25 April 2013

I've got your picture
I'd like a million of you all round my cell

A fascinating case today out of the Second Circuit struggles mightily to make sense of appropriation art, and to categorize and analyze it within the framework afforded by the Copyright Act's fair use provisions in § 107. In the end, it fails, indicating that the Supreme Court was right over a century ago when it proclaimed judicial incompetence at evaluating art.

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change.

Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903). Apparently the Second Circuit did not catch the irony that Bleistein is the case in which the copyrightability of photographs was confirmed... and today's case involved appropriation of photographic portraiture. (So, for that matter, does the song lyric quoted in the title of this blawg entry... if a somewhat private appropriation and transformation!)

Today's decision in Cariou v. Prince, No. [20]11–1197 (2d Cir. 25 Apr 2013) (PDF), arose from an artist (Prince) appropriating published images in a book by a photographer (Cariou) for his own purposes. This was a collage-and-partially-transform effort; one representative example, discussed and reproduced in the opinion, involved cutting out the people from Cariou's book, then creating a collage with some alterations of both the background/context and cutouts and coloring on the photographs themselves (slip op. at 6). The District Court had found that Prince's uses were not fair use under § 107. The Second Circuit... well, that's a complicated story.

First of all, one must note the dubious continued worship of its own past in the Second Circuit's opinion. Not only is Judge Leval's 1990 article cited as the theoretical foundation for fair use (instead of, say, the statute, or the Constitution, or the Supreme Court decisions reifying the legislative path to § 107, or indeed the extensive discussion in other Supreme Court decisions since Judge Leval's article was published), but it provides the foundation for the artistic judgments that lead to its decision today. This would be difficult enough for a more-clearly-human-origin work such as a set of watercolors; it is rather overconfident when dealing with photography, which has historically had significant difficulty in demonstrating sufficient originality to sustain a copyright in the first place. Imagine, for a moment, that Cariou's photographs were not carefully posed portraits, but snapshots taken with a high-end camera of scenes he just happened to come across on a tour of Jamaica; or, conversely, that rather than mere portraits they were heavily costumed, posed works involving avant gardeish lighting and themes.

This leads to the real problem with Judge Parker's majority decision: It does, and tries to do, far too much. Rather than send the matter back for reconsideration under the proper legal standard, allowing the parties to restate their evidence and explain it under the proper legal standard, for 25 out of 30 of Prince's works it reverses the trier of fact and substitutes its own factual conclusions... requiring entry of final judgment on those 25 items. Further — in the kind of overconfident prose all too common throughout copyright litigation from both the parties and the judges, and distressingly so in the Second Circuit — the rhetoric of the opinion goes much too far in apparent pursuit of establishing a definitive legal framework based upon a very limited and specialized set of facts. Of particular note, Prince (admirably, IMNSHO) did not blather forth with an extensive post hoc legal rationale for his artistic decisions during his deposition... but that actually cuts both ways, and exposes one of the principle errors in contemporary fair use analysis. The artistic intent and process matter only before a work is created under the fair-use analysis; this leads precisely to the problem presented by Dr. Seuss Enters. L.P. v. Penguin Books USA, Inc., 104 F.3d 1394 (9th Cir. 1997), in which a parody defense failed primarily because, when one reads between the lines, the panel of judges found "making fun" of a difficult and controversial judicial proceeding (the OJ trial) inappropriate — perhaps under some subconscious "there but for grace go I" rubric. Conversely, it also leaves decisions like that in Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012) — a decision cited with approval in Cariou — almost inexplicable precisely because intent was not at issue in Brownmark. In Brownmark the Seventh Circuit (rightly) found that a visual comparison of two works led to an inescapable conclusion of "parody" on the pleadings without any other evidence.

Ironically, the result in Cariou is predictable from the fifth, nonstatutory fair use factor. From Prince's perspective, it would not have been administratively practicable for him to request, obtain, and presumably pay for permission to do what he did, regardless of anything else, for the forseeable market for his works. Although the Second Circuit seldom acknowledges the primacy of this fifth factor in its decisions, it has underpinned its fair-use jurisprudence in the visual arts since before the 1976 Act was passed. (Whether it should is a different question.) In this particular instance, Prince would have been required to go through a publisher for the permissions... and I'm afraid that the art-book publishing niche has a, shall we say, exaggerated idea of both its own entitlement to be the permissions gatekeeper and the market value of those permissions (while sending far too little of those proceeds on to the artists).

As usual, the real fun is going to begin when lawyers — the very ones not competent to be "final judges of the worth of pictorial illustrations" — begin to overinterpret Cariou for their own nefarious purposes. On one tentacle, you're going to see claims that Cariou means that cut-and-paste collages that do more than minimal changing of the images taken in the collage are somehow inherently fair use. On another tentacle, you're going to see claims that Cariou means that cut-and-paste jobs with a one-to-one correspondence can never be determined to be fair use on summary judgment. On yet another tentacle, you're going to see immense confusion when trying to apply Cariou outside the context of photography and of the visual arts in general, such as a verse-level medley of songs not previously recorded or of plain verses rather than song lyrics. In short, Cariou does not advance the state of the law; while it rejects one particular judicial resolution in the trial court below (rather, 25 out of 30, with 5 to be reconsidered), it does not provide a replicable framework. And that is precisely the point of the reservations in Bleistein quoted at the top of this blawg entry... and exposes that doing much with Cariou as "precedent" is going to be transformative appropriation art in itself.