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?