United States: Art Appropriation Redux

Last Updated: January 6 2016
Article by Joshua J. Kaufman and Thai Nguyen (Summer Associate)

Art appropriation is back in the news.

Jeff Koons the appropriation artist, the auction house and the consigner of the work are being sued by photographer Mitchel Gray for the use of his photograph in an artwork without permission. This is Mr. Koons' sixth lawsuit for claims of copyright infringement based on the misappropriation of previously existing works. Mr. Koons is 1 for 5 in the previous cases. In this case, Mr. Gray took a photograph of a couple on the beach for a Gordon's Gin ad in 1986.

Later that year, as part of his series Luxury and Degradation, Mr. Koons reproduced the photograph in its entirety and most of the ad with some slight variations (the "Koons Artwork").

The Koons Artwork, and case, raises three issues that anyone who creates or sells art which incorporates third party intellectual property must deal with, specifically copyright claims, Right of Publicity claims and trademark claims. While the Gray lawsuit is limited to copyright claims other questions that are not raised are present in Koons Artwork --- did Koons also violate Gordon's trademark rights and the Right of Publicity of the two models in the photograph? The suit provides us with an opportunity to review the current state of the law in regard to the appropriation of other's copyrightable artwork, trademarks, and likenesses in a new work.

In the last few years, a review of copyright cases shows that the pendulum has swung in favor of Fair Use, particularly in New York and California. There are two cases, in the Court of Appeals in New York - one dealing with art and one not (the Google Books case), which have taken an expansive view towards fair use. The most exciting or troubling (depending on your point of view) art law case is Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). In Cariou v. Prince, artist Richard Prince was sued for appropriating dozens of photographers by Patrick Cariou. Cariou had published black-and-white portraits and landscapes that he took while living in Jamaica. Prince tore photos from Cariou's book and incorporated them into his own artwork, altering them in varying degrees and pinning them to plywood. Prince's work was subsequently featured at a gallery, and Cariou sued. To find fair use, the Second Circuit requires the new work to be transformative that is it "must alter the original with new expression, meaning, or message." The court found Prince's work was significantly different in size, color, and distorted nature, that his works were "fundamentally different and new." The Court also found that the law imposes no requirement that a work comment on the original, or its author, in order to be considered transformative; and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. The court further held that the more transformative a new work is, the less important the other four fair use factors become. The court broke new ground in finding fair use when it stated,

[whose decision of no fair use it over turned] based its conclusion that Prince's work is not transformative in large part on Prince's deposition testimony that he "do[es]n't really have a message," that he was not "trying to create anything with a new meaning or a new message," and that he "do[es]n't have any ... interest in [Cariou's] original intent. On appeal, Cariou argues that we must hold Prince to his testimony and that we are not to consider how Prince's works may reasonably be perceived unless Prince claims that they were satire or parody. No such rule exists, and we do not analyze satire or parody differently from any other transformative use.

It is not surprising that, when transformative use is at issue, the alleged infringer would go to great lengths to explain and defend his use as transformative. Prince did not do so here. However, the fact that Prince did not provide those sorts of explanations in his deposition which might have lent strong support to his defense is not dispositive. What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so. Rather than confining our inquiry to Prince's explanations of his artworks, we instead examine how the artworks may "reasonably be perceived" in order to assess their analysis is primarily on the Prince artworks themselves, and we see twenty-five of them as transformative as a

In essence the court held that even if the artist does not claim the work is transformative if the judges think the public will that is enough. The Second Circuit's analysis, as a result, greatly broadens judges' discretion of what is transformative and thus what is a fair use.

In California there is an instructive case of an artist, Derek Seltzer (Seltzer v. Green Day, Inc., 725 F.31 1170 (9th Cir, 2013)). The Ninth Circuit, found that Green Day's use of the artist's drawing in its video backdrop was protected by fair use. In Green Day, artist Derek Seltzer created an art work entitled Scream Icon and arranged posters of it on walls across Los Angeles as street art. Green Day's set designer happened to come across the artwork, photographed it, and later used it in the band's video backdrop. The Scream Icon was modified for the video, and other artists were featured further altering it, as the video played. Seltzer sued for copyright infringement.

In ruling for Green Day, the court emphasized that the band's use was sufficiently transformative because different colors, contrast, a brick background, and a superimposed red crucifix were added to the artwork. Moreover, the video's message of religious hypocrisy had nothing to do with the Scream Icon's original meaning. Even though the Scream Icon was concurrently used with the band's concerts, this was only "incidentally commercial," because it was not used to promote the concerts or merchandise. Because Green Day's use conveyed "new information, new aesthetics, new insights, and understandings," it was transformative and fair.

In Wisconsin there is another case, Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), where the court took a different approach to fair use then did the Cariou and Green Day courts. In Kienitz, the Seventh Circuit openly criticized the Second Circuit's interpretation of the Fair Use Doctrine in Cariou. Here, Michael Kienitz photographed Madison, Wisconsin mayor Paul Soglin, and subsequently posted that photograph on the city's website. Apparel company Sonnie Nation, LLC ("Sonnie Nation") downloaded the Mayor's photograph from the website, altered its color and details, and printed the new image onto t-shirts with the phrase "Sorry for Partying."

Relying in part on Cariou, the district court ruled in favor of Sonnie Nation based on the t-shirt's transformative nature. The Seventh Circuit affirmed, but on different grounds. It warned that the Second Circuit's interpretation of fair use compromises, and possibly eliminates, a copyright holder's statutory right to prevent others from making derivative works. Instead, the Seventh Circuit opted to "stick with the statutory list, of which the most important usually is the fourth [factor] (market effect)" to find fair use. The court did find fair use but looked at all four factor in the statue to arrive at its conclusion. The take away is if one is going to appropriate someone's artwork New York and California are the places to be sued in.

In terms of the use of an individuals' likenesses, we deal with the Right of Publicity, which unlike copyright, is at least supposed to be uniform across the country. The Right of Publicity is governed under individual state statutes or common law. Generally speaking, the courts have favored artists in this area, although not universally. It is important to note that courts have often found distinctions between the use of a celebrity's likeness in fine art when used on an original, limited edition or print versus licensing the same artwork found on commercial products. Certain courts do not find a distinction, once they find the use to be a fair use under the Right of Publicity for the underlying art it doesn't matter on what product it is put on. Others courts have taken a more "First Amendment" expressive speech approach and have carved out exceptions to the Right of Publicity but only for fine arts not for licensed goods. Below is a review of four of the leading cases in the area.

In Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (Cal. 2001) the Supreme Court of California ruled against artist Gary Saderup for producing lithographs and T-shirts bearing the likeness of The Three Stooges.

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