Sometimes It is Hard to Love Fair Use…

There has been a lot of talk lately about the use of photographs to create derivate works. Andy recently wrote on this blog about the new Richard Prince exhibition, New Portraits, which presents ink-jet prints of photographs posted on Instagram by third parties, complete with Richard Prince’s own comments under the original posts. Asim wrote about a recent French case, where the Cour de cassation found that the right of expression of an artist who had used fashion photographs to create several paintings trumped the copyright of the fashion photographer, citing article 10 of the European Convention on Human Rights (ECHR).

I read this week an i-D article about the use of a photograph created by Tayler Smith and Arabelle Sicardi, representing trans model Hari Nef. This photograph, Hari Nef, was presented last year in New York City as part of the Most Important Ugly exhibition, which featured 13 portraits of individuals wearing stunning makeup. As Tayler Smith explained on her blog, she asked each subject a series of questions “about shame, safety, power, family and beauty” and so the exhibition was a carefully executed project, not a mere point-and-click show.

These two artists recently learned about the use of their photographic work after friends saw an article in The New Yorker about an exhibition by Yale’s M.F.A. students, which featured some of their works presented, at the Danziger Gallery in New York City until today. One of works presented by the M.F.A. students is Cheeks, which is credited online as a “Photograph by Zak Arctander.” Arctander used a black and white print of the color photograph Hari Nef, tore parts of it and painted red and blue strands of colors across the photograph, then printed the result on vinyl. So is it not a “photograph” but a derivative work of art. The title of the work refers to the gesture made by Hari Nef in the Smith and Sicardi original work, pulling her cheeks out while smiling at the camera. The original authors of the photograph were not credited in The New Yorker article or on the Danziger Gallery website.

Photograph by Zak Arctander. Source:  The  New  Yorker

Is this Fair Use?

It seems that Arctander did not ask permission to use Hari Nef to create Cheeks. Therefore, the use could be copyright infringement, unless it is considered to be fair use. The use is probably transformative enough to be fair use, as it does not merely supersede the original work, but adds something new to it, as explained by the Supreme Court in Campbell v. Acuff-Rose Music., Inc. However, the fair use defense is a question of both facts and law, and courts consider four factors to determine whether a particular unauthorized use is fair. But this debate must take place in a court of law, and no cease-and-desist letter has been sent, and no copyright infringement suit has been filed. Hiring an attorney is a serious financial obstacle for many artists, and litigation is long and costly. They may also choose not to pursue it. Therefore, the discussion of whether a particular use of an original art piece to create a derivative work is indeed fair is often left to commentators. One can regret this, and hope that the Congress will eventually create small claims copyright courts, which could serve as a venue for all the artists to discuss the fairness of a particular use.

Droit Moral

Tayler Smith wrote a passionate blog post about the whole story, where she lamented the use of female art by male artists. Arabelle Sicardi tweeted on June 18: “my art of @harinef i made w @NotTaylerSmith was stolen by a male artist and then featured in @NewYorker DOES THIS MEAN IM A REAL ARTIST NOW.  I believe she and Smith indeed are, but that is not the point here. However, without having to discuss whether this is indeed a case where a male artist used women’s art to his own advantage, it appears that both Smith and Sicardi see this instance as such. Therefore, it could be argued that their droit moral has been violated.

However, the U.S. recognizes only a very limited droit moral. The Visual Artists Rights Act (VARA), 17 U.S.C. §106A gives the author of a work of visual art a right to attribution. Hari Nef is indeed a work of visual art under VARA as it is “a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” The moral rights provided by VARA to authors include the right to claim authorship of the work, and also “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.” While Hari Nef has been modified, it does not appear that such modification is prejudicial to the authors of the work. However, they could still claim under VARA their right to be credited as the authors of the original work.

Right of Publicity and Freedom of Speech

The subject of the photograph is Hari Nef, a trans model. Could she file a right of publicity suit?

The Yale MFA show is on view now in New York City, in a state which has a statutory right to publicity, N.Y. Civil Rights Laws §§ 50 and 51. However, courts in the Second Circuit also consider the First Amendment rights of the author of the derivative work. In Hoepker v. Kruger, the SDNY found in 2002 that the right to publicity of a woman, the subject of a photograph taken by Thomas Hoepker in 1960 to create his Charlotte as Seen By Thomas image, had not been infringed by Barbara Kruger who used the photograph thirty years later to create a silkscreen collage. This reasoning could also probably apply to Richard Prince’s New Portraits, would a subject of the Instagram photographs file a right to publicity suit.

Privacy in One’s Image Does not Always Trump Freedom of Speech in France

The right in the privacy of one’s image must also defer to freedom of speech in France. The case Asim wrote about did not deal with right of publicity issues, but, for the sake of this discussion, let’s imagine that the fashion model in the photograph had filed suit, claiming that using her likeness to create a work of art infringed on her right in the privacy of her image (droit à l’image) This claim would probably not have been successful, as the Cour de cassation recently held, in another case, that the right to freedom of expression and of information, protected by article 10 of the ECHR, trumps the droit à l’image of a writer. In this case, a man, known in France for his extreme-right views, had been interviewed by a television crew making a documentary about the anti-Semitic Protocol of the Elders Sion book and how some Holocaust negationists are still presenting it as an authentic document. The crew had signed an agreement with the man interviewed, giving him a right to view the documentary before its broadcast. However, the documentary was shown on television without him being able to see it first. He claimed an infringement of his droit à l’image, but the Cour de cassation ultimately found that as he had participated in the public debate about the book, his image could be legally used in the documentary, even though he had not been able to watch it beforehand.

So there is not much to be done from a legal point of view. However, the authors of the original photograph have been hurt, and Anabelle Sicardi wrote about the rage she and Tayler Smith felt when discovering the unaccredited use. VARA gives them the right to have their work credited. A court may find the use of their work to be fair use, or not, but the debate may not take place in court of law, maybe because of financial considerations. There is a need to find a balance between the rights of all of the artists, including, of course, the right to create derivative work. How could this be best achieved?