Let’s call it The Prince Rule
Actually Fair Use: News and criticism. Image from court documents.
Resampling music. Painting over a photograph. Fan fiction.
I may be in the minority who finds these pseudo-creative practices bereft of talent and blatant acts of copyright infringement.
But I stand my ground.
Consider the recent (ever-ongoing) Richard Prince lawsuits.
In 2014, when Prince displayed his series, New Portraits, at Gagosian, New York, several photographers raged and at least five sued: Prince had used their photos! Prince captured screenshots of others’ photos and reproduced them on canvas with his added commentary. The photographers cried copyright foul. The trial court allowed the case to proceed, noting that the “primary image in both works is the photograph itself. Prince has not materially altered the composition, presentation, scale, color palette and media originally used by [the photographer].”
That quote articulates elements of fair use: the legal rule that allows others to use a copyrighted work. For those who are unfamiliar with copyright, here’s a primer:
Once a work is in fixed form, it’s copyrighted (you write in your journal, it’s copyrighted). You can choose to register your copyright with the United States Copyright Office. Then you get your C in a circle. But note — you already have a copyright, you are just notifying the world you have one.
A creator has certain rights and benefits to his or her creations: They can copy it, alter it, sell it, license it, perform it, et cetera — hell, they can even destroy it! And only the creator can share or grant or release those rights. For example, if you are a photographer and designate your work “creative commons” (* see footnote), anyone can use it without crediting you. Anyone can manipulate it, alter it, sell it. The creator has all the control over his or her work.
Average citizens do not appreciate these rights. They hire a wedding photographer and delete her watermark — or alter her images by adding text or sparkles. If the wedding photographer has not explicitly allowed those acts, you can’t do it. Average citizens routinely steal images from the internet. That’s copyright infringement. Average citizens download and share music without license. That’s copyright infringement.
We do have exceptions through that legal doctrine of fair use. Generally, you can use a copyrighted work to educate, to comment (parody, satire), or to report (news, analysis) — if you are not taking the creator’s profits or market share.
As a professor, I may assign articles to my students and quote from those articles — but the purpose is purely educational, I credit the author and publication, and I don’t sell the article! I can write a criticism of the article and quote from the article — as long as the sale and profit from my article is not dependent upon the quoted work. Otherwise, I would need a license from the author and, typically, the publication.
The same standard applies to any creative work.
However, I have grossly oversimplified the legal concept. You can peruse fair use cases on the US Copyright database to appreciate the complexity in determining whether Billy used too much of a song or Betty unjustly profited from the image. Courts (judges, lawyers — not artists) use the fair use test to determine if a reasonable observer would find the new work permissible. To pass muster, the new work must be transformative (significantly different from the original), have a non-competitive nature (a photograph of a painting to analyze technique versus displaying and selling the painting), be an insignificant portion of the original (so as not to be a copy), and not interfere with the original artist’s market.
Consider 2 Live Crew’s parody of Roy Orbison’s Oh, Pretty Woman. Clearly parody. The 2 Live Crew song adds something to the conversation. Their version does not depend on the original for popularity or profit. It stands on its own.
Back to Richard Prince.
Prince argued his use of the photographs was fair use since his pictures were transformative and offered his critical analysis. His canvas images were screenshots of the original images with pithy commentary. In mid May, a federal judge rejected Prince’s fair use defense.
Prince has been on the defense before — and won with this argument. His use of Patrick Cariou’s photographs, altered without permission and without credit to Carious, under a claim of transformative commentary, and which Prince registered as his own copyright, was deemed fair use.
While I appreciate the legal questions Prince and his ilk force society to examine and answer, I argue from moral grounds: If you are creative, go create something. You say mimicry is a form of flattery. I say if it’s interfering with an artist’s market — or altering an artist’s work without permission — it’s wrong.
If Prince were an art critic writing analysis of Cariou’s or the other photographers’ work, and posted the photographs with commentary, I would support him. But this poser-artist is relying on others’ creativity to make money. He, like any five-year-old, points at creative works and makes comments. What does he bring to the table?
Reheating another’s gastronomy provides him a significant living (millions of dollars).
Let’s shift to another Prince. Last year, the USSC heard the case of photographer Lynn Goldsmith against Andy Warhol for his painting of her Prince (The Artist Formally Known As…symbol…pure genius) photograph. Goldsmith, a celebrated photographer of nearly every music celebrity (Mick Jagger, Patti Smith, Bruce Springsteen…), sued when what she believed to be a limited license to Vanity Fairbecame Warhol’s (direct copy) silkscreen painting sold and reproduced for hundreds of millions of dollars. (Her photograph and Warhol’s painting appear above.)
True creatives birth innovative art. New plots, new techniques, new perspectives. These others are copycats who ride the artists’ coattails while bereft of creative genius and originality. While I appreciate the essence of inspiration, I differentiate between being inspired and being a thief. The legal scholars, with their panties in a twist, worry limits to fair use would chill creativity: “For many artists, the artistic message they seek to convey lies precisely in a verbatim or near-verbatim replication of the original work.” (Brief on behalf of the Warhol Foundation).
I call nonsense.
So did Justice Elena Kagan who said during oral arguments:
“If you imagine Andy Warhol as a struggling young artist, who we didn’t know anything about, and then you look at these two images,” she said, “you might be tempted to say something like, well, ‘I don’t get it. All he did was take somebody else’s photograph and put some color into it.”
An artist — a talented one — would create something new to convey his or her message.
A satirist or reporter or teacher may require a verbatim reproduction to make his or her point. But he or she is not selling the article or comic or lecture for billions of dollars. They are also not manipulating the original without permission to seek profit. I think law scholars like Amy Adler, of NYU, entirely miss that crucial point. She stated:
“Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work.” (Art in America)
Inspired creativity is not the sole criterion. No one — artist or aficionado — wants the creative world stilted. And every artist is inspired by other artists’ methods, approaches, subjects, concepts, compositions… Many (perhaps, every) creative stands on the shoulders of giants. But profiting off of another artist’s creation should be clearly outside the bounds of fair use. There is a difference between admiring, inspired flattery and theft.
The purpose of copyright (and patent) is to “promote the progress of science and useful arts.” Copyright reformers complain that restricting fair use in almost any manner chills creativity and defies the purpose of copyright. They miss the point — the purpose — of copyright entirely.
Copyright protection promotes the progress of science and useful arts by securing rights for the creator — thus inspiring Johnny to forgo law school to write a novel, Jane to become a choreographer instead of a nurse, Blake to pay his rent waiting tables while painting into the night. It’s the promise of when the world celebrates a created piece and recognizes the genius, the artist (or inventor) will profit from that effort.
If there’s no pot ‘o gold at the end of the rainbow, why follow it?
Copyright is not there to protect copycats. Copyright promotes the progress of the useful arts by protecting the profit rights — and creative integrity — of the creator. And punishing copycats is precisely the point of copyright. Goldsmith’s lawyers elucidated this principle in oral argument.
The Artist Formally Known as Prince would presumably agree with me. He enforced his copyright — including the unsuccessful demand to remove a YouTube video of a child dancing to his song. Whether for control of commercial value or control of how the piece is represented, the artist has the right to say yes or no.
Does that sparkle sticker image represent the wedding photographer’s art and style? Probably not.
Commentators, legal scholars, and critics are strictly avoiding the profit-point of the conversation. Fair use is intended to be fair. In our insta-sharing critical fan-fiction world, we have lost sight of honoring — and paying — the creator. You want to put childish sparkles on your wedding picture? Make sure you have paid the photographer for the right to mangle her work.
When you first learn an instrument, with the exception of child prodigies, you play others’ compositions. Mary Had a Little Lamb, Smoke on the Water…. When you first learn to draw and paint, you copy the masters. You try Rembrandt’s technique. You attempt to mimic Annie Leibovitz poses or Joel Grimes lighting. Writers take a similar approach, writing new endings to literature. I wrote a new ending to The Great Gatsby (I wanted Daisy to pay for her crime, so I killed her off!)
But I didn’t sell my story.
You do not offer that copy — that mimicry — as your own. You do not profit from it. You do not file for a copyright of something that is not yours. The fair use exception permits inspired works and free and open expression — while restricting the overreaching works which are mere lazy instances of theft. Theft of the precise expression of an idea — without transformative element, without indices of creativity, without effort. Many of these fair use assertions are carts to the creator’s horse.
On May 18th, the USSC agreed that Warhol’s images violated Goldsmith’s copyright and did not qualify for fair use. Bam. Whiney commentors worry the decision could chill works by artists who make new works based on existing material. That nonsense perspective is precisely my point. I don’t see the case disposition as wreaking the art world. I see it as pushing artists to be artists and not copy machines.
Creatives who are truly talented create new art. They don’t need to copy.
And if the want-to-be creative must copy, he or she must pay the original artist.
Oh, copycat don’t like that part!
Consider J. K. Rowling. Her epic Harry Potter series is a fantasy genre piece. While fantasy follows a formula, Rowling’s characters and wizarding world are unique. Sure, she follows the orphan, gifted trope (Luke Skywalker, etc), but the story, the world, the characters, are unique and unforgettable.
Sure, I could fan-fiction a few hundred stories about Hermione and Ron or the goblins at Gringotts. Rowling’s world is inspiring. I could write stories about Middle Earth or Dune or pickle ball competitions on the Death Star. But I have the integrity — and the (emerging, wavering) talent — and the fortitude — to create something new.
I’m particularly amused by weak arguments that restricting fair use also infringes on free speech. Hate to break it to you scrambling critics, but free speech does not protect lies (slander, libel, fraud).
And that’s what these copycat infringers are. Liars. To the public and to themselves.
Goldsmith’s triumph sets legal precedent. I hope Richard Prince suffers what scholars can and will call The Prince Rule.
Then he’ll be famous for a just reason.
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Note: One creative commons license places the work into the public domain (CC-0). Other creative commons licenses provide alternative restrictions. Creators can use creative commons licenses to avoid retaining a lawyer, and allow others free or limited use of the work.
Published: 7.2023, Medium: Manual Focus