that Koons's use of the photograph was transformative But as a satire, not a parody

48. 48 Blanch v. Koons “The question is whether Koons had a genuine creative rationale for borrowing Blanch's image, merely to get attention or avoid the drudgery in working up something freshrather than using it ‘merely to get attention or avoid the drudgery in working up something fresh.”’ predominant purpose (satire)In other words, the predominant purpose (satire) was creative and expressive, not commercial and exploitive

49. 49 The End ©2008 Michael D. Murray All Rights Reserved