Apologies for our unexplained absence the past couple of weeks! I’ve gotten behind on my proofing/editing* of Chuck’s copyright posts. I guess you could say a certain "Mr. Dog" ate my homework. But more on that some other time. ;) For now, we’re happy to be back, continuing our look at the use of quotations in artwork.
In our last post we discussed the copyrightability of short quotes. This week we’re going to look at the concept of “transformative use” and how it may relate to the use of short quotes in your artwork.
“Transformative use” is a concept that comes up in the “fair use” analysis of copyright infringement cases. In recent years many works have been deemed fair uses based on the conclusion that they are “transformative” of the original. Because transformative use has come to occupy an important role in fair use cases—and yet the term “transformative use” appears nowhere in the fair use statute—we’re going to look at how this analytical tool came into being and what it might mean for artists who’d like to use copyrighted material (like short quotes) in their artworks.
First, a brief overview of fair use
Fair use is a defense to copyright infringement. The secondary user asserts that even if she’s found to have copied, her copying was excused as a fair use.
The Fair Use doctrine is codified in section 107 of the Copyright Act. The preamble contains a non-exclusive list of potentially fair uses, including criticism, comment, news reporting, teaching, scholarship, and research. Its main text provides four distinct factors to consider:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work
As anyone trying to actually apply section 107 quickly learns, on its face this test really doesn’t offer a whole lot of guidance on how to apply it. Open-ended legal tests like this are normally explained through dozens, if not hundreds, of legal opinions in which a kind of consensus develops around the meaning of each factor. Unfortunately, in fair use law, inconsistency rather than consensus has evolved. As David Nimmer, the guru of copyright law, has observed, judges tend to use the factors not as a means to analyze critically, but as pegs on which to hang their prior conclusions as to who should win.
in 1990 a judge in New York, Pierre Leval, published an article entitled, “Toward A Fair Use Standard.” Leval proposed that the way to understand and apply the four factors was to keep in mind the nature and purpose of Copyright Law. That purpose, he argued, was to maximize the availability and growth of new ideas and information to the public at large. According to Leval, the rights given to an author were merely one way to achieve that goal by incentivizing new artistic creation. But the author’s rights must give way when it served the public good.
Leval’s article has been enormously influential. In it, he dives into each of the four factors of the Fair Use doctrine and creates a compelling argument for how they should be weighed against one another. A comprehensive explanation of Leval’s ideas is beyond the scope of this post, but his discussion of the idea of transformative use can help us make better-informed decisions about whether one artist’s use of another’s copyright protected material might be a fair use.
According to Leval, the answer to whether a non-licensed use of copyright protected material can be justified depends on whether that use is transformative. He says: “The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test…. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”
Regarding the amount and substantiality of the portion taken, Leval says that in general the more you take the less likely that the use is fair. And as to the effect on the potential market for the copyright protected work, he says: “By definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties” and goes on to argue, therefore, that this factor should be invoked only when the risk “to the copyright holder's potential market would substantially impair [his or her] incentive to create works for publication.”
How this all works in real life
Transformation has repeatedly provided the fair use justification for one user to freely copy—for commercial purposes—another’s work. The artist Jeff Koons was vindicated for incorporating a copyright protected advertising photograph into a “fine art” collage. The band Green Day was excused for having incorporated Dereck Seltzer’s “Scream Icon” into their stage backdrop for a music tour. Another court allowed the publisher of a book about the Grateful Dead to copy small images of copyright protected concert posters on the ground that the thumbnails were “transformed” from their original purpose of advertising music performances. And in Cariou v. Prince, the court allowed the appropriation artist Richard Prince to incorporate 25 of Patrick Cariou’s photographs into his artworks without permission and sell them for over $10 million. No harm came to Cariou, the court reasoned, because his work occupied a different market niche than Prince’s.
In all these cases the original artists got nothing from the secondary user.
So here’s the catch: it’s pretty obvious that “transformation” can go both ways. On the logic of the Cariou case, any artist could take another artist’s work, modify it and sell copies so long as sale of the transformed work does not substantially diminish the value of the original. Seen in this light, we become wary of the transformative use argument and recommend a lot of soul-searching before testing these waters.
So you may well wonder why we’ve gone to the trouble of presenting all this information, if our conclusion is so… inconclusive. It’s because we see many artists creating images that incorporate short quotations and which we believe transform those quotations into original works of art that are both newly expressive and not competitive in the market of the original. We believe such transformation arguably fulfills the purpose of copyright law: to increase the store of valuable creations available to the public.
In our next post, we’ll take a closer look at these concepts as they apply to images. We know that many of you like to incorporate found materials (e.g. scans or scraps from vintage books, wall paper, gift wrap, advertising, old photos, etc.) in your work and may wonder whether you’re stepping on someone else’s copyright toes. We’ll discuss how fair use and this concept of transformation may apply in those instances as well.
* The copyright posts you read here on F13 are written by Chuck, but I always edit them with our readership in mind. Chuck and I’ve been having an ongoing debate about my editing. Occasionally, his posts are quite a bit longer. I wanted to let you know that he’ll soon be publishing his some of his original drafts on his own site. I’m really excited for this, because I know there will be some of you who’ll love the deeper analysis and more thorough explanations he can provide. Of course, we’ll let you know as soon as those posts are up on his site!
Please remember: The information provided on this blog and throughout our website is intended for general educational purposes only. While some information on this site relates to the law as a topic, it's not intended as a substitute for legal advice. Only a lawyer, selected by you and fully informed of the facts relating to your particular situation, can render legal advice.