May 1st, 2013
In a potentially landmark fair use case, appropriation artist Richard Prince had a victory in the Second Circuit Court of Appeals over photographer Patrick Cariou who had filed a lawsuit against Prince claiming that the artist’s work infringed upon the photographer’s copyright in certain photographs. Prince admitted to taking, altering and incorporating Cariou’s photographs in a series of paintings and collages called Canal Zone. While Prince could have made a fair use defense based on his works’ commenting on the original work, he instead said his works ”don’t really have a message.” Still, the court of appeal applied a broad interpretation of art and fair use and held that 25 of the 30 works did not infringe upon the photographers copyright because they were sufficiently transformative to be protected by fair use. Prince’s statement of his work not having a message was not dispositive in the court’s consideration of the nature of his work. The court explained: “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 transformative nature.” The case was remanded to the district court for a determination on the liability for the 5 potentially infringing works that were not sufficiently transformative as to constitute fair use.
Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/doc/11-1197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/hilite/
Lots of action has been surrounding the first sale doctrine lately. Most recently, a New York federal judge ruled that the first sale doctrine does not apply to digital music. ”The first-sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce,” Judge Sullivan found in Capital Records, LLC vs. Redigi Inc.. The first sale doctrine allows owners of a copyright protected work (like a copy of a book or cd) to resell that item without compensating the owner of the copyright. Redigi allowed users to upload their digital music files to a cloud then sell them to third parties at which point the original file would be deleted from their harddrives. According to the decision, the digital files are actually copied upon transfer to the buyer, not the original item as would be the case with a material item.