fair use in Weinmayr 2019


atalogue publisher Rizzoli. Prince had appropriated
Cariou’s photographs in his series Canal Zone which went on show at Gagosian
Gallery.[34](ch11.xhtml#footnote-492) A first ruling by a district judge
stated that Prince’s appropriation was copyright infringement and requested
him to destroy the unsold paintings on show. The ruling also forbade those
that had been sold from being displayed publicly in the
future.[35](ch11.xhtml#footnote-491)

However Prince’s eventual appeal turned the verdict around. A second circuit
court decided that twenty-five of his thirty paintings fell under the fair use
rule. The legal concept of fair use allows for copyright exceptions in order
to balance the interests of exclusive right holders with the interests of
users and the public ‘for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research’.[36](ch11.xhtml#footnote-490) One requirement to justify fair use is
that the new work should be transformative, understood as presenting a new
expression, meaning or message. The appeal’s court considered Prince’s
appropriation as sufficiently transformative because a ‘reasonable
observer’[37](ch11.xhtml#footnote-489)would perceive aesthetic differences
with the original.[38](ch11.xhtml#footnote-488)

Many artists applauded the appeal court’s verdict, as it seemed to set a
precedent for a more liberal approach towards appropriation art. Yet attorney
Sergio Muñoz Sarmiento and art historian Lauren van Haaften-Schick voiced
concerns about the verdi


79) Such arguing is dangerous, because it
brings social class, celebrity status and art market success into play as
legal categories to be considered in future copyright cases and dismisses
‘Cariou’s claim as a legitimate author and
artist’.[48](ch11.xhtml#footnote-478) The parties eventually reached an out-
of-court settlement regarding the remaining five paintings, and their
infringement claim was returned to the district court meaning that no ruling
had been issued. This pragmatic settlement can be interpreted as a missed
opportunity for further clarification in the interpretation of fair use. No
details about the settlement have been disclosed.[49](ch11.xhtml#footnote-477)

Richard Prince presented himself in his court deposition as an artist, who
‘do[es]n’t really have a message,’ and was not ‘trying to create anything with
a new meaning or a new message.’[50](ch11.xhtml#footnote-476) Nevertheless the
appeal court’s ruling transforms the ‘elusive artist not only into a subject,
but also into an [artist] author’[51](ch11.xhtml#footnote-475) — a status he
set out to challenge in the first place. Therefore Richard Prince’s ongoing
games[52](ch11.xhtml#footnote


nagement policymakers, which not only turn creative
practices into private property, but trigger working policies that produce
precarious self-entrepreneurship and sacrifice in pursuit of
gratification.[66](ch11.xhtml#footnote-460)

We find this kind of thinking reflected for instance on the website built by
the University of the Arts London to give advice on intellectual property —
which was until recently headlined ‘Own It’.[67](ch11.xhtml#footnote-459)
Here, institutional policies privilege the privatisation and propertisation of
creative student work over the concept of sharing and fair use.

There is evidence that this line of thought creates a self-inflicted
impediment for cultural workers inside and outside art colleges. The College
Art Association, a US-based organization of about fourteen thousand artists,
arts professionals, students and scholars released a report in 2015 on the
state of fair use in the visual arts.[68](ch11.xhtml#footnote-458) The survey
reveals that ‘visual arts communities of practice share a great deal of
confusion about and misunderstanding of the nature of copyright law and the
availability of fair use. […] Formal education on copyright, not least at art
colleges, appears to increase tendencies to overestimate risk and underuse
fair use.’ As a result, the report states, the work of art students ‘is
constrained and censored, most powerfully by themselves, because of that
confusion and the resulting fear and anxiety.’[69](ch11.xhtml#footnote-457)

This climate even results in outright self-censorship. The interviewees of
this study ‘repeatedly expressed a pre-emptive decision not to pursue an
idea’[70](ch11.xhtml#footnote-456) because gaining permission from right
holders is often


port called this mindset a ‘permissions culture’, giving some examples. ‘I
think of copyright as a cudgel, and I have been repeatedly forestalled and
censored because I have not been able to obtain copyright permission’, stated
one academic, whose research did not get approval from an artist’s estate. He
added: ‘For those of us who work against the grain of [the] market-driven arts
economy, their one recourse for controlling us is copyright.’ Another said:
‘In many cases I have encountered artists’ estates and sometimes artists who
refuse rights to publish (even when clearly fair use) unless they like the
interpretation in the text. This is censorship and very deleterious to
scholarship and a free public discourse on
images.’[71](ch11.xhtml#footnote-455) One scholar declared that copyright
questions overshadowed his entire work process: ‘In my own writing, I’m
worrying all the time.’[72](ch11.xhtml#footnote-454) In such a climate of
anxiety ‘editors choose not to publish books that they believe might have
prohibitive permission costs; museums delay or abandon digital-access
projects’, as Ben Mauk comments in the New Yorker
Magazine.[73](ch11.xhtml#footnote-453)


ticle/45738-j-d-salinger-estate-swedish-author-settle-copyright-
suit.html>

Allen, Greg, ed. (2012) The Deposition of Richard Prince in the Case of Cariou
v. Prince et al. (Zurich: Bookhorse).

AND Publishing (4 May 2011) ‘AND Publishing announces The Piracy Lectures’,
Art Agenda, piracy-lectures/>

Andersson, Jonas (2009) ‘For the Good of the Net: The Pirate Bay as a
Strategic Sovereign’, Culture Machine 10, 64–108.

Aufderheide, Patricia, Peter Jaszi, Bryan Bello and Tijana Milosevic (2014)
Copyright, Permissions, and Fair Use Among Visual Artists and the Academic and
Museum Visual Arts Communities: An Issues Report (New York: College Art
Association).

Barron, Anne (1998) ‘No Other Law? Author–ity, Property and Aboriginal Art’,
in Lionel Bently and Spyros Maniatis (eds.), Intellectual Property and Ethics
(London: Sweet and Maxwell), pp. 37–88.

Barthes, Roland (1967) ‘The Death of the Author’, Aspen, [n.p.],


Benjamin, Walter (1970) ‘The Author as Producer’ in New Left Review 1.62,
83–96.

Bently, Lionel (1994) ‘Copyright and the Death of t


his painting series Canal Zone, which was shown at Gagosian Gallery, New
York, in 2008.

[35](ch11.xhtml#footnote-491-backlink) It might be no coincidence (or then
again, it might) that the district court judge in this case, Deborah Batts, is
the same judge who ruled in the 2009 case in which Salinger successfully
brought suit for copyright infringement against Swedish author Fredrik Colting
for 60 Years Later Coming Through the Rye, a sequel to Salinger’s book. See
note 31.

[36](ch11.xhtml#footnote-490-backlink) ’In determining whether the use made of
a work in any particular case is a fair use the factors to be considered shall
include — (1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes; (2) the
nature of the copyrighted work; (3) the amount and substantiality of the
portion used in relation to the copyrighted work as a whole; and (4) the
effect of the use upon the potential market for or value of the copyrighted
work.’ US Copyright Act of 1976, amended 2016,


[37](ch11.xhtml#footnote-489-backlink) ‘What is critical is how the work in
question appears to


ing by designation from the US Court of
Appeals for the Ninth Circuit, ‘I, for one, do not believe that I am in a
position to make these fact- and opinion-intensive decisions on the twenty-
five works that passed the majority’s judicial observation. […] nor am I
trained to make art opinions ab initio.’ Ibid., p. 5\.

‘Furthermore, Judge Wallace questions the majority’s insistence on analyzing
only the visual similarities and differences between Cariou’s and Prince’s art
works, “Unlike the majority, I would allow the district court to consider
Prince’s statements reviewing fair use … I see no reason to discount Prince’s
statements as the majority does.” In fact, Judge Wallace remarks that he views
Prince’s statements as “relevant to the transformativeness analysis.” Judge
Wallace does not believe that a simple visual side-by-side analysis is enough
because this would call for judges to “employ [their] own artistic
Judgment[s].”’ Sergio Muñoz Sarmiento and Lauren van Haaften-Schick, citing
court documents. ‘Cariou v. Prince: Toward a Theory of Aesthetic-Judicial
Judgements’, Texas A&M Law Review, vol. 1, 2013–2014, p. 948.

[41](ch11.xhtml#footno


ndon:
Verso, 2015).

[67](ch11.xhtml#footnote-459-backlink) University of the Arts London,
‘Intellectual Property Know-How for the Creative Sector’. This site was
initially accessed on 30 March 2015. In 2018 it was taken down and integrated
into the UAL Intellectual Property Advice pages. Their downloadable PDFs still
show the ‘Own-it’ logo, /freelance-and-business-advice/intellectual-property-advice>

[68](ch11.xhtml#footnote-458-backlink) Patricia Aufderheide, Peter Jaszi,
Bryan Bello, and Tijana Milosevic, Copyright, Permissions, and Fair Use Among
Visual Artists and the Academic and Museum Visual Arts Communities: An Issues
Report (New York: College Art Association, 2014).

[69](ch11.xhtml#footnote-457-backlink) Ibid., p. 5.

[70](ch11.xhtml#footnote-456-backlink) Sixty-six percent of all those who
reported that they had abandoned or avoided a project because of an actual or
perceived inability to obtain permissions said they would be ‘very likely’ to
use copyrighted works of others more than they have in the past were
permissions not needed. Ibid., p. 50.

[71](ch11.xhtml#footnote-455-backlink) The Copyright, Permissions, a

 

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