Parody ≠ Transformative Use
I know you’ve been playing Is it Fair Use? the fast-paced, brain-teasing game that’s sweeping the nation. That means you’ve already played the very first installment, which involved an “appropriation artist,” some photographs of Rastafarians, and a cancelled art show. If you haven’t, or you want to refresh your recollection, go play that round, then come back here. Meanwhile, here’s the main image I focused on in that case, Prince’s Graduation (right), and the Cariou photograph he borrowed:
Left: Patrick Cariou, Photograph from Yes Rasta, p. 118. Right: Richard Prince, Graduation
So it wasn’t fair use, right? And I said that the decision (read it again here) was about as well-reasoned as you’ll find? I thought the two most important facts were (1) that Cariou had an exhibition planned but it fell through when Cristiane Celle, the gallery owner, found out about Prince’s exhibition; and (2) that this, a work called Graduation, was a typical example of Prince’s “transformation” of Cariou’s work. I expressed concern, however, that the case seemed to turn on how well the artist was able to explain himself.
Is his Case More Appealing Than his “Art”?
Let’s play … Read More»
Can Green Day Exit Through the Gift Shop?
Are you ready for another installment of Is it Fair Use?, the fast-paced, action-packed game in which I give you a fact pattern, and you take a blind stab at whether the court found or didn’t find fair use. Today’s installment is brought to you by Green Day, and also by the Oscar-nominated documentary, Exit Through the Gift Shop.
Our story begins with the artist Los Angeles artist Derek Seltzer, who created a work of art, which he called, Scream Icon. I’d show it to you, but it’s impossible to find an image that isn’t part of a story that gives away the ending! It consists of a black-and-white portrait of a fanged man in a rictus of a huge, well, scream. AAAAAAARG! Sort of like that.
Seltzer put this image onto posters and stickers, and then posted those images on walls, telephone poles and what-not around town. It doesn’t appear from the opinion that Seltzer had much success selling copies of Scream Icon, though he did license it once to a rock band for use in a music video.
One day, another artist, Roger Staub, happened across … Read More»
Welcome to the Game We’re Calling, “Is It Fair Use?”
I’m starting a new occasional series called, “Is it Fair Use?” where I set out the facts from an actual copyright or trademark decision involving fair use, and you get to guess how the court ruled.*
* This idea is completely ripped off from one of my absolute favorite law blogs, The TTABlog. It’s highly specialized and wonky, but it is up-do-date, erudite, witty and consistent.
For my inaugural “Is it Fair Use?” I’m going back to a fairly old case (March of this year) that has been in the news again because its interlocutory appeal has been approved by the Second Circuit (for obscure procedural reasons, this had been in doubt).* Some of you will recognize it immediately, even though I’ll suppress some of the more recognizable facts. Don’t spoil it for the others! Even so, it’s hard to resist starting with this case because everyone thought this was an easy, slam-dunk, open-and-shut fair-use case, but no one agreed on what the easy, slam-dunk, open-and-shut ruling should have been.
* This constitutes a perfectly good reason to dredge up an old decision. Really.
The defendant is an … Read More»