Fair Use and Appropriation Art

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Posted by John E Grant on May 14, 2009

As I discussed in a previous post, the fair use doctrine provides an important check on the monopoly granted to copyright holders under copyright law. While copyright is a vitally important tool for content creators to protect their intellectual property, fair use has an equally important role in protecting “the progress of science and the useful arts” as mandated by the Constitution.

One place where fair use plays a significant but controversial role is in the field of appropriation art—taking someone else’s work and re-imagining it into a new piece. I’ve been really enjoying a few different examples of appropriation art lately, so one of the main reasons I thought I’d write a blog post on this topic is to share them.

But I also want to point out that copyright law, as strong as it is in favor of copyright holders, has its limits. Fair use is particularly strong where an artist takes pieces of protected works and repurposes those pieces such that the end product is so transformative of the original works that the end result is something completely new that doesn’t directly compete with the original.

I have little doubt that the 79 Moons From Flickr photo above or the Kutiman video below are transformative uses of their component parts, in part because collage, by combining many works into a single piece, seems to have an easier time than one to one appropriation like the current dispute between artist Shepard Fairey and the Associated Press over Fairey’s Obama “Hope” poster.

The Second Circuit Court of Appeals came to that very decision in Blanch v. Koons, 467 F.3d 244. The artist Jeff Koons had taken one pair of the legs (second from left) in the artwork at left from a photograph by Andrea Blanch titled Silk Sandals by Gucci that was published in the August 2000 issue of Allure magazine. The appeals court upheld the district court’s finding that “The painting’s use [of the photograph] does not ’supersede’ or duplicate the objective of the original, but uses it as raw material in a novel context to create new information, new aesthetics, and new insights. Such use, whether successful or not artistically, is transformative.”

I have to think that a similar result would apply to audio and video collages as well. The YouTube clip below from the artist Kutiman has been playing (along with the rest of the album) in the background while I write this post. If you haven’t seen and heard this yet, definitely check it out. Kutiman took user-submitted posts from musicians on YouTube as raw material for a whole album of new music. It is fascinating to watch, and musically it holds up extremely well. The track below, appropriate for this transformative use discussion, is titled “I’m New.”

Perhaps better known is the digital musician Gregg Gillis, better known as Girl Talk, who builds new songs using snippets from dozens of well known recordings from the past 40 years. To the amazement of many, Girl Talk has thus far avoided lawsuits from the copyright owners of the original songs, perhaps because the major record labels fear that losing a lawsuit would set a dangerous precident. Try the track Hold Up, from the album Night Ripper (warning, some explicit lyrics) to hear what it sounds like when Ludacris, James Taylor, and The Pixies (among others) are mashed up by a talented musician.

Of course, appropriation art is controversial, and what appropriation artists call “borrowing” might be considered outright theft by the original artist. Artists who appropriate the works of others run the risk that they’re going to make some people mad, possibly mad enough to sue. And even if an artist’s use of a work turns out to be fair use, as I often say to my clients, being right can still be expensive. In the Koons case above, even though the defendant prevailed he still had to come out of pocket for over $1 Million in legal fees (he tried to get an attorney’s fees award from the trial judge but the judge denied the request).

But while appropriation can be risky, there are some things you can do to minimize that risk. The School of Communication at American University maintains the Center for Social Media which publishes several helpful guides on the topic of fair use, and the Fair Use Project at Stanford Law School maintains a good list of fair use resources. While the guides aren’t foolproof, they should go a long way to helping artists understand the balance between copyright rights and fair use, and hopefully stay far enough away from the tipping point to avoid unwanted attention.

As always, for a better analysis of your particular situation, or if you’ve been accused of infringement, it is a good idea to consult a lawyer. Maybe one who gives free 20 minute mini-consultations, for example.

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