Q. Artist Jim Hodges has an installation on top of The Contemporary, Jones Center, art museum in Austin, TX, entitled “With Liberty And Justice For All.” Could I take a picture of the artwork, manipulate it with software, render it in a different physical environment and use it for commercial purposes? Would my new work be protected by copyright?
A. As explained by my November 17, 2009, blog, courts have disagreed as to whether photographs of copyrighted works are derivative works. This also was the issue when sculptor, Jack Mackie, sued photographer, Mike Hipple, because Hipple “used the image of [a part of the sculpture] in a piece of graphic art . . . [and] obliterated Mackie’s copyright notice, but used other parts of the rest of the [sculpture].” Hipple had offered the image for licensing through stock agencies. Just before trial, Hipple and Mackie settled their claims.
The U.S. Court of Federal Claims considered this legal issue in the Gaylord v. The United States case. The facts are convoluted, but, in sum, the artist of “The Column” (a sculpture depicting 19 Korean War soldiers that is part of the Korean War Veterans Memorial KWVM in Washington, D.C.) sued the USPS for its stamp that contained a photo of the work. While the trial court first held that the stamp was a fair use, the appellate court ultimately held that the stamp was an infringement.
Fair Use Analysis
Assuming that a court would find that a photo of a sculpture is a derivative work, then would your use be a fair use? Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. Specifically, Section 107 of the Copyright Act states that:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.
17 USC Section 107.
All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.
The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work. It’s not just whether the new work is different than the original but whether the new work has a different purpose (such as a book review rather than another book). Therefore, if your manipulation and use are transformative, then this would weigh for a finding of fair use.
A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right to control the first public appearance of works. In this case, Hodge’s work is published so this leans towards a finding of fair use.
An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example. If you don’t use all of the words from the installation, your new piece would be more likely to be considered a fair use.
When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. Since your market likely would be different than Hodges’, your new work would be more likely to be considered a fair use.
Compare what Jeff Koons did with his use of Blanch’s photo in Blanch v. Koons. There, Koons, an artist, incorporated a copyrighted photograph of a woman’s feet adorned with glittery Gucci sandals into a collage “commenting on the ‘commercial images . . . in our consumer culture.’” 467 F.3d 244, 248 (2d Cir. 2006). The court determined that Koons’ use was fair use in part because his collage was transformative. Id. at 252-53. The Court reasoned that the collage and the photo had “sharply different” purposes and that the collage was intended to be a “commentary on the social and aesthetic consequences of mass media. Such transformation of a copyrighted work into a larger commentary or criticism fall squarely within the definition of fair use.”
Richard Prince is known as an “appropriation artist.” There have been many controversies from Prince’s use of photographs, such as those from Marlboro advertisements and Twitter, and he has a history of using other commercial works. In another case, Patrick Cariou, a French photographer whose work was published in the book, Yes Rasta, filed a copyright infringement lawsuit against Richard Prince, the Gagosian Gallery, and others alleging that Prince’s paintings incorporated Cariou’s photographs (thus comprising derivative works) without permission or authorization. The court held that some were infringements and others were not.
So whether your work would be deemed an infringement is something only a court can say for sure.
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