Modern concepts of art and creativity pose a challenge for traditional notions of copyright law. Last March, the United States District Court for the Southern District of New York ruled on the legality of appropriation art.

Artist Richard Prince has developed his artistic career by appropriating imagery and adding his own elements, presumably as a form of social commentary. Prince scanned images from plaintiff Patrick Cariou’s Rastafarian photography. The scanned pictures were printed directly onto canvas and were altered by Prince’s addition of new elements. An example of Prince’s work using Cariou’s photography may be seen here.

Prince claims that the images used are merely “raw material” while Cariou’s lawyer maintains that Prince “didn’t transform these photographs, he just used them.” This distinction is important because it goes to the determination of Fair Use, which is the key issue in determining the legality of appropriation art.

The issue of whether Prince’s works are transformative is essential to the existence of fair use; however, this is a subjective determination. The transformative nature of an artwork is analyzed through observations regarding how the artist’s contributions have varied the original. Further, to be transformative, the additions must provide some form of criticism or commentary on the original work.

The United States District Court decided against Prince. His works were found not to be transformative and therefore do not quality as fair use. It seems that the court focused largely on Prince’s inability to explain effectively how his additional elements generated any further meaning or provided any commentary on Cariou’s originals. Furthermore, Prince did not adequately articulate any particular meaning for his appropriated works. This finding emphasizes the subjective element involved in fair use rulings and critics of this decision are quick to point to other cases that are able to find a transformative element without any direct commentary on the original work. In any event, Prince has appealed the District Court’s decision and a ruling will likely be heard early this year.

This appeal should be helpful in clarifying some of the questions surrounding art and copyright in light of modern technological developments. In addition to changing notions of what constitutes art, new technologies are providing new mediums for creativity. The Internet provides users with countless images that they can easily download and save for various creative purposes.

This case also illustrates some of the difficulties that can arise when applying legal principles to the realm of art and creation. It has been argued that what is considered transformative to an artist cannot be reconciled with legal concepts.

Nora Sleeth is a JD candidate at Osgoode Hall Law School.

Posted in Copyright, Fair Dealing, Infringement, US