Fair Use in US Law: The Path to Marano v. Metropolitan Museum of art.

AuthorAmineddoleh, Leila

During the past decade, a number of legal decisions concerning copyright law and the application of the Fair Use Doctrine has led to confusion and uncertainty.

COPYRIGHT INFRINGEMENT

Many artists are inspired or informed by artists preceding them, and so it is only natural that artists may build upon the work of others. However, there is a point at which 'inspiration' becomes 'infringement'. This line is sometimes difficult to draw, especially with the advent of appropriation art (the intentional borrowing, copying, and alteration of existing images and objects (1)). As one may imagine, the creation of appropriation art has led to many high-stakes battles. But due to the fact-intensive inquiries involved in making a copyright infringement determination, courts have made inconsistent decisions, leaving uncertainty and confusion in their wake. Disputes involving fair use assertions plague artists because it is challenging, if not impossible, to predict whether a court will determine that a specific use of a copyrighted work falls under this exception. In 2013, the Second Circuit Court of Appeals in NY made a determination in Cariou v. Prince that favoured appropriation artists. Then earlier this year, two copyright infringement cases (Andy Warhol Found, for the Visual Arts, Inc. v. Goldsmith (2) and Monroe v. Metropolitan Museum of Art (3)) were decided by the Second Circuit that questioned the court's ruling in Cariou. To understand these cases, it is important to examine earlier applications of copyright law and the Fair Use Doctrine.

ROGERS v. KOONS

Artist Jeff Koons, no stranger to controversy, has been sued numerous times over the years for his appropriations. (4) A case dating back to 1990 was the first instance of copyright infringement between artists to not be settled out of court. (5) Art Rogers, a photographer, licensed his photograph, named Puppies, for reproduction on a notecard. A few years later, Jeff Koons created a sculpture named String of Puppies that was based on the photograph: Koons had sent the card to a sculpture studio for reproduction, requesting that the image be made in three dimensions. The photographer sued Koons and the artist's gallery representative, Sonnabend Gallery, Inc., asserting that Koons had committed the offence of copyright infringement under the Copyright Act, 17 U.S.C. [section]101 et seq. Koons argued that his sculpture was a fair use of the photograph. (Fair use acts as a defence to copyright infringement and permits the limited use of copyrighted material without having to acquire permission from the copyright holder. Determining whether something constitutes fair use involves examining a four-factor test, which is discussed in greater detail below. However, courts typically examine whether the alleged infringer has experienced an economic benefit from the use.)

The Court denied Koons' fair use defence under 17 U.S.C. [section] 107, ruling in favour of Rogers. As Koons had sold three copies of the sculpture for a total of $367,000, the Court found that Koons' work was commercial in nature. Additionally, Koons demonstrated bad faith by removing the photograph's copyright mark on the notecard before supplying it to the sculpture studio. The Court additionally held that Koons' sculpture was not a parody or satire that qualified for fair use purposes, because String of Puppies ultimately criticised modern society, not the original work it copied.

CARIOU V. PRINCE

The Fair Use Doctrine was rigorously examined in Cariou v. Prince, (6) This controversial case pitted the art world (predominantly in support of Prince) against the photography community (supporting Cariou). Patrick Cariou published a book of photographs of the Rastafarian community in Jamaica, and Richard Prince then used those images to create the series Canal Zone. The works were direct copies of Cariou's images that Prince had changed in some way, either through altering their sizes, blurring or sharpening images, superimposing additional content on the images, or combining the images with other photographs. Prince then displayed the works at the Gagosian Gallery. The Gallery sold eight of Prince's works for a total of $10,480,000, and traded another seven of them for works of art valued between six and eight million dollars in total. After the exhibition, Cariou filed a copyright infringement lawsuit against Prince, the Gallery, the Gallery's owner and the printer of the exhibition catalogue.

The District Court noted that Cariou indisputably had a valid copyright in his photographs. (7) The Court went on to find that Prince's use of the photographs constituted copyright infringement and held the Gagosian Gallery and Lawrence Gagosian (the Gallery's owner) liable for contributory and vicarious infringement. The District Court decided that Prince's use of Cariou's works was not covered under the fair use doctrine. In making its determination, the Court applied the four-factor analysis outlined in Section 107 of the 1976 Copyright Act:

(1) 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; (4) the effect of the use upon the potential market for or value of the copyrighted work. (8)

In terms of the character of the work, the District Court considered both bad faith and the commercial nature of the works. The Court noted that Prince continued selling the works in the Canal...

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