Fair use or plagiarism? A new appropriation dispute

Top: Hank Willis Thomas' photo 

Bottom: Graeme Williams’ work

Appropriation art and copyright have not always been best friends. Now, a new dispute may lie on the horizon, as Angela Saltarelli (Chiomenti) explains.

Here's what Angela writes:

South African photographer Graeme Williams was astounded to discover that a whited-out version of one of his famous photographs was recently exhibited during the last Johannesburg art fair by the Goodman Gallery.  

Hank Willis Thomas - an appropriation artist using images of advertising campaigns or of civil rights protests -  realized a black and white version of Williams’ coloured photograph taken in 1991, in Thokoza township in Johannesburg, without asking for any authorization to the author of said photograph.

The original photograph represents one of the symbol of the end of apartheid: a group of children were portrayed taunting some white policemen few weeks after the release from prison of Nelson Mandela, kicking up their legs in a playful adaptation of the toyi-toyi, the south African liberation movement march. The iconic nature of this photograph is recognized anywhere and was also used by Barack Obama during his 2008 political campaign.

Williams claims that Thomas’ derivative work constitutes plagiarism, as there are minimal differences between the two works: the new image is black and white, and the policemen are lightened so that they can be seen by the public only when standing directly in front of the work. Moreover, the new work would not have a different meaning compared to his photograph, the use would be only appropriative rather than transformative.

On the other side, Thomas has defended his piece raising questions on the ownership of Williams’ work, which was taken by the south African photographer without any authorization by the people depicted, implying that even these people were exploited by Williams without consent. Furthermore, Thomas said he was interested with this artwork in questioning how much an artist shall change a work to create a new original work of art and in exploring this grey area of copyright.

Finally, the Goodman Gallery has declared not to be able to determine whether the new work is sufficiently transformative or not. In any case, Thomas’ work was removed from display and the artist agreed not to show it any more in public, offering Williams to keep it for one year and to discuss about it after this period.

Williams refused to take Thomas’ work, finding all proposed amicable solutions unsatisfactory, considering that the price for Thomas’ piece was $36,000, whereas his photograph was never sold for more than $1,200.

If this dispute was brought to court, the outcome would be quite uncertain as the criteria on determining fair use were often subject to different interpretations by the courts as shown in recent cases as: Cariou vs Prince, Graham vs Prince or Bauret vs Koons.

Donald Graham’s Copyright Infringement Suit against Richard Prince Allowed to Go Forward

People interested in the U.S. fair use doctrine owe appropriation artist Richard Prince gratitude for providing several interesting fair use cases to monitor and comment about.

Prince has been the defendant in several high profile cases in the Second Circuit (see here and here). He famously won the Second Circuit Cariou v. Prince case (see here), where the Court of Appeals found that Prince’s use of Patrick Cariou’s photographs to create his thirty paintings and collages featured in his Canal Zone exhibition was fair use, as it was transformative.

Photographer Donald Graham filed a copyright infringement suit against Prince in 2016 (see here and here), claiming that Prince’s use without permission of Graham’s Rastafarian Smoking a Joint photograph, to create an Untitled (Portrait) featured in Prince’s New Portraits exhibition, was copyright infringement. Prince claims it is fair use.

On July 18, U.S. District Judge Sidney H. Stein from the Southern District of New York allowed the case to go forward, as, while granting Prince’s request to dismiss Graham’s demand for punitive damages, he denied Prince’s motion to dismiss the case. The case is Graham v. Prince, 1:15-cv-10160.

Judge Stein noted that, because the fair use defense is fact-related, discovery will be necessary to conduct the fair use inquiry. Therefore, the case cannot be dismissed and will have to go forward. Judge Stein quoted the Second Circuit in Cariou v. Prince, which stated that finding whether a particular use is fair or not requires “an open-ended and context-sensitive inquiry.”

Is this a dead end? 

Prince used Graham’s work almost in its entirety, when he printed and exhibited the original work as originally cropped and posted on Instagram, without Graham’s permission, by another Instagram user, then reposted by yet another user and finally reposted by Prince on his own Instagram account. Prince added the nonsensical comment “ReCanal Zinian da lam jam,” followed by an emoji. Is this add-on enough to make Prince’s work transformative enough to be found fair use?

Prince argued that the use was transformative as it added new messages such as “a commentary on the power of social media to broadly disseminate others’ work,” an endorsement of social media’s ability to “generate[ ] discussion of art,” or a “condemnation of the vanity of social media.” 

Judge Stein was not convinced, finding “evident” that Prince’s work is not “so aesthetically different” from the original work and thus not transformative enough. Untitled (Portrait) does not manifest “an entirely different aesthetic” from the original work, as required under Cariou. Unlike the works featured in the Canal Zone exhibition, Untitled (Portrait) does not render the original work, according to Judge Stein, “barely recognizable” as Princes works did in Cariou.  Instead,

“[t]he primary image in both works is the photograph itself… Untitled simply reproduces the entirety of Graham’s photograph – with some de minimis cropping – in the frame of an Instagram post, along with a cryptic comment written by Prince… There is no question that, notwithstanding Prince’s additions, Graham’s unobstructed and unaltered photograph is the dominant image in Untitled.”

Judge Stein concluded that “[b]ecause Prince’s Untitled is not transformative as a matter of law, the Court cannot determine on a motion to dismiss that a “reasonable viewer” would conclude that Prince’s alterations imbued the original work “with new expression, meaning, or message,” quoting the U.S. Supreme Court Campbell v. Acuff-Rose Music 1994 case.

“Given Prince’s use of essentially the entirety of Graham’s photograph, defendants will not be able to establish that Untitled is a transformative work without substantial evidentiary support.  This evidence may include art criticism, such as the articles accompanying defendants’ briefing, which the Court may not consider in the context of this motion.”

Judge Stein called Cariou v. Prince a “prequel to this action.” However, his fair use analysis does not bode well for Prince, who may this time be found to have appropriated a bit too much. To be continued…

Plus Ça Change… Prince, Rastafarians, and Fair Use

You may remember that Richard Prince, the Gagosian Gallery, and Larry Gagosian have been sued by photographer Donald Graham for copyright infringement in the Southern District of New York (SDNY). Plaintiffs moved to dismiss on February 22, asserting a fair use defense (motion).

Appropriation artists and copyright

Prince used Graham’s Untitled (Portrait) to create one of the works presented at his New Portraits exhibition (see here). The original image had been cropped and posted on Instagram, without Graham’s permission, by another Instagram user, then reposted by yet another user. Prince reposted it again from his own Instagram account, adding the comment “ReCanal Zinian da lam jam,” followed by an emoji (see p. 11 of the motion).

Prince stands at the corner of fair use and copyright infringement

In his motion, Prince placed himself in “a long line of [appropriation] artists” such as Marcel Duchamp, Jasper Johns and Jeff Koons. The latter has been involved in several copyright infringement suits over his work, for instance Rogers v. Koons where the Second Circuit found no fair use. But in Blanch v. Koons, the Second Circuit found that Koon’s appropriation of a photograph reproduced, at a different angle, in a painting was protected by fair use. Following this Second Circuit decision, Judge Stanton from the SDNY denied plaintiff Blanch’s motion for sanctions, which gave him an opportunity to explain the dynamic between appropriation artists and copyright:

“Appropriation artists take other artists' work and use it in their own art, appropriating it and incorporating it in their own product with or without changes. Because of this appropriation, often (as in this case) done without giving credit to the original artist, the appropriation artists can expect that their work may attract lawsuits. They must accept the risks of defense, including the time, effort, and expenses involved. While that does not remove the appropriation artist from the protection of the statute, litigation is a risk he knowingly incurs when he copies the other's work.”

Is this case the same as Cariou?

In his motion, Prince argued that, in Cariou v. Prince, “the Second Circuit held that “appropriation art” created by Prince that is substantially similar to the artwork at issue here constituted fair use as a matter of law” and argues that the Graham lawsuit “reflects an attempt to essentially re-litigate Cariou and should be dismissed with prejudice”(p. 2).

However, every fair use case is different since fair use is a mixed question of law and fact, as acknowledged by Prince on p. 12 of his motion. In Cariou, the Second Circuit set aside five artworks, remanding to the SDNY to consider whether the use of Cariou’s work was fair. Because the case settled, the SDNY did not have an opportunity to rule on that point on remand. Whether a court will find this Prince work to be fair use is an open question.

Is Prince’s character of the use of Graham’s photograph the same than his use of Cariou’s photographs? The Second Circuit noted in Cariou that “[t]he portions of the [Cariou photographs] used, and the amount of each artwork that they constitute, vary significantly from piece to piece” (at 699). As the affirmative defense of fair use is a matter of both law and fact, Cariou cannot be interpreted as the Second Circuit having given carte blanche to Prince to create any derivative works based on Rastafarian photographs “as a matter of law.” Indeed, in Cariou, the Second Circuit took care to note that its conclusion that twenty-five of Prince’s works were protected by fair use “should not be taken to suggest… that any cosmetic changes to the photographs would necessarily constitute fair use“ (at 708).

Fair use or not?

The Graham photograph is somewhat similar to the Cariou photographs, as they are classic black and white portraits of a Rastafarian. However, if the nature of the original work is one of the four fair use factors used by courts to determine whether a particular use of a work protected by copyright is fair, the first factor, the purpose and the character of the use, is “[t]he heart of the fair use inquiry” (Blanch at 251).

A work is transformative, as explained by the Supreme Court in 1994, if it does not merely supersede the original work, but instead “adds something new, with a further purpose or different character, altering the first with a new expression, meaning or message… in other words, whether and to what extent the new work is transformative”, Campbell v. Acuff-Rose Music, Inc., at 577-578.  

What is determining is whether the new work is transformative, and Prince recognizes this in his motion (p.1). He argued that, by incorporating Plaintiff’s photograph into a social media post, and adding “Instagram visuals and text,” the derivative work has become “a commentary on the power of social media to broadly disseminate others’ work” (p.3).

To create his Canal Zone series, Prince had torn multiple photographs from the Cariou book, enlarged them using inkjet printing, pinned them to plywood, then altered them by painting or collaging over them, sometimes using only parts of the original photographs, sometimes tinting them, sometimes adding photographs from other artists. The result was declared fair use by the Second Circuit. In our case, Prince inkjet printed his original Instagram repost of the Graham picture, complete with his comment, with no further change, except for the change in format and size.

But whether a particular work is transformative does not depend on the amount of sweat of the brow, and a derivative work can be created by a mere stroke of the pen, such as Marcel Duchamp’s L.H.O.O.Q. Nevertheless, the more detailed the process to create a derivate work is, the more likely it is transformative.

It remains to be seen if the SDNY will find this new Prince appropriation work to be fair use. The court is becoming somewhat an expert on appropriation art. Jeff Koons has recently been sued in the SDNY for copyright infringement over the use of a photograph by a commercial photographer, Mitchel Gray. Gray claims that his photograph of a couple on a beach, which he had licensed in 1986 to Gordon’s Gin for the company to create an ad, was reproduced the same year by Koons as part of his “Luxury and Degradation” series. Koons reproduced the whole ad, with no change. Mr. Gray only discovered this use in July 2015 and filed his suit.

We’ll see how this case and the Koons case will proceed. ReCanal Zinian da lam jam.

Image is courtesy of Flickr user Joseph Teegardin under a CC BY-ND 2.0 license.

 

Only Thing That Counts is… Fair Use?

Andy wrote a while ago on this blog about Richard Prince ‘repurposing’ once more photographs taken by third parties to create this time art presented in his New Portraits exhibition, and a rather lucrative art that is, both for him and for the gallery representing him.

Now, photographer Donald Graham has filed a copyright infringement suit against Prince, the Gagosian Gallery, and its owner Larry Gagosian (Thank you Mark Jaffe for posting the complaint!) Graham claims that Prince used the “Rastafarian Smoking a Joint” photograph without permission in the New Portraits exhibition. Prince presented inkjet prints on canvases of images he had found on Instagram, complete with his own comments as @richardprince4nd. This did not fare well with several authors of the photographs, but so far Donald Graham is the only one who has taken legal action.

It is not the first time that Richard Prince is been sued for copyright infringement. Patrick Cariou, the author of the Yes Rasta photography book, sued Prince after he had used some of the Yes Rasta photographs to create his Canal Zone series, also presented at the Gagosian Gallery. The Second Circuit found this use to be fair. Just like Cariou, Graham had traveled to Jamaica and taken black and white pictures of Rastafarians after gaining their trust. Does that insure that a court will find Prince’s use of Graham’s work to be fair?

This Time, It May Not Be Fair Use

Fair use is a defense to copyright infringement, but it is not fool-proof or automatic. Instead, judges use four non-exclusives factors to determine if a particular use of a work protected by copyright is fair: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken, and (4) effect of the use on the potential market.

Is Fair Use Once More Coming to Town? 

The second and the third factor are likely to favor Graham, as the work reproduced is artistic, and has been reproduced in its entirety. Therefore, the first and the fourth factor will probably decide whether the use is fair or not.

Graham had not posted himself a reproduction of his work on Instagram, but a third party did, without Graham’s authorization. Under the post, Prince added the comment ““Canal Zinian da lam jam”, which may allude to his Canal Zone series, deemed to be fair use, and printed the page featuring the Graham photograph and his comments.

In Cariou v. Prince, the Second Circuit noted that “Prince altered [the Cariou] photographs significantly” (at 699). Adding a nonsensical comment under a photograph, even if one chooses to describe it as poetry, is not a significant alteration of the original work. This point is likely to be debated by the parties, as the Supreme Court stared in Campbell v. Acuff-Rose Music, when explaining the first fair use factor, that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that weigh against a finding of fair use" (at 579).

In Cariou, the Second Circuit explained:

“These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative.”

In our case, one would be at pain to describe Prince’s use of Graham’s photography as being “hectic and provocative. “ It may be considered a provocation, but this does still not make the work “provocative” for fair use purposes.

Prince knows how to provoke: he posted a comment about the Graham suit on Twitter: “U want fame? Take mine. Only thing that counts is good art. All the everything else is bullshit.” Interestingly, fair use protects art whether it is good or not, without the judges having to concern themselves about whether fair use is good art or not, or even if it is art at all, or whether the author of the work is famous or not .

As for the fourth factor, the effect on the use on the market, Graham does license his work, including the work at stake, which was not the case in Cariou, and so Prince’s use may be deemed to have an effect on the market.

A Lucrative Business, Thanks to Copyright

Graham posted on Instagram a view of the New Portraits exhibition, including the print reproducing his own work, and added the hashtag #PrinceofAppropriation. The complaint argues that Prince “has achieved notoriety in the “appropriation art” industry for his blatant disregard of copyright law” (at 23).

All the prints forming the New Portraits exhibition have been sold. The Gagosian Gallery has published a catalog of the exhibition, and, according to the Complaint (at 35) “a gigantic photograph of the Exhibition prominently featuring the Infringing Work on a billboard at 50th Street and West Side Highway in New York City for several months, until at least July 2015.”

As noted in the complaint (at 28), the Gagosian Gallery is aware that copyright law prevents a third party to reproduce its inventory without permission (“All images are subject to copyright. Gallery approval must be granted prior to reproduction.” Therefore, Graham himself would have to ask permission to reproduce the unauthorized reproduction of this work by Prince reproducing the original unauthorized post on Instagram by a third party (dizzy yet?).

This case is on the watch list of every IP attorney in the US. Happy New Year!

Image is courtesy of Flickr user jpmueller99 under a CC BY 2.0 license.