Tuesday, March 25, 2008

The implications of allowing creative appropriation art

In Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)(pdf), the Second Circuit did seem to adopt a version of the reasoning in the preceding post: a work that appropriates the heart of another copyrighted work constitutes fair use as long as it (1) is a genuinely creative work and (2) does not exploit a market created by the copyrighted work. As previously noted on this blog, the Second Circuit concluded that Koons' painting, Niagara, passed the "transformative test" “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.” Thus, the court concluded, “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.” The court, of course, concluded Koons did have such a genuine creative rationale.

Obviously, too, the court had to conclude that Niagara had no impact on the market for the original copyrighted photo Koons had appropriated. Reaching that conclusion in Blanch v. Koons was easy; Koons' painting was directed at a market for fine art that bore little economic relationship to the market at which the original photograph was aimed -- commercial advertising. Nevertheless, it is important to remember that in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court did not actually find that 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" constituted fair use. Rather, Justice Souter required the trial court on remand to determine whether or not 2 Live Crew's song had an impact on the primary or derivative markets for Roy Orbison's song:
In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i.e., "parody pure and simple," supra, at 22). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectable markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew's song comprises not only parody but also rap music, and the derivative market for rap music is a proper focus of enquiry, see Harper & Row, 471 U.S., at 568 ; Nimmer 13.05[B]. Evidence of substantial harm to it would weigh against a finding of fair use, because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.

Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they nor Acuff-Rose introduced evidence or affidavits addressing the likely effect of 2 Live Crew's parodic rap song on the market for a non-parody, rap version of "Oh, Pretty Woman." And while Acuff-Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of "Oh, Pretty Woman" and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. The fact that 2 Live Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court essentially passed on this issue, observing that Acuff-Rose is free to record "whatever version of the original it desires," 754 F.Supp., at 1158; the Court of Appeals went the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged on remand.

(citations and footnotes omitted).

In this day and age, a day and age that literally is no more than 2 to 5 years old, the implications of the Second Circuit's decision in Blanch v. Koons are potentially profound and problematic. The technological ease of ease of creating pieces of "appropriation art" and instantly disseminating them worldwide means that we will have an infinite number of creations that beg the question: do they affect the primary or derivative markets of the copyrighted works they appropriate? Could the courts (or any other institution) possibly cope with the burden of making those decisions?


Anonymous said...

given how new technology is making this issue come to light, i am troubled by the american geophysical union case 60 F.3d 913. the case is germain because in 1994 the court was forced to deal with a new technology, that of photocopying, and how it enabled people to make copies of material for the first time with relative ease on a large scale and the issue was how this should effect interpretation of fair use defense. The defendants in the case had a great number of efficiency arguments to make based on what photocoying would allow them to do (mobility, speed, access to information). however the courts did not find these interests controlling and denied fair use to defendant's photocopying. I suppose i am troubled because given the fact that KLF would have to make some kind of efficiency argument that how the court interprets fair use regarging their art could have enourmous drag on ability of new artists to make use of the media available to them today to create new art by mashing images and sounds for instant release, why should i expect the court to approach the problem any differently than they did in american geothermal. I am not sure that artistic efficiency should legally be treated much differntly than research and scientiffic efficiency. both are speciffically enumerated in the constitutional provision.

Anonymous said...

But in American Geophysical the use was not in any way transformative -- it merely displaced the primary market for the copyrighted works. The photocopying was of articles that were distributed to people who otherwise would have had to buy them. In that sense, it's no different than if the defendant in that case bought a computer program that was licensed for use on one computer and went ahead and installed it on every computer in the company.

Incidentally, photocopying was not all that new in 1994. It was invented back in the 1930s and became common in business use in the 1960s.

Anonymous said...

responding to above, you are of course right that there really was no transformative use, in texaco's photocopying, but the reason i think the case may be important is in the scenario that maybe a judge isn't so sure how transformative KLF's work is. surely if they think it is transformative enough than there is no need to consider american geothermal, but if not then KLF's argument has to be bolstered by the efficiency argument that was fairly analogous to what texaco tried to argue. technically every copying could be argued to be unjust on the grounds that they are using for free what they should otherwise be forced to pay for as every time fair use allows a copying it could be argued that there is a displacement of the market for the original. strictly speaking then KLF is using something that they should otherwise have to pay for just as the courts found that texaco had to subscribe to more editions of the science journal. i think that while the defentants in american geothermal were probably not the most sympathetic, they had a good argument about using the technology to enable more efficient researching. it seems like if KLF wants to make an argument about not shakling appropriation art in this new world technology, American Geothermal is a neccessary hurdle. THe geothermal court dealt with the tension between more efficient scientific research and pocketbooks of publishing companies and came down squarly on the side of publishing companies.

Anonymous said...

Then it really does come down to how transformative the use is and how it affects the primary and derivative markets of the copyrighted work, just as Leval says. If the KLF version were simply a cover of Que Sera, Sera sung by the Red Army Choir, it might still have some expressive resonance (a symbol of the cold war after the fall of the soviet union singing such a naive and fatalistic song), but it would just be a cover and plainly therefore would be an infringement.