Copying for Me, But Not for Thee...

In a recent post, I discussed photographer Donald Graham's copyright infringement action against "appropriation artist" Richard Prince. Over at The Art Law Blog, Donn Zaretsky discusses the same case, in relation to several other related cases, specifically Pape v. LG and the recently filed Pope v. Jenner. Zaretsky asks, "The challenge for those seeking to make sense of this area of the law is to distinguish the . . . cases. Why are some kinds of appropriation okay and others not? What is the theory?" Or more specifically, "Can you think Richard Prince should win but [LG and Kylie] should lose? Can those positions be reconciled? Or do the . . . cases stand or fall together?"

Briefly, in Graham v. Prince, Prince copied an Instagram post featuring (most of) Graham's photograph, along with several comments, and used it to create a "painting." In Pape v. LG, LG Electronics created a smartphone wallpaper that resembles Brazilian artist Lygia Pape's sculpture “Ttéia 1, C” (1976–2004). And in Pope v. Jenner, Kylie Jenner created a logo for her new TV show "Life of Kylie" that resembles British artist Sarah Pope's sculpture "Temptation Neon." Images of the original and allegedly infringing works are after the break.

Of course, one can arguably distinguish the cases on the facts. Graham v. Prince involves "literal copying": Prince copied Graham's actual photograph. By contrast Pape v. LG and Pope v. Jenner involve "non-literal copying": neither LG nor Jenner copied the actual preexisting work, but rather created a new work that resembles it. Moreover, it isn't clear that the elements copied by LG and Jenner are protected by copyright in the first place.

In theory, the copyright infringement analysis should compare the original and allegedly infringing works to determine which elements were copied, and ask whether the copied elements are protected by copyright, before asking whether the copying makes the works substantially similar and therefore infringing. LG copied the concept of intersecting columns of gold thread (LG tried to license the concept from Pape), and Jenner allegedly copied the concept of a seductive lip bite surrounded by neon (there is no direct evidence of copying). Copyright can only protect particular expressions, not abstract ideas, and it is not obvious that the copied concepts are sufficiently particular for copyright protection.

But Zaretsky is asking a different question: Is the art world's conventional wisdom on copyright infringement and fair use driven by nature of the use or the nature of the parties? In other words, does the art world simply think it is fair use if an "artist" (i.e. insider) copies a "professional" (i.e. outsider), but infringement if it is the other way around? Zaretsky implies the answer is "yes." And I am inclined to agree with him. If anything, the infringement case against Prince is stronger than the cases against LG and Jenner. And yet the art world (mostly) seems to think that LG and Jenner are infringing, but Prince is not. In other words, artists want the right to copy others, but also the right to stop others from copying them. Understandable, but not terribly compelling.

Of course, some would frame the distinction as one of "transformativeness": Prince's use is a "transformative" fair use because he adds aesthetic value via new context and social commentary, but LG and Jenner's uses are not because they don't. I think that is a mistake. As I have previously argued, "transformativeness" shouldn't be a license for courts and juries to make judgments about the aesthetic value of a use. If aesthetic value is irrelevant to copyright protection, it should be irrelevant to fair use as well. And in any case, the art world might not like the alternative, when it realizes that the public's aesthetic values don't always line up with its own. If my first (semi-)viral tweet is any indication, the public votes for Jenner.

Graham v. Prince

Pape v. LG Electronics

Pope v. Jenner

Comments

[Laura Heymann]

If you haven't read it already, check out Andrew Gilden and Timothy Greene, Fair Use for the Rich and Fabulous, 80 U. Chi. L. Rev. Online 88 (2013) (at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1012&context=uclrev_online).

[Brian Frye]

Laura,

Thanks for mentioning Andrew's work, which I have found quite compelling, although I don't necessarily agree with all of his conclusions. While I think he is right that fair use is (effectively) discriminatory, my policy preference would be to expand it, rather than restrict it. Sauce for the goose is sauce for the gander?

BLF

[concerned_citizen]

The Pape and Pope cases both look like a misuse of copyright to expansively attempt to cover the entire "basic idea" of what the artists' original work was.

Unfortunately we've had district courts bite on these sort of claims before.

[Brian Frye]

Concerned Citizen,

Thanks for your comment. I agree with your assessment of both the doctrinal & practical viability of the Pape & Pope infringement claims. I think they are interesting because the reflect (or maybe illustrate?) the divergence of (theoretical) copyright doctrine and art world copying norms, which tend to excuse art world insiders who copy works created by art world outsiders, but which tend to be quite broad when it comes to insiders copying insider - closer to "plagiarism" norms that copyright. Anecdotally, copying another artist's "style" or "ideas" is normatively prohibited, even though non-infringing, unless part of an explicit homage or parody to the original. In other words, attribution plays a significant role, even though it (nominally) isn't (typically) required by copyright doctrine, with the arguable and limited exception of VARA rights.

BLF