Category: Art

Brammer Appeals Unsound Ruling in Otherwise Simple Copyright Case

In June, I wrote about the deeply flawed ruling in Brammer v. Violent Hues after the District Court for the Eastern District of Virginia handed down some rather inscrutable opinions about an otherwise straightforward copyright infringement case.  A production company company called Violent Hues used a photograph belonging to Russell Brammer on a website for the purpose of promoting a film festival.  The district court held that the use was a fair use predicated on errors of both fact and law, which are now enumerated in Brammer’s appeal to the Fourth Circuit, filed on October 22.  I suspect Brammer will prevail in this appeal, but I wanted to comment on one aspect of the response.

In the days before a now woefully unclear principle called “transformativeness” was introduced to the fair use doctrine (see discussion here), Brammer would have been a very simple case.  A photograph was copied and displayed for commercial purposes and used without a license.  The defendant would not have a leg to stand on, and the complaint would end in settlement. 

But as described in this recent post about Richard Prince’s unlicensed use of Donald Graham’s photograph to make “fine art,” various parties have sought to leverage the ambiguous nature of “transformativeness” in order to assert that it means little more than using a protected work in a context the original author had not exploited at the time of the infringing use.  I know that’s a mouthful, but such is the nature of twisted logic.  

In Brammer, the lower court held that Violent Hues had only made use of the informative aspect of Brammer’s photograph, displaying it in an informational context on a website, and so this was different from the photographer’s original, expressive purpose.  This line of reasoning is fraught with destructive implications; but one comment I made half-jokingly in my June post was that if, indeed, a court were able to identify two images (one expressive, one informative) in a single photograph, then Mr. Brammer ought to sue for infringement of his right to make derivative works.  

I say this was only half joking because, as Brammer’s appeal points out, one significant pitfall of an over-broad interpretation of “transformativeness” is that it can eliminate the author’s right to prepare derivative works as protected under copyright law §106(2).  In fact, the brief refers to a highly-controversial ruling by the Second Circuit which held that Richard Prince (yeah, him again) had made fair use of several photographs belonging to Patrick Cariou, stating “Cariou and its predecessors in the Second Circuit do not explain how every ‘transformative use’ can be ‘fair use’ without extinguishing the author’s rights under § 106(2).”   

So, I wasn’t really kidding.  Either the district court erred in holding that a photograph can be metaphysically split into identical twins with entirely separate identities, or Violent Hues infringed Brammer’s right to prepare his (expressive) work as a derivative (informative) work.  Spoiler:  the initial parsing of the image by the district court is preposterous as a matter of law, art, culture, and basic reason.   

The brief goes on to assert, “The Second Circuit heard the criticism [about the derivative works right] and received the message that its post-Campbell holdings went too far. In subsequent decisions, it dialed back what can qualify as transformative, holding that the Google Books and Cariou cases presented unique factual circumstances, and limited what can be viewed properly as a transformative justification.”

As addressed in other posts, the “transformativeness” doctrine is a squirrelly little bugger. It has caused splits among circuits and, as we see in Brammer, can result in a federal appeal where settlement should have been the natural outcome.  It seems likely that before long the Supreme Court will need to chisel this particular doctrine into some kind of coherent shape.  As such, rights holders should demand that its meaning remains tethered to the way in which it was first applied in Campbell v. Acuff-Rose in 1994.

To Review…

Assessing “transformativeness” is a consideration under the first fair use factor, which weighs the “nature and character of the use.”  It was first weighed in a manner entirely consistent with the spirit of fair use, which is to limit copyright’s protections so that they do not stifle otherwise unachievable new forms of expression.  Thus, a use which “transforms” by adding to or amending an original work in a way that creates a wholly new expression is well-suited to consideration for its amount of “transformativeness,” especially if the nature of the original work is intrinsic to the new expression.  

As first applied in Cambell, the Supreme Court held that a consideration of “transformativeness” favored the manner in which 2 Live Crew had used the song “Oh, Pretty Woman,” not solely because the raunchy rap version was new, but because there was an extent to which it parodied the spirit of the original, and this commentary was constituent to the nature of the new expression. 

Clearly, the considerations in Campbell are a far cry from a case like Brammer, where no new expression was created, but where the defendant simply used a whole work, as is, without permission (not that different from Prince v. Graham, really).  Still, the errors made by the district court in this otherwise simple case reveal the extent to which the “transformativeness” doctrine is in dire need of clarification.

As I said in the past, I think the word itself is problematic.  It is just too easy to shift perspective from considering how a use may “transform” a creative work to a consideration of how a use may have a “transformative” effect on an audience, or on society as a whole.  Both of these distinct perspectives have been present in fair use analyses, but arguably only the former truly examines expression itself, which is the purview of copyright law.  So, I expect Russell Brammer will prevail in this appeal, but we have not heard the last of these semantic adventures to the edge of reason aboard the “S.S. Transformative.” 

Graham v. Prince or Art v. Fair Use

Richard Prince is one of the most reviled names in the worlds of photography and copyright.  This is because his career and notoriety are built largely on high-profile “appropriation” art works, which have earned him considerably more income than most artists ever see, including, of course, most of the photographers whose images he has used without permission.  

In September of 2015, artists, copyright advocates, and the web-conscious reacted with strong emotions to New York’s Gagosian Gallery hosting an exhibit called “New Portraits,” comprising 38 pieces in which Prince used people’s Instagram photos without permission.  Each of the nearly 5’ x 6’ canvasses depicts a screen-grab of the photograph within the Instagram interface and with a few comments, including one made by Prince himself.   The headline about this exhibit that seemed to outrage most people was that Prince had appropriated these Instagram photos without permission and then sold them as fine art, reportedly earning $150,000 for at least one of the pieces.  

In response to that story, I wrote a post in May of 2015 arguing that what Prince had done, despite his utter disdain for copyright, was indeed art.  Specifically, I considered the fact that he had “artified” images which had essentially been thrown away—because posting on social media relinquishes individual authorship to an extent—to be the kind of provocative, contemporary statement that clearly follows a well-established tradition in modern art.  But just because the overall purpose of the multiple appropriations Prince made may be defensible as an “artistic statement,” this does not necessarily mean that each appropriation is itself a fair use under copyright law.  And one litigation stemming from this collection of “New Portraits” may prove this point.  

Graham v. Prince

One of the photos Prince used for this series is not the work of an amateur, and was not even uploaded by the photographer himself to Instagram.  Titled “Rastafarian Smoking a Joint” the photograph was captured in Jamaica in 1996 by professional photographer Donald Graham, who—and this is important—also sells his photographs in the fine art market.  In Prince’s “New Portraits” show, the Instagram reprint of Graham’s photo was presented as “Untitled” and was eventually purchased by the Gagosian Gallery itself.  

Graham filed suit for copyright infringement naming both Prince and Gagosian as defendants in December of 2015.  In addition to being used in “Untitled,” Graham alleges that his photo was displayed in marketing material, including a billboard used to promote the series, and that Prince made an infringing use when he posted the photo on Twitter in a defiant (okay, fuck you) response to the lawsuit. 

Prince and Gagosian are of course making a fair use defense and even filed a motion to dismiss on that basis; but the court (S.D.N.Y.) denied the motion in July of 2017, primarily because fair use is a fact-based analysis which is not, in general, properly weighed at the motion to dismiss phase of a lawsuit.  Further, the court’s opinion in its denial of the motion suggests Graham would likely prevail in a fair use analysis and also reveals that the rationale being applied by the defendants asserts (once again) a very broad interpretation of that bugaboo doctrine of fair use known as “transformativeness.”

Akin to the manner in which certain tech companies have tried to argue that merely migrating an appropriated work into a new medium or context is inherently “transformative” (see post here), Prince is presenting a very similar argument in Graham.  His defense amounts to an assertion that, despite his having copied the entire “Rastafarian” photograph with only de minimis alterations, he has “transformed” the work by placing it in a new context—one which asks viewers to think about themes related to social media, but not related to anything specifically expressed in Graham’s original photograph.  This understanding of “transformativeness” does not typically hold up in a fair use defense, but Prince is not the only party to try to promote such an interpretation.

It is not normally kosher to use a whole work without license as a supporting or central asset in an expression that is entirely separate from the meaning or expression embodied in the work being used.  In this regard, I would argue that Prince has used Graham’s photograph in much the same way a non-fiction author might include a protected photograph in her book.  Absent a license, the infringement of a photograph in this case would not be mitigated by the overall merits—including its value to to society—of the book itself.  Similarly, it should not matter what Prince was saying—or trying to say—with the “New Portraits” exhibit; the fact that Graham’s “unobstructed and unaltered photograph is the dominant image” in “Untitled” weighs substantially against finding “transformativeness” under the first factor.

In citing Prince v. Cariou, a case in which Prince prevailed on a fair use in defense for his use of all but five photographs belonging to Patrick Cariou, the court states, “In fact, the ‘alterations’ Prince made in this case are materially less significant than those that were found to be insufficiently transformative to clearly warrant a finding of fair use in Cariou.”  

Further, on the subject of art v. fair use, I would caution that what Prince has truly done to “transform” Graham’s photograph (and all the others he appropriated) is to put his name on it.  Remove Prince himself from the equation, and the perceived value—both artistic and monetary—of these Instagram canvasses drops quite possibly to zero.  Just ask Gagosian what they would pay if, for instance, I offered them the same images; and it is worth noting that the commercial nature of “Untitled,” which weighs against fair use, is substantially intertwined with Prince’s rather thin “transformative” argument, both of which turn on the assumption of some Midas-like quality to his celebrity.

Such metaphysics may be sufficient for the world of fine art (see Banksy shredding his painting the moment it sold for $1.4 million at Sotheby’s), and there is an extent to which the same metaphysics are present in the foundation of authorship in copyright law; but if it were indeed correct to say that the artist with the most marketable name may “transform” the work of another artist simply by moving it wholesale into the domain of his imprimatur, then the boundaries of copyright, and the fair use exception, would have no meaning whatsoever.   

In fact, it was Prince himself who emphasized the (often absurd) relationship between publicity and artistic value when he publicly revoked his authorship of the Instagram canvass he had made from a selfie of Ivanka Trump, and which she purchased for $36,000.  Displeased with Trump’s election, Prince supposedly returned the money to Ivanka and declared the work to be “no longer a Prince,” which begs all manner of legal and metaphysical questions as to whether an artist can truly disavow a work made from little more than a photograph he originally appropriated from the buyer of the work!  (And of course the most likely outcome will be an increase in the work’s monetary value because of the story.)

A Few Unusual Details

Graham v. Prince also entails a few nuances that do not often present themselves in copyright cases.  For one thing, “Rastafarian Smoking a Joint” was not registered at the Copyright Office at the time Graham filed suit, though it was registered by the time the billboard was made and certainly before Prince posted the photo in his allegedly infringing tweet.  Although it is a general rule of thumb that authors who do not register works have a hard time proceeding with litigation, this case illustrates that Graham may be able to prove actual damages (i.e. losses) and, more likely, that he may be awarded some portion of profits generated by both Prince and Gagosian based partly on the unlicensed exploitation of his work.  

Another aspect of this case that caught my eye was that if Graham prevails, part of his relief may include a court order to have the infringing works forfeited and/or destroyed.  This remedy dates back at least as far as the first copyright statute of queen Anne (1710), which provides for infringing copies of a book to be turned over to the proprietor, “who shall forthwith damask and make waste paper of them;” but it is not a remedy we see very often in the modern, let alone digital, world where infringers are usually enjoined from continuing some practice.  

But in the fine art world, where both Graham and Prince have market value that clearly intertwines name (i.e. brand) and creative expression, the very existence of “Untitled” and its use in promotional materials by Gagosian may be viewed as an appropriation that fails under the fourth factor of the fair use test, which assess potential market harm to the original work.  Prince has argued the opposite—that his use in fact elevates the market potential for Graham’s photograph, but I suspect a court will not find this persuasive if this case proceeds.  

Of course, if in fact Prince’s “Untitled” is destined to be destroyed, I suppose he and Graham could collaborate and ask Banksy to shred it, which will then make it worth a cool million at Sotheby’s.  At that point, the work will arguably be Banksy’s, which only further emphasizes my point that copyright law cannot be quite as ambiguous as the mercurial nature of what we call, or don’t call, “art.”

You’re Watching Too Much TV—All Because of Copyright!

An editorial appeared in The Hill written by Martin Skladany, associate professor of law at Penn State.  Titled To curb dangers of media consumption, let’s reconsider copyright law, the article comprises an incoherent litany of social complaints; but to the extent one can glean any thesis from its dissociated and unsupported declaratives, I suppose it would be the following:

“…excessive copyright protection has turned art – which is meant to inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death – into a glossy corporate weapon that Hollywood wields to effectively imprison vast swaths of society.  ‘We the people’ are ‘doing time’ in front of a screen.”

In sum,  Skladany thinks Americans have become mush-headed and morally depleted (as evidenced by our vitriolic political climate) because we are watching too much filmed entertainment; and the underlying cause of this addiction is strong copyright law, which enables “Hollywood” to keep us hooked on their “glossy” (i.e. frivolous) wares.  I have to say, as someone who’s never seen Game of Thrones and is more likely to be found reading than watching TV, that Skladany is behaving like a highfalutin prig; and in doing so, manages to make a hash of copyright law, art, filmed entertainment, journalism, and the topic of media gluttony all at the same time.  

For one thing, I have no idea on what authority he declares that the purpose of art is to “inspire us intellectually and support us emotionally, to enable us to cope with the uncertainty of life and the finality of death”?  Really?  Is that what Bukowski is doing?  Or David Lynch? Or Banksy?  Or Shakespeare for that matter?  Artists may hope to inspire intellectually at times—though certainly not always—but if indeed they were merely the self-help gurus Skladany seems to think they should be, their works would be intolerably tedious. 

If Skladany wants to propose that entertainment and news reporting have merged in a way that is unhealthy for journalism, that would be a hard premise to refute and certainly makes a worthwhile discussion on its own. Or if he wishes to opine on the not very original theme that “low art” tends to be more popular than “high art,” that’s also a separate conversation, albeit a purely academic one.  But neither of these topics justifies lumping all content that appears on all screens into a single category, labeling it “corporate mind control” and then, bizarrely, diagnosing copyright law as the underlying infection causing a social disease.

Like other academics of his ilk, Skladany refers generically to “Hollywood” as though all filmed entertainment emanates from a monolithic institution—one which is allegedly doing our thinking for us.  This is oxymoronic, like saying “Democratic Party Conspiracy,” because just like Democrats couldn’t organize a conspiracy of two, the diverse range of television and motion pictures in the market represent thousands of individuals with a million competing and interrelated ideas, aesthetics, values, egos, agendas, and resources. 

Some of those individuals are brilliant, funny, poignant, serious, etc. and have a talent for expressing themselves in ways that deserve to shape our thinking.  We call this art.  And the way of madness lies in Skalandy’s arrogant implication that we can parse which of these expressions comprise the “better” art in context to his assault on copyright law.  Or to put it another way, I think the world would be better off without reality TV, too, but copyright law has nothing to do with the fact that more people have seen The Apprentice than the oeuvre of Francois Truffaut.

It is unclear whether Skladany means to be imposing a value judgment about what he considers to be the “art” and “non art” among all motion pictures and television; but clearly he harbors such an opinion, or his perspective would make even less sense than his presentation.  He writes, “Reducing copyright’s excessiveness will hurt professional reporters and non-corporate artists to a degree, but, more significantly, it will also level the playing field with corporate entertainment.”  (I’ll let the “hurt to a degree” go for the sake of the larger point.)

By “excessive” copyright law, Skalandy refers solely to the duration of protection—certainly it is the only example he presents—and it is frankly impossible to fathom how shortening copyright’s terms would “level the playing field” and thus enable the “art” of filmed entertainment to better compete against the “non art” of filmed entertainment.  And this is assuming that all “art” content comes from independent creators while all “non art” comes from corporations, and as though no symbiosis exists between these two worlds.

Of course, parsing the “good media” from the “bad media” does not appear to be Skladany’s real goal.  It’s not that we’re watching too much low-quality material in his view, it’s that we’re watching too much, period—spending far too many hours glued to whatever the digital-age version of the boob tube is in lieu of more admirable pursuits like “volunteering” or “going to social events.”   This is where he truly wanders off on thought safari as pertains to copyright law.  I mean, even if we consider his opinion to be valid in this regard, what in blazes does copyright have to do with it?  I was going to watch Jessica Jones tonight, but now that the copyright terms are shorter on that show, I guess I’ll go volunteer at the homeless shelter.  Seriously?

Skladany is free to opine that Americans ought to be engaged in more useful activities than watching stuff on screens, but nothing about his credentials as a law professor, nor anything in this editorial in The Hill, suggests that he has anything fresh to add to that particular conversation, which began shortly after the first TVs were sold.  This is just one of several examples illustrating his lack of intellectual discipline, choosing instead to toss a bunch of haphazard ingredients into an anti-copyright casserole, serve it up half-baked, and expect people to eat it.  Or as my friend Neil Turkewitz stated in his response to yesterday, “…it may be the worst ‘academic’ piece I have ever read.”  

There is much more one could write in response to Skladany’s editorial, not least would be to rebut its underlying theory that weakening copyright would “level the playing field” rather than simply weaken individual authors.  But as he has not provided even a hint of support for this premise, it seems sufficient for now to say that he is simply wrong.