Some of the biggest names in the art and copyright community are getting involved in the ongoing battle over the legality of appropriation art. Earlier this month Google, The Andy Warhol Foundation, and The Association of Art Museum Directors each submitted amicus curiae briefs to the Cariou v. Prince appeal in the Second Circuit (for a discussion of the lower decision, see Treading a Very Fine Line: The Intersection of Contemporary Art and Copyright Law by IPLJ’s own Joshua Steinberger, or for an art blogger’s take, click here) While Warhol and the Museums take Prince’s side and urge the court to make a reversal, Google merely urges the court to narrow the holding set forth in the Southern District decision without advocating for either party.
The Andy Warhol Foundation
The brief submitted by The Andy Warhol Foundation, complete with numerous full page color photos, emphasizes the important cultural dialogue that occurs through art—especially appropriation art. It contends that the fair use standard applied by the Southern District is contrary to controlling law and mistakenly concludes that “the meaning of art can be defined strictly by the intent of the artist, or ignored altogether based on the artist’s failure to verbalize that meaning to a court’s satisfaction.” The foundation believes that the court was wrong when it concluded that the work created by Prince was not transformative simply because Prince said he did not intend to criticize or comment on the work he appropriated. Instead, as Campbell v. Acuff-Rose Music, Inc. clearly indicates, if a parodic element can be perceived, the work is transformative. 510 U.S. 569, 582 (1994).
The Warhol brief also advocates for a clearer definition of fair use. The First Amendment, according to the foundation, implores that the uncertainties found in the fair use doctrine be minimized. But the Southern District decision is rife with uncertainties that “chill expressive speech and artistic creativity.” The amicus brief contends that commercially successful artists like Prince can afford to make use of other works, but most artists are deterred from creating legitimately fair appropriation art due to the mere risk of being brought into court. The court failed to clarify the rule, and instead clouded it by applying the law differently than precedent requires.
The Association of Art Museum Directors
The Association of Art Museum Directors argues that appropriation art like Prince’s has a “long and distinguished pedigree” and therefore deserves careful consideration. The museums also suggest that the court should have individually analyzed each image, but is more concerned with the harsh remedies and secondary liability found against Gagosian Gallery, Prince’s dealer.
The southern district ordered that the unsold artwork at issue be detained and possibly destroyed and that any sold work cannot be displayed. The museums urge that this be reconsidered. Such a remedy makes it illegal for the museum to display work it considers to be highly. If applied broadly, this could prevent museums from displaying other appropriation art that has long been considered worthy of display, including works by artists such as Andy Warhol and Richard Prince’s own earlier works.
The museums seem most concerned by the fact that the lower court held the gallery directly liable for the infringement. They argue that such a broad holding could impose liability on museums for displaying appropriation art and further restrict their autonomy to choose the art to put on their walls. The court held that the gallery was liable not only because the images were displayed in the gallery and published in an exhibition catalog by the gallery, but also because they acted in bad faith since they did not ensure that Prince received permission to appropriate the works he did. But the museum brief argues that such a bad faith argument rests on circular reasoning. Accordingly, bad faith should not be a part of the fair use analysis.
While not technically picking sides, Google is concerned that the Southern District unduly limits what can be considered transformative for fair use purposes. The court concluded that “Prince’s Paintings are transformative only to the extent that they comment on [Cariou’s] photos.” But as Google states, this is not a correct application of the law. Transformation can occur without commentary, but the court didn’t consider such possibilities. Google then provides a long list of case law that suggests other possible ways a work can be transformative, each of which may or may not be useful for Prince’s case, but certainly shows that the court’s definition of transformation is far too narrow.
Google then attacks the Southern District’s bad faith analysis; just as the museums do not believe bad faith should be a part of the fair use analysis, Google argues that it should not matter whether or not the defendant sought a license to use the work. In fact, the court in Blanch v. Koons, held that “it can hardly have been an act of bad faith for [the defendant] to have neither sought nor been granted permission for the use . . . if, as we find, the use is otherwise fair.” 467 F.3d 244, 256 (2d Cir. 2006). Google’s snarkily concludes that “[t]he mere failure to seek a license should never be the factor that requires one to seek a license.”
Overall, the three amicus briefs make a strong argument for—at the very least—a remand. The Southern District decision was too narrow in its transformative use analysis, and too broad in its application of liability. Though an affirmation of the lower court’s decision would not likely bring about the end of appropriation art, as the analysis is still incredibly fact dependent, it could encourage more litigation between artists. However, according to some in the art community, applying U.S. copyright law to contemporary art requires “implying an outdated reverence for originality and authorship, values that concern contemporary art discourse just about as much as chivalry and filial piety.” So any artist who attempts to bring another into court may face a potential ostracizing. Perhaps this threat may be enough to keep work like Prince’s on the gallery walls and out of the courtroom.