Artistic intent, art interpretation, and the transformative nature of appropriation art

Are we really going to require an inquiry into an appropriation artist's purposes in determining whether the appropriation is "transformative"? As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist's own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists' work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh's in painting The Irises? Haven't we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the Second Circuit, in holding that Jeff Koons' appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons' use of the photograph was "transformative" precisely on Koons' statements regarding what he intended:

Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply different objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly different from the [*253] original purpose for which they were created"); see also 17 U.S.C. § 107(1) (first fair-use factor is the "purpose and character of the use" (emphasis added)).

Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media.Castle Rock Entm't, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as "raw material," Castle Rock Entm't, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters "as historical artifacts" in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when "the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting" on the original). His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

The test for whether "Niagara's" use of "Silk Sandals" is "transformative," then, is whether it "merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons's adaptation of "Silk Sandals": the use of a fashion photograph created for publication in a glossy American "lifestyles" magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects' details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

Court denies injunction against use of Imagine in film advocating for intelligent design

Last week the United States District Court for the Southern District of New York denied the request for a preliminary injunction by Yoko Ono against further showing and distribution of the movie Expelled, which, as I wrote last month, criticizes evolution, promotes the teaching of intelligent design, and in the process uses 15 seconds of John Lennon's song "Imagine."
In a twenty-three page memorandum opinion and order issued today, the Court held that the producers and distributors of Expelled are likely to prevail on their fair use defense and denied Plaintiffs' motion for a preliminary injunction in its entirety. As I wrote, If the filmmakers had tried merely "to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users' message objectionable." The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine lyrics, Ex. D to Weber Decl.) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.” (Sullivan Decl. ¶ 21.) The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.” (Id. ¶ 20.)

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings. 467 F.3d at 247. . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it. (Sullivan Decl. ¶ 16.) Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to
to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images—principally concert photos—in a coffee-table book about the musical group the Grateful Dead. 448 F.3d at 607. Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of "Imagine" by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and "Imagine" in particular, are being misrepresented. Lennon's song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that's not a view many can find tolerable, even in the U.S. of 2008, and they'll resort to misrepresentation to support their intolerance. Today, the Wall Street Journal ran a story with the headline The Case Against John Lennon. The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is "Nothing to kill or die for" and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

"Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against 'Imagine,' Lennon's anthem to a world with 'no countries . . . nothing to kill or die for/And no religion too.' For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that's a vision that smacks too much of the professed beliefs of the ex-Beatle's near namesake, Vladimir Ilyich.'

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here's Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, where I now teach, speaking on intellligent design, evolution, and religion:

Blanch v. Koons: fair use of copyrighted material in an artistic, “collage” setting

From Fair Use News:

On October 25^th, 2006, in Blanch v. Koons (pdf)[, 467 F.3d 244 (2d Cir. 2006),] the U.S. Court of Appeals of the Second Circuit ruled on an important case dealing with the fair use of copyrighted material in an artistic, “collage” setting, affirming that artist Jeff Koons’ incorporation of a photograph into a collage painting was fair use.

Jeff Koons, an “appropriation artist“, created a collage entitled “Niagara” which depicts four pairs of women’s legs with the feet pointing downwards superimposed over images of “confections … with a grassy field and Niagara Falls in the background.” In his collage, one of the sets of legs in the painting was originally part of a photograph taken by a professional fashion and portrait photographer, and published in Allure magazine in 2000. Koons described his work as using popular images for commentary on the “social and aesthetic consequences of mass media.” The work was commissioned by Deutsche Bank and the Guggenheim Museum.

In ruling that Koons’s use of the legs from Blanch’s copyrighted picture constituted fair use, the Second Circuit went through a detailed explanation of the four-factor fair use test: the purpose and character of use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effects on the actual or potential market for the work or its derivatives.

Most importantly within the “purpose and character” factor, the court analyzed the transformative nature of Koons’s work. Courts will not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” However, in this case, “Niagara” passes 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.”

The transformative nature of Koon’s work dwarfed other issues, such as the commercial nature of the work and any bad faith allegations against Koons. Indeed, the court even minimized the parodic justification. The court did address the confusing and oft-criticized distinction between parody and satire (“parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”) before stating that “[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 remaining factors used by courts in these cases—dealing with the nature of the copyrighted work, the amount and substantiality taken, and the effect on the market—all also weighed in Koons’ favor or were deemed unimportant in this case.

Further information on the subject matter of this case:

Law.com article the case.

Blog posting with snapshots of both pieces of art

Earlier Koons lawsuit (he lost this one) String of Puppies

The relationship between factor 3 and factors 1 and 4

Some have suggested that even if KLF’s version of K Cera Cera (1) is a genuinely creative and original work (i.e., a “transformative work”) and (2) has no effect on the primary or derivative markets for Que Sera, Sera, the fact that it appropriates virtually all of Que Sera, Sera militates against a finding of fair use. This argument, grounded in the third first use factor – “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” – is, in essence, as follows:

K Cera Cera could have evoked the meaning it draws from Que Sera, Sera (a distinctly American naïve and fatalistic optimism expressed both in the song’s lyrics and in its identification with Doris Day’s public persona) by simply appropriating one chorus, not the entire work. Since K Cera Cera instead used virtually the entirety of Que Sera, Sera, it fails the third fair use factor and therefore cannot be fair use regardless of its originality and market impact

There quite plainly are statements by courts that the third fair use factor suggests that appropriation of copyrighted works must be limited to the amount necessary to accomplish the purpose of the appropriating work. Thus, for example, in Bill Graham Archives LLC v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324, 330 (S.D.N.Y. 2005), the court stated that “[t]his ‘inquiry must focus upon whether “the extent of . . . copying” is consistent with or more than necessary to further 'the purpose and character of the use.’ Castle Rock Enter. v. Carol Publishing Group, 150 F.3d 132, 144 (2d Cir. 1998), citing Campbell, 510 U.S. at 586-87, 114 S. Ct. 1164, 127 L. Ed.2d 500.”

I would suggest, however, that, once if it is conceded that K Cera Cera appropriates the heart of Que Sera, Sera, whether it quotes one verse, half the song, or the entire song is irrelevant as long as K Cera Cera is (1) genuinely transformative and (2) has no impact on Que Sera, Sera’s primary and derivative markets.

If in fact K Cera Cera is genuinely transformative and has no impact on Que Sera, Sera’s markets, it makes no difference to Que Sera, Sera’s copyright holders whether one verse or the entire song is appropriated. If it makes no difference, why should the amount matter?

I think too my view is confirmed by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994)(emphasis added), in which the Court stated:

The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” § 107(3) (or, in Justice Story's words, “the quantity and value of the materials used,” Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. Here, attention turns to the persuasiveness of a parodist's justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character *587 of the use. See Sony, supra, 464 U.S., at 449-450, 104 S.Ct., at 792-793 (reproduction of entire work “does not have its ordinary effect of militating against a finding of fair use” as to home videotaping of television programs); Harper & Row, supra, 471 U.S., at 564, 105 S.Ct., at 2232 (“[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir). The facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives. See Leval 1123.

Finally, I know of no case holding that a work constituted an infringement based on the appropriation of too great a portion of the copyrighted material in which that appropriation did not have an impact on the markets for the copyrighted work. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), and Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987), are two examples of such cases. In both, the infringing use plainly hurt the copyrighted work’s primary market. In Harper & Row, The Nation published the chapter of President Ford’s autobiography that discussed his pardon of Richard Nixon. Since the public had by far more interest in that aspect of Ford’s life than any other, the publication hurt the sales of the autobiography. Why buy the book when the magazine gives you everything you’re interested in at a much lower price? In Salinger, a biography quoted long portions of J.D. Salinger’s letters. The infringement was not merely a result of the fact the excerpts from the letters far exceeded what was necessary to supporting the book’s biographical points. It was because there was an audience of Salinger fans so hungry for any new writing by Salinger (who had not published a word since 1965) that they would buy the book simply to read new Salinger. The biography, in short, was exploiting Salinger’s primary market for his own copyrighted works.

Judge Pierre Leval on what constitutes a transformative use

From the Patry Copyright Blog:

In 1990, Judge Pierre Leval wrote his path breaking article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), in which he proposed the term "transformative use,":"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."

Nothing substitutes for Leval's article, of course, but Fairly Useful summarizes it well and opines that the article "should be seen as the doctrinal foundation fair use jurisprudence since in the" post-Campbell v. Acuff Rose era.

The non-transformative commercial use of the entirety of a creative work is an infringement even without proof of damage

In referring to non-transformative appropriations of entire creative works for commercial purposes, Judge Leval has made clear that the failure to show damage will not make the appropriation into a fair use:

Quotation of the original may substantially augment its value and yet be a clear infringement. This would occur, for example, if a famous disc jockey, without authorization, regularly used an obscure song as the theme melody of her program. The value of the copyright for the song would be greatly enhanced. But such use would unquestionably be an infringement. No serious argument can be made that fair use should be found because the value of the copyright was increased, rather than harmed.

Pierre Leval, Fair Use Rescued, 44 U.C.L.A. L. Rev. 1449, 1459 (1997)(Westlaw)

Redlasso's clipping service is shut down

Hulu partners NBC and Fox have sued Redlasso, alleging that Redlasso's service that provided clips of copyrighted network programs to blogs violates the plaintiffs' copyrights in those programs. As a result, Redlasso "announced today that it has no alternative but to suspend blogger access to its video search and clipping Beta site for the immediate future." Redlasso argues that its search and clipping service is not infringing because it makes possible commenting and criticism by bloggers, uses that are fair uses. As Redlasso's press release puts it (pdf):, "The now-suspended Beta site provides bloggers with online broadcast content tools that enables them to exercise their first amendment rights to comment on newsworthy events, by searching blogger-selected TV and radio segments and creating limited duration clips for usage in blog posts."

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, argues that Redlasso's position that "it's enabling third-party users to engage in fair use" is not likely to prevail because "[f]air use doesn't provide coverage for the intermediary." Goldman bases his reasoning on UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 349 (S.D.N.Y. (2000), in which the court ruled that MP3.com was not engaged in fair use in providing online access to recordings its users already owned CDs of. The court reasoned that "although defendant recites that My.MP3.com provides a transformative 'space shift' by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium -- an insufficient basis for any legitimate claim of transformation."

The services provided by MP3.com, however, were not entirely analogous to those provided by Redlasso. MP3.com's users were merely using the online recordings for precisely the same purpose as the CDs they already owned: entertainment. Redlasso, on the other hand, provides clips of copyrighted shows for bloggers who, as mentioned above, comment on and criticize those clips. As an intermediary for these legitimate, non-infringing uses, Redlasso may be more like the defendant, an internet search engine, in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2001). Arriba, the defendant, provided online thumbnails of the plaintiff's photographs that were linked to web pages containing those images (much like Google's image search does). The court held that Arriba's use was non-infringing and distinguished MP3.com:

Although Arriba made exact replications of Kelly's images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly's original images. Kelly's images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba's use of Kelly's images in the thumbnails is unrelated to any aesthetic purpose. Arriba's search engine functions as a tool to help index and improve access to images on the internet and their related web sites. . . .

Kelly [the plaintiff-photographer] asserts that because Arriba reproduced his exact images and added nothing to them, Arriba's use cannot be transformative. Courts have been reluctant to find fair use when an original work is merely retransmitted in a different medium. [citing MP3.com and Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998)]. Those cases are inapposite, however, because the resulting use of the copyrighted work in those cases was the same as the original use. For instance, reproducing music CDs in computer MP3 format does not change the fact that both formats are used for entertainment purposes. Likewise, reproducing news footage into a different format does not change the ultimate purpose of informing the public about current affairs.

Arriba Soft, 336 F.3d at 819-820. As with Arriba, Redlasso's clips of network broadcasts are intended for a different purpose than the original broadcast. The blogs that use the clips are not doing so merely to re-broadcast the clips but, rather, to comment on them, a use that is at the core of fair use. Redlasso too is not clipping the entirety of the original programs but, instead, selected segments of them.

Then again, these segments can be used illegitimately for the same purpose as the original clips; without comment or criticism, mere posting of the clips would serve the same purpose to a viewer as wouldt viewing that segment on TV. In that sense, Redlasso is not like Arriba or Google Image Search, which only reproduce low-resolution thumbnails of copyrighted images.

All that is certain to me is that the matter is not as clear as indicated by the quotes from Professor Goldman.

Where is the line between derivative and transformative works

Could it be that the line between a derivative piece of appropriation art and a transformative one (i.e., the line between infringement and fair use) is defined by whether the allegedly infringing work is (1) creative and (2) does not exploit a market created by the original work?

In other words, a commercial work can appropriate the heart (or even the entirety) of a copyrighted work without infringing the copyright if it (1) is a genuinely creative work and (2) does not exploit a market created by the copyrighted work.

The Seinfeld trivia book challenged in Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998), failed on both counts: (1) it was a collection of "facts" derived from Seinfeld and simply rearranged (much like the telephone directory in Feist) and (2) it was directed at fans of the Seinfeld show, a market the show had created and had therefore had the exclusive right to exploit.

"Priceless" political expression

In Master Card Int'l Inc. v. Nader 2000 Campaign Committee, 2004 U.S. Dist. LEXIS 3644, *42, 70 U.S.P.Q.2D (BNA) 1046, Copy. L. Rep. (CCH) P28,781 (S.D.N.Y. 2004), the court granted the motion for summary judgment filed by the defendant, Ralph Nader's 2000 Presidential Campaign Committee, and dismissed plaintiff Mastercard's lawsuit, which alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard's "priceless moments" television ads infringed on Mastercard's copyright in those ads. The court concluded:

The Nader Ad does add something new and qualifies as a "transformative" work. Whether it "comments" on the original is the issue in question. MasterCard's message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be "purchased" or are "priceless." Hence, "there are some things that money can't buy." This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card--"for everything else, there's MasterCard." Ralph Nader's Political Ad attempts to show various ways [*43] different Presidential candidates can be bought in the "big-money arena of Presidential politics" (Def's Mem. in Supp. Summ. J. 27) and contrasts the "priceless" truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, "which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks." Id. This commentary "may reasonably be perceived." The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader's Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative. (footnote omitted)

William Patry on political expression using copyrighted works.

Parody, Satire, Transformative Use, and Derivative Works

Available here is a discussion regarding the distinctions courts have attempted to draw between parody and satire in fair use cases. The discussion is excerpted from Andrew S. Long, Mashed up Videos and Broken Down Copyright: Changing Copyright to Promote the First Amendment Values of Transformative Video, 60 Okla. L. Rev. 317, 335-559 (Summer 2007).

According to the March 7, 2008 edition of the Courts Consumer Electronics Daily, Judge Pierre Leval, speaking on the Wednesday just two weeks ago at the State Bar of California's annual Copyright Office Comes to California event in San Francisco, explained that the lower courts had been making a mess out of the fair use doctrine

until Justice David Souter's "magnificent opinion in Campbell v. Acuff Rose" in 1994, Leval said. The ruling followed Leval's analysis in explaining that the key questions in fair use are whether a work accused of infringing has a "different objective" from the plaintiff's, and so is "transformative," and whether it competes with the original work, the judge said. The fair-use debate is polarized between "extremist points of view," including a copyright-enforcement "protectionist" position that criticizes Campbell and the 9th Circuit decision in Perfect 10 v. Google as protecting "perfect copies as fair use," Leval said. Perfect 10, which allowed Google to present searchers with thumbnail versions of Perfect 10 photos of naked women, has been called "a triumph of the mind sound bite over reasoned analysis," but "to the contrary," it's "a truly thoughtful and reasoned opinion," he said. Of course an exact a copy can be a fair use, Leval said: Otherwise, a museum wouldn't be free to use small copies of famous paintings like the Mona Lisa on wall signs and floor maps to send visitors to the originals. Newspapers have to be able to publish images of stolen paintings, and publishers must be able to decide whether they lawfully can distribute investigative articles by looking at them, without determining whether a writer used the deceit sometimes needed to get copyrighted documents to write them, he said. "The free expression camp" at the other end of the spectrum also is off-base in contending that copy-making should be protected unconditionally as freedom of speech, Leval said. Getting rid of copyright would "fatally damage" creation, he said. Even "moderates" make "exaggerated" complaints that the standards for fair use are too loose to make outcomes predictable enough, Leval said. A shifting terrain is bound to create some uncertainty, but "bright line" rules might not be worth the bad results they would produce, he said. (hyper links added)

Patry on Appropriation Art

Patry on Copyright
Database updated March 2008
William F. Patry
Chapter 10. The Fair Use Defense

Appropriation art poses very difficult problems for fair use, including whether it constitutes a comment, criticism, or parody.[FN1] The answer to that question is complicated in the case of appropriation art by its very essence, a conceptual statement, rather than a classic transformative use. Both artists and judges have very different about how appropriation fits into fair use: is it a well-recognized form of artistic expression, or is it piracy? In Rogers v. Koon,[FN2] as Judge Posner and Professor Landes have observed: "From the perspective of copyright law the very term "Appropriation Art" is a provocation; "appropriation" of a copyrighted works connotes stealing."[FN3] If art is in the eye of the beholder, such fair use appropriation art is even more so.

[FN1] See William Landes, Borrowed Images, and Appropriation Art: an Economic Approach, 9 Geo. Mason L. Rev. 1 (2000).

[FN2] Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).

[FN3] Landes and Posner, The Economic Structure of Intellectual Property Law, 261 (2003). See also Landes and Posner, The Economic Structure of Intellectual Property Law at 262-229. It should be noted that this is not Landes and Posner's own view; they believe the Koons case was incorrectly decided.

Copyrighted recordings are subject to fair use too, but too few act that way

Finally, perhaps, the RIAA and ASCAP's reign of overclaiming copyright by asserting the fee simple ownership of every last component of every last copyrighted recording and song is coming to an end.

I've never understood why recording artists tolerate a regime in which they pay to use the sample of another recording, no matter how brief. Art thrives on recognizable quotation. It would be pointless for art to quote something unrecognizable. Recognizable notes carry meaning and connotations that are the very product of their recognizability, and art depends on evoking large meanings from small pieces. Nor can anyone argue that the brief sample of one recording in another deprives the original of sales; if anything, bringing the old song back into consciousness through the effective "quotation" of one of its recognizable parts could only conceivably help sales of the original.

Then again, perhaps I do understand the toleration of the licensing system that exists for the use of prerecorded samples. They bow to the RIAA, which (mis) states that "generally speaking, the use of any part of a song requires a license." (emphasis added) Thoughtless court decisions have endorsed the RIAA's position. As previously noted on this blog, paying for every last sampled note from a copyrighted song became industry practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie's third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn't satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney's office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,"Thou shalt not steal." [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed."

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), compounded this folly, holding that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats. Again, the court failed entirely to consider the First Amendment rights that must be balanced against maintaining the composer's incentive to create, the very core of the fair use doctrine.

The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice is to pay for any and all recorded samples. Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece? Artists who would challenge the existing regime hardly have the financial wherewithal to challenge the industry and the enormously successful artists who benefit from it. Thus, as Jonathan Lethem has written, "[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. "

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court).

Maybe, however, times are beginning to change:

Just when it seems like mashups are played out — or playing dead, thanks to litigious record labels — along comes Girl Talk (nee Gregg Gillis). For last year's album Night Ripper, the laptop mixologist used more than 250 samples from 167 artists. Raps by Ludacris rub up against a Boston riff, the Ying Yang Twins whisper over the Verve's "Bittersweet Symphony." As the album became an indie sensation, Gillis resigned himself to the inevitable cease-and-desist order. But it never materialized. "Labels are starting to realize that something like Night Ripper isn't going to hurt their artists," Gillis says. "If anything, it will promote them."

Yes, it's smart business. But business should not define the rights of artists and writers to use the resonant pieces of our culture to express their own points of view. It is absurd to repeat the oft-repeated canard that "[i]t is well established that using just a few seconds or bars of a musical composition violates the copyright in a work if the piece taken was the "hook'' or 'essence' of the original song." If the sample does not in fact evoke the original, there's no point in using the sample. It's the sample's very recognizability and its cultural resonances that make it a usefully compressed sign in the appropriating work.

If we depend on business to determine when sampling is permissible and when it is not, we'll never have samples in works the original artists don't like. If you support the teaching of intelligent design and you leave it to business to define your rights to sample music, you'll never, ever be able to use a John Lennon piece, no matter how seminal you believe it is in expressing the views you abhor. If you are Biz Markie creating a new work that rejects the sentiment and sappiness of Gilbert O'Sullivan's ouevre, you'll never be able to sample a Gilbert O'Sullivan work.

I wish I could tell Judge Kevin Duffy that "Thou shalt not steal" does not exhaust Old Testament wisdom.

The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. -- Ecclesiastes 1: 9 (KJV)

A little change can make a great transformation

Henry McKervey and Declan Long, in "Makers and Takers: Art and the Appropriation of Ideas:

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon's 24 Hour Psycho, for instance, there is in one sense very little of the artist's 'own' work (Hitchcock's classic thriller being merely re-played at a radically slowed-down pace) yet Gordon's intervention makes for a powerful, transformative artistic statement. The question of "knowing originality when you see it" is almost beside the point in cases such as this: artists' strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

What is an author?

From Peter Jaszi, Case Western Reserve's own Martha Woodmansee, and their collaborators, an excerpt from Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge:

An "author" in the modern sense is the creator of unique literary, or artistic, "works" the originality of which warrants their protection under laws of intellectual property -- Anglo American "copyright" and European "authors' rights." This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.

This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique -- in a word, "original" -- work which, accordingly, may be said to be the property of its creator and to merit the law's protection as such.

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.

parody or derivative work?

Ty, Inc. v. Publications International, No. 01-3304 (7th Cir. 2002)(Posner, J.):

The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement. A book reviewer could not quote from the book he was reviewing without a license from the publisher. Quite apart from the impairment of freedom of expression that would result from giving a copyright holder control over public criticism of his work, to deem such quotation an infringement would greatly reduce the credibility of book reviews, to the detriment of copyright owners as a group, though not to the owners of copyright on the worst books. Book reviews would no longer serve the reading public as a useful guide to which books to buy. Book reviews that quote from ("copy") the books being reviewed increase the demand for copyrighted works; to deem such copying infringement would therefore be perverse, and so the fair-use doctrine permits such copying. Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1351 (7th Cir. 1995) (dictum); William M. Landes, "Copyright, Borrowed Images, and Appropriation Art: An Economic Approach," 9 Geo. Mason L. Rev. 1, 10 (2000); Lawrence Lessig, "The Law of the Horse: What Cyberlaw Might Teach," 113 Harv. L. Rev. 501, 528 (1999). On the other hand, were a book reviewer to quote the entire book in his review, or so much of the book as to make the review a substitute for the book itself, he would be cutting into the publisher's market, and the defense of fair use would fail. Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 215 (2d Cir. 1983) (dissenting opinion), rev'd, 471 U.S. 539 (1985); see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000); Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983).

Generalizing from this example in economic terminology that has become orthodox in fair-use case law, we may say that copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, see 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright sec. 13.05[B][1], p. 13-193 (2002), is not fair use. On Davis v. The Gap, Inc., 246 F.3d 152, 175-76 (2d Cir. 2001); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concurring opinion); Wendy J. Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors," 82 Colum. L. Rev. 1600, 1643 n. 237 (1982); see Consumers Union of United States, Inc. v. General Signal Corp., supra, 724 F.2d at 1051. If the price of nails fell, the demand for hammers would rise but the demand for pegs would fall. The hammer manufacturer wants there to be an abundant supply of cheap nails, and likewise publishers want their books reviewed and wouldn't want reviews inhibited and degraded by a rule requiring the reviewer to obtain a copyright license from the publisher if he wanted to quote from the book. So, in the absence of a fair-use doctrine, most publishers would disclaim control over the contents of reviews. The doctrine makes such disclaimers unnecessary. It thus economizes on transaction costs.

The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly--said to be between "transformative" and "superseding" copies, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)) is illustrated not only by the difference between quotations from a book in a book review and the book itself, Marion B. Stewart, "Calculating Economic Damages in Intellectual Property Disputes: The Role of Market Definition," 77 J. Patent & Trademark Office Society 321, 332 (1995), but also by the difference between parody (fair use) and burlesque (often not fair use). A parody, which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 579, 580-81 and n. 14, 588; Suntrust Bank v. Houghton Mifflin Co., supra, 268 F.3d at 1271; Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998); Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997); 4 Nimmer & Nimmer, supra, sec. 13.05[C], pp. 13-203 to 13-218. A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original's market, are not fair use. Benny v. Loew's Inc., 239 F.2d 532, 536-37 (9th Cir. 1956), aff'd by an equally divided Court under the name Columbia Broadcasting System, Inc. v. Loew's, Inc., 356 U.S. 43 (1958) (per curiam); see 4 Nimmer & Nimmer, supra, sec. 13.05[B][1], pp. 13-194 to 13-195, sec. 13.05[C]; cf. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 580-81 & n. 14, 591. The distinction is implicit in the proposition, affirmed in all the cases we have cited, that the parodist must not take more from the original than is necessary to conjure it up and thus make clear to the audience that his work is indeed a parody. If he takes much more, he may begin to attract the audience away from the work parodied, not by convincing them that the work is no good (for that is not a substitution effect) but by providing a substitute for it.

Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:

Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama Said Knock You Out," two samples that Girl Talk did not obtain LL's permission to use, which means that they appear in the song illegally, which means that LL is not getting paid for their usage, which would probably make LL very upset if he had any idea that this was happening. (emphasis added.)

Then Montgomery writes that Girl Talk's Greg Willis uses "the concept of 'fair use' to shield himself from any pesky copyright suits."

I can't believe someone from MTV.com is writing on these issues from such a state of ignorance. It's far from certain that what Girl Talk is doing is "illegal," and "fair use" is no "technicality" to shield one from copyright infringement lawsuits. It's one's constitutional right.

And, incidentally, D.J. Danger Mouse has not, as Montgomery implies, "left the [musical collage] genre behind.

Addendum: First, according to Will in the comments, Mr. Montgomery should have known better than to think LL Cool J would've been upset by Girl Talk's appropriation because "LL recently recorded a 'mixtape' called 'Return of the G.O.A.T.' featuring a number of freestyles over uncleared sampled beats."

Second, and more important in trying to determine whether Girl Talk's appropriations constitute fair use, Mr. Montgomery's own evaluation of Girl Talk's music basically makes the case that the use is "transformative" and therefore does constitute fair use. He writes: "[Girl Talk's] new album is so great, the kind of thing that could not have existed 10 years ago, an audio time capsule of the era in which we live. The kind of thing that can inspire post-millennial dilemmas at 37,000 feet."

Then again, inasmuch as Mr. Montgomery is a shill for MTV, and MTV is part of a corporate conglomerate with every interest in hiding the realities of fair use from the public, it should be no surprise that he writes with such ignorance about fair use. Here are some posts to try to begin to bring him up to speed.

How to profit without risking infringement: appropriate creations unprotected by our intellectual property laws

More from the Manual, the KLF's how-to book on making a number one pop hit. Here they note that the first component part of the song is its "groove," and that "Black American records" are always a reliable source for effective ones. Oh, and they point out that the grooves on those records aren't even considered part of the copyrighted music:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define "groove". It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn't even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

The KLF aren't the only ones who have detected racial and cultural bias in Western intellectual property laws. As the Authorship Collective in the English Department right here at Case Western Reserve explains (footnotes omitted):

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.

The Authorship Collective goes on to cite examples of "biopiracy," the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants' effective ingredients and profit from the sale of the "new" drug. For example:

The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as "Bushmen", although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia's properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by "mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we're full…thus curbing the appetite." (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.stm) Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia "P57". Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

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?