Moving the lines between copyright and fair use

Last month Richard Prince made history when the court ruling against him for copyright infringement against him was overturned.In 2008 Prince created a series of paintings, "Canal Zone," which incorporated the photographs of Patrick Cariou from his book Yes, Rasta. The work was shown at Gagosian Gallery in New York. In 2009 Cariou filed a copyright infringement case against Prince, Gagosian Gallery, Lawrence Gagosian, and  Rizzoli Publications. In March 2011, Judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalog and unsold paintings from the series that use Cariou's photographs. Any collectors who own sold artwork were to be informed it would be illegal for them to publicly display the paintings.One of the key factors in determining fair use is whether or not the work is transformative. During the case Prince testified the the work “didn't really have a message.” Courtroom reports stated that the judge responded by assessing that for fair use to apply, a new work of art must be transformative—that it must “in some way comment on, relate to the historical context of, or critically refer back to the original work.”(1)After the 2009 court ruling Cariou stated, “This lawsuit is about arrogance, laziness and an overwhelming sense of power. It has nothing to do with art,” Cariou told Art in America, “At the end of the day, he took 41 pictures—it's not just one little part. It's almost half of the book. I really don't understand how he thought he could get away with it.”(2)Gagosian and Prince appealed the decision and the courts ruled last month that Batts’s interpretation was incorrect and that “the law does not require that a secondary use comment on the original artist or work, or popular culture,” but only that a reasonable observer find the work to be transformative.(3) In its decision the court wrote that Prince’s work conveyed an entirely different aesthetic and while Cariou’s photos depicted the natural beauty of Rastafarians and their environment, Prince’s work is jarring and provocative.This case is seen as a landmark. If the original ruling were not overturned, it could mean any artist who has copied, altered, or collaged other artists work could be found in violation of copyright. It could have affected artists like Andy Warhol and his images of Campbell Soup cans and Marilyn Monroe. Current and future implications for contemporary art and culture abound. As memes based off of copyright protected images, characters, or snippets from TV shower the internet, questions arise about the legal liabilities that their posters incur.Where do you think the lines fall between copyright infringement and fair use? Should the original ruling remain or were the courts right in overturning the decision? Does contemporary culture call for a change in copyright law and fair use?Notes/Sources:(1) http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?_r=2&(2) http://www.artinamericamagazine.com/news-opinion/news/2011-03-22/richard-prince-canal-zone-cariou-gagosian-lawsuit/(3) http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?_r=2&http://artherworldblog.wordpress.com/2012/06/25/internet-memes-and-copyright/http://www.forbes.com/sites/emmawoollacott/2013/05/03/warner-brothers-sued-for-infringing-cat-meme-copyright/http://petapixel.com/2013/04/26/appeals-court-overturns-previous-ruling-rules-fair-use-in-richard-prince-case/

Was Shepard Fairey’s use fair?

Last week Shepard Fairey was sentenced to two years probation and a $25,000 fine for tampering with evidence in his copyright battle with the Associated Press. Some, including prosecutor Daniel Levy, felt Fairey should have served jail time. Levy contends, “A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct.”For those unfamiliar with the case, Fairey was sued by the Associated Press in 2009 for copyright infringement for using a photo by AP photographer Mannie Garcia. Fairey then filed a suit against the AP, contending that his use of the photo fell under the doctrine of fair use. The case got murky when it was discovered that Fairey lied about the original photo that he used as well as destroyed documents that were relevant to the case.Plagiarism Today lists the belief "Fair Use Will Protect Me" as one of the top myths about copyright. They go on to state that most people who claim fair use are misreading the law. Fair use is meant to balance free speech against the rights of the copyright holder. Fair use is an affirmative defense; you would have to prove it after you are sued. Fair use is not meant to protect you from a lawsuit, but rather from having to pay damages after it is over. (1)The definition of fair use is the copying of copyrighted material for a limited and transformative purpose; to comment upon, criticize, or parody. The term transformative is as ambiguous and vague as it seems, and it's done so intentionally. Like free speech, judges and lawmakers want an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories: commentary and criticism, or parody. (2)According to Stanford University Libraries, when assessing whether or not something falls under fair use, lawmakers use four factors:

1. the transformative factor: purpose and character of your use(have you created new meaning, was value added to the original?)

2. the nature of the copyrighted work(was the original work factual or fictional? typically you have more leeway if it's factual)

3. the amount and substantiality of the portion taken(in general, the less you take, the more likely you will be excused)

4. the effect of the use upon the potential market(does your new work deprive the copyright owner of income or a potential market for the original work?)

In Fairey's case the issue was eventually settled in a civil case without answering the question of whether or not his use of the AP photo constituted fair use under copyright law. The financial terms of their agreement were not disclosed and both parties agreed to share image usage rights for any posters or merchandise produced using the "Hope" image.Fairey may have been sentenced for his criminal activity involved with this case, however the question still remains, would his use of the AP photo have been fair if he hadn't lied and tampered with evidence?Notes:(1) http://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/(2) http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.htmlSources:http://www.latimes.com/entertainment/arts/culture/la-et-cm-shepard-fairey-20120908,0,6021274.storyhttp://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/http://www.huffingtonpost.com/2012/09/06/shepard-fairey-jail_n_1861680.htmlhttp://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

Is everything a remix?

Beginning graphic design students often wrestle with the idea of originality. They argue that "nothing is original, it's all been done before." They will resist doing research because they claim that they don't want to "steal" someone else's idea. The concept of research and re-purposing ideas are not always easy ones for them to wrap their heads around.Emulation (aka copying) is a vital part of learning and developing our creative skills according to New York-based filmmaker Kirby Ferguson. He says, "Nobody starts out original." History shows us that a long line of inventors, artists, designers like Thomas Edison and Apple Computer follow what Ferguson feels is the formula for creativity: copy, transform, combine. This video does a great job of putting it in perspective.Source: http://vimeo.com/25380454Where do you think the line falls between emulation and innovation?

What's the difference between appropriation and plagiarism?

In an article for Design Observer designer and author William Drenttel writes about how ideas come from many sources in graphic design: they recur, regenerate, take new forms, and mutate into alternative forms. In the world of design and photography, there seems to be an implicit understanding that any original work can and will evolve into the work of others, eventually working its way into our broader visual culture.Drenttel goes on to talk about how the charge of plagiarism is not a simple one. He says, “Designers should take note: the idea of borrowing ideas is getting more complex everyday. Inherent in the modern definition of originality, though, is that ideas are extended, language expanded, and syntax redefined. Take a psychologist’s ideas and experiences, as explained through the eyes of a journalist, and turn them into a play, a work of fiction—this is a work of complex, ‘appropriation,’ I believe the design world benefits greatly from such an understanding of complexity.”How does a designer know where the boundaries are when finding the line between appropriation and plagiarism?Source:http://www.designobserver.com/observatory/entry.html?entry=2837