The state of the 'fair use' defense in the art world

The great French Post-Impressionist painter Paul Gauguin once said, 'Art is either plagiarism or revolution.' More than 100 years later, this statement is still up for debate among artists, some of whose work is being found to infringe others' copyrights.

by Michelle Kaminsky, Esq.
updated March 23, 2023 ·  4min read

“Fair Use” is a well-recognized defense to copyright infringement. Basically, one defending against a claim of infringement can attempt to show that his or her use of the copyrighted work was “fair,” and therefore should not be considered infringement at all. Common examples of fair use are reviews of the copyrighted work where only a small sample is used, works that incorporate the original to create a parody (usually a send-up of or comment on the original) and works that “transform” the original into a wholly new work. It should go without saying that this is a hazy area of the law and one court's fair use is another's infringement.

So, is fair use still fair game in the art world? That question has always been open to debate (sampling in the music industry is a great example) and two recent court decisions against artists who appropriated others' photographs for use in their own work have brought it, once again, to the fore.

On the East Coast, a New York federal court ordered the destruction of millions of (potential) dollars worth of artwork created by Richard Prince because, the court held, he “unfairly” used copyrighted photographs by French photographer Patrick Cariou in his artwork without permission.

Judge Deborah Batts ruled that Prince's use of Cariou's pictures from the book, Yes Rasta, “in their entirety, or near so” went beyond “fair use” because Prince didn't create work “plainly different from the original purposes for which it was created” and also because the “market for Cariou's photos was usurped by” Prince's work (often the kiss of death for a fair use defense). Many of Prince's images added blotches over eyes, noses, and mouths of photos of Rastafarians, which Judge Batts ruled simply wasn't enough to make Prince's pieces “transformative” enough to be fair use.

Meanwhile on the West Coast, Appropriation artist Thierry Guetta (aka “Mr. Brainwash”) performed some alterations on what is certainly the most famous photo ever of rap group Run DMC and proceeded to claim the altered work as his own. US District Court judge Dean Pregerson didn't buy it—not the painting nor the argument: Guetta was found to have violated the copyright of Glen E. Friedman, who snapped the original photo and never gave Guetta permission to use it.

Pregerson ruled that "[t]o permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternative work would eviscerate any protection by the Copyright Act.” These two cases provide high-profile examples of how the concept of fair use can be challenged in the visual art world.

The take-away

If it seems like the cases discussed above, combined with others—like the famous Shepard Fairey/"Hope" poster matter—mean that fair use is dead, don't go there just yet. Court decisions regarding fair use are made on a case-by-case basis, and are based on four potentially subjective factors, so there is often no way to tell how a particular matter will turn out before it turns out. These cases turned out in favor of plaintiffs, so we may be seeing something of a movement in favor of copyright owners at the moment. But other cases, where clear “transformative use” is found lean the other way, and “transformation” has become something of a touchstone in this area—artist Jeff Koons has prevailed on that basis against a fashion photographer whose work he incorporated into a painting; and in Perfect 10, Inc. v. Google, Inc., the court found that Google's display of a third-party's infringing photos did not itself infringe Perfect 10's copyrights, since, despite Google displaying the photos as-is, the use that Google made of those images was, itself, transformative enough to qualify as fair. P.S., the Koons case was in the same court as the Richard Prince case; the Perfect 10 case was in California. Goes to show you never can tell.

Copyright has been a part of American jurisprudence for centuries, and just as with all laws, it evolves. The concept of fair use in art is no exception. If you have concerns about whether your use of another work might be considered fair use, you should educate yourself as thoroughly as possible, and consider speaking to a lawyer experienced in this area—this is not a place where guesswork yields good results. And if you want the only guaranteed safe way to use someone else's work as part of your own, ask the copyright owner for permission. And get it in writing.

To learn more about copyrights and fair use, visit the U.S. Copyright Office.

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Michelle Kaminsky, Esq.

About the Author

Michelle Kaminsky, Esq.

Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Juris Docto… Read more

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