The judicial trend is undeniable, as the scope of the fair use doctrine has been expanded to a point where the exception has almost devoured the rule. Last year in Cariou v. Prince, the Second Circuit found that Richard Prince had “transformed” 25 out of 30 original Cariou images into something new, and Prince’s work was therefore protected by the fair use exception to copyright infringement. Problem is, the Cariou court didn’t quantify the amount of “transformation” required to obtain fair use protection. Consequently, Cariou’s, and any other photographer’s, right to exploit both his original work and derivative works based upon the original is seriously eroded. The Second Circuit couldn’t determine whether Prince had “transformed” the remaining 5 original Cariou works and remanded the case to the trial court for determination in light of the Circuit’s reasoning as to the other 25 works.
Now, photographers are collectively trying to put the brakes on this train. A number of prominent photo arts groups have joined the Cariou case on behalf of the original artist through an amicus brief regarding the 5 remaining artworks. In a nutshell, the amici assert that, “a fair use defense based on the mere appropriation of copyrighted material, without more, not only harms the market for original works, but also damages the artist’s market for sales of derivative works for items such as postcards, posters, and other public consumables.” In another recent law suit, photographer Lois Greenfield, sued painter Jill Pankey, alleging that Pankey appropriated 33 of Greenfield’s photographic images to create paintings (which Pankey freely admits). Pankey hasn’t yet answered the complaint, but you can bet she’ll assert that her work is subject to the fair use exception. Although clearly derivative of the original Greenfield photos, it appears that Pankey will have a pretty strong fair use “transformation” argument – after all, she has recreated as painted images the original Greenfield photo images, and they differ in several material visual respects.
Of course, in creating the fair use exception, Congress sought to balance the rights of the original creator against the public interest in promoting the free exchange of ideas. But surely Congress did not intend, as Mickey H. Osterreicher, general counsel for the National Press Photographers, says, that “copyright [be] the exception to fair use.” While lobbying Congress to close or more closely define the fair use exception seems the logical course, Congress historically has moved at a glacial pace in matters of copyright.
So, the courts have apparently created a “fair theft” exception to copyright infringement, as the Cariou amici call it. But let’s be mindful of Picasso’s words of wisdom: “Good artists borrow; great artists steal.”