fair use in Weinmayr 2019

licly in the

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 be

laim 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,’

ntil 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

nomy, 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 tha

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

Barron, Anne (1998) ‘No Other Law? Author–ity, Property and Aborigi

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

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.”


[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.



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