Transformers: Can Fair Use Swallow Copyright?

There’s a fascinating story in the New York Times of 12/28 discussing at a considerable length a case on appeal in the 2nd Circuit. It involves the artist Richard Prince who, as the story points out, is accused of copyright infringement  for

” taking photographs from a book about Rastafarians and using them without permission to create the collages and a series of paintings based on them, which quickly sold for serious money… almost $2.5 million for one of the works.”

What could go wrong with that scenario? He took others’ copyrighted work, made a copies, sold it or them. True, but the question comes down to whether Prince’s work was sufficiently “transformative” to enable him to successfully invoke the “fair use defense” in copyright law.

In short, nothing is as simple as it seems, and with the rise of virtually cost-free ways of copying digitalized works and then manipulating them (see e.g. music sampling or any number of content “aggregators” on the Internet)), maybe a broad (or is it narrow?) reading off the transformative nature of  copying may ultimately come to undermine the point of copyright law in the first place.

As the article states:

Deciding what is sufficiently transformative and what is not has often been tough enough in other cultural realms, like music and literature. But as copyright tensions mount and the courts increasingly confront the issue in contemporary art, the question becomes ever trickier. In large part this is because the questions turns on artistic intent, often a much grayer area in the visual arts than in other arts, and especially so over the last three decades as art movements have fragmented. 

In other words,  to mix metaphors, it’s a slippery slope where the horse may already be out of the barn.

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