The Dynamic Application of the Fair Use Doctrine in Art Appropriation Cases

The Dynamic Application of the Fair Use Doctrine in Art Appropriation Cases

The fair use doctrine permits one to use a copyrighted work without first receiving permission from the copyright owner.^[1] Fair use is a complete defense to a copyright infringement cause of action and is codified at 17 U.S.C. §107.^[2] Courts, per the statute, may utilize the following four factors when deciding fair use issues:

(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.^[3]

However, fair use’s broad and “context-sensitive inquiry” often lead courts to disagree about the weight of each of the doctrine’s factors and reach differing conclusions.^[4] New York’s various fair use decisions in the spring of 2021, such as Marano v. Metropolitan Museum of Art and Warhol v. Goldsmith, are examples of fair use decisions that do not quite fit together to create clear guidance on the application of the fair use doctrine moving forward. Specifically, the Second Circuit’s decisions in both cases reflect significant disaccord regarding the circumstances in which a “change to a medium or platform (as between the original and secondary uses) is probative” for works in art appropriation cases.^[5]

In Marano v. Metropolitan Museum of Art,^[6] the Second Circuit held that a museum’s use of a photographer’s photo of musician Eddie Van Halen did not infringe upon the photographer’s copyright because the museum was using the photo in a scholarly context, meaning it falls squarely under the fair use exception of the Copyright Act.^[7] According to Judge Caproni, the museum’s use of the photo constituted a “scholarly context” because it considered the historically significant impact that the guitar depicted in the photo had on the rock and roll art form.^[8] The court focuses on fair use’s second factor, the nature of a copyrighted work, to reach its conclusion. Here, the court interprets this second factor to require that a copyrighted work be sufficiently “transformative” in nature in order for the work in question to fall under the fair use exception. The court utilizes this transformativeness factor to conclude that the museum’s use of the image was not infringing because the image was being used for a unique purpose. Thus, the court in this case indicates that the context of the museum’s use, placing the photo in question alongside other photos of performing musicians, is what transforms the photo, and that “the Met need not have manipulated or altered the underlying photo in order to achieve a transformative use.”^[9]

In direct contrast with the Second Circuit’s finding in Marano, the Second Circuit held in Warhol v. Goldsmith that Warhol’s artwork illustrating musician Prince was not fair use of the copyrighted photograph on which the work was based.^[10] In this case, artist Andy Warhol used photographer Lynn Goldsmith’s photograph of Prince “to create fifteen new unauthorized silkscreen and pencil artworks” known as the “Prince Series.”^[11] There, the court held Warhol’s work failed to meet the bar for transformativeness because his work retained essential elements of the original photo “without significantly adding to or altering those elements.”^[12] In contrast with Marano, the Goldsmith court notes that transformativeness cannot be determined by simply inspecting the artist’s perceived intent– a judge must examine whether a new work’s use of source material serves a “’…fundamentally different and new artistic purpose and character, such that the secondary work stands apart from the raw material used to create it.’”^[13]

Marano reflects a broader application of the fair use doctrine, allowing a secondary work to satisfy the bar for “transformativeness” merely based on its new context, while Goldsmith signals a narrowing application of the fair use doctrine, in which a “new use must have new meaning, not merely a new context.”^[14] The incredibly dynamic application of the fair use doctrine makes appropriation art cases difficult to analyze and should therefore alert copyright practitioners moving forward to pay attention to how the different focuses of these recent opinions continue to evolve and to which factors of the fair use analysis gain prominence.