Some years back I attended a CAA session at New York City Bar Association called "Reexamining Appropriation: The Copy, the Law, and Beyond," organized by Martha Buskirk (Montserrat College of Art) and the brilliant IP lawyer and art historian Virginia Rutledge.
That panel was packed with amazing people who discussed everything from copying in the Renaissance to what we think of today as appropriation art. The legal segment of the session offered talks by William Patry, Senior Copyright Counsel for Google (and friend to fair use), and The Hon. Pierre N. Leval, United States Court of Appeals for the Second Circuit. Judge Leval introduced the concept of transformative use in his ground breaking article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), which is now considered an important determining factor in fair use cases.
At that 2007 CAA session I took copious notes and posted some of them to NEWSgrist. I am now re-posting my coverage of the legal segment of that entry here, to be considered in light of the Cariou/Prince case. -->>
William Patry helped us segue from a discussion of art to one of law, no mean feat. His copyright blog, btw, is one of the most current, comprehensive ongoing discussions of fair use, art law, and authorship, around. He is the author of numerous treatises and articles on fair use including the new 7 volume treatise "Patry on Copyright". The most provocative point Patry made was that if there is a problem with copyright in the realm of visual art, it comes from within our own camp, and not from the courts. He pointed out that this is true for every industry now struggling with copyright and IP issues: the problems come from our own deep-seated contradictions.
Patry introduced Judge Leval to the room.
It's always amazing to see the huge conceptual disconnect between the world of law and contemporary art.... but having said that, it's impossible for me to feel any negativity toward The Hon. Judge Leval, as it is his formulation of the concept of "transformative" use (which I have framed on my studio wall) that changed the standard of the courts for the better, and serves as an illuminating concept and useful tool in discussing and determining fair use practices. However, like most people in the realm of law (with some shining exceptions), his understanding of contemporary art is rudimentary; he states this humble fact without reservation and cautions us against wanting anything more from the likes of judges (he doesn't mention lawyers).
Judge Leval expressed his surprise that we comprised an audience hostile to copyright, that artists in general and the previous speakers in the room could regard copyright as a negative thing at all, or even a "capitalist tool." I find this perhaps disingenuous -- how could this surprise anyone who reads the news and keeps up with the corporate shenanigans of, say, the music industry, for example? I believe he was making a point about why copyright exists in the first place, and what it is supposed to be for: it was not something that originated in the court system and then imposed upon the populace. Generally, its the other way around.
Judge Leval stated: "without copyright, authors and artists would still be at the mercy of and dependent on the good graces of wealthy patrons for their living." Speaking of a disconnect -- yikes. He spoke of Bach having to grovel for money to produce a concerto -- sound familiar?
I suppose what's sad is that we don't make a living for the most part, and artists ARE at the mercy of wealthy patrons, the current market system merely piggybacking on an older system of patronage and and power and wealth... oddly enough, copyright doesn't even really seem to come into it.
Winding up, Judge Leval clarified some confusion re: the two famous and seemingly contradictory landmark Jeff Koons decisions: He discussed why you can't compare the old Koons "Puppies" loss (1991) with the recent Blanch v. Koons win (2005); the old case was operating under the old standard in place previous to the 2 Live Crew case (1994), which basically made the world safe for parody, and where the idea of "transformative" use was finally put into play in the courts, hence inaugurating a "new standard":
(b) Parody, like other comment and criticism, may claim fair use. Under the first of the four 107 factors, "the purpose and Page II character of the use, including whether such use is of a commercial nature . . .," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors. Pp. 8-12. [Campbell v. Acuff-Rose Music, Inc.]
In the"Puppies" case, the judge was not even considering whether Koons' use was transformative; that wasn't yet part of the discussion. In the more recent case where Koons won, Judge Robert Sack certainly was considering the transformative question... Leval deemed the latter decision by Sacks as brilliant, informed, "very long" and wonderful. You can read it in full here [pdf]
One of the most germane questions came at the end from organizing co-chair Virginia Rutledge, who asked Leval if he thought that the importance of context and conceptual underpinnings of works of art would ever finally trump visual, formal (superficial) resemblance in the courts. And his reply was that -- to his consternation -- most judges tend to be conservative to the point of being reactionary when it comes to fair use.
Ending on a positive note, however, it was noted that law is not static, and it's a mistake to think of it as such; law is an evolving process, it changes and grows through the demands and needs of the people it is supposed to serve.