fair use of copyrighted images in your artwork

MORE about "fair use" this week. This time, we discuss use of copyrighted images, specifically. 

Heads up: NSFW? One of the artworks we share in this post contains a little nudity.


In our last post we looked at transformative use with respect to short quotes in artworks. On the assumption that a picture is worth a thousand words, here we’ll actually look at artworks that incorporate found or appropriated images, and that ended up in court. This will involve the same fair use test—strongly influenced by the single factor of transformation—that we discussed last week.

Cariou v. Prince
The work on the left, below, is an original photo from the plaintiff in the case, Patrick Cariou. On the right is Prince’s work entitled “Graduation.” The court found Prince’s image to not be clearly transformative and told the trial court to submit it to the jury for further proceedings. In other words, the reviewing court didn’t feel that Prince’s fair use argument, particularly the transformative use aspect, was compelling with respect to this artwork.

images by Patrick Cariou (left) and Richard Prince (right) / source: http://www.artlawreport.com/files/2011/12/Prince-Gagosian-Appeals-Brief-B1363742.pdf

images by Patrick Cariou (left) and Richard Prince (right) / source: http://www.artlawreport.com/files/2011/12/Prince-Gagosian-Appeals-Brief-B1363742.pdf

On the other hand, the same court found Prince's work “Naked Confessions” to be clearly transformative and a fair use. Prince’s lawyers explained the transformative use as follows:

Naked Confessions … makes minimal use of Cariou’s photographs. Prince combined three images of nude female models drawn from his de Kooning paintings together with an image of a Rastafarian male from Yes Rasta. Prince added an electric guitar to the Rastafarian as a reference to pop culture and painted enlarged hands and feet on the figures. As in many of the works, the Rastafarian image is partly painted over, creating a painting that bears little resemblance to Cariou’s original. This portrayal of a “rock star” Rastafarian reggae musician is sharply different from Cariou’s depiction of a noble Rastafarian.

As you can see, in “Naked Confessions” (below) the amount of work taken from Cariou as a percentage of Prince’s work is much smaller than in “Graduation.”

image by Richard Prince, appropriating photograph by Patrick Cariou / source: http://www.artlawreport.com/files/2011/12/Prince-Gagosian-Appeals-Brief-B1363742.pdf

image by Richard Prince, appropriating photograph by Patrick Cariou / source: http://www.artlawreport.com/files/2011/12/Prince-Gagosian-Appeals-Brief-B1363742.pdf

Finally, Prince's work entitled “Canal Zone 2008” (below) was, like “Graduation,” deemed insufficiently transformative and possibly not fair use. It was likewise sent back to the lower court for further proceedings. Why this one didn’t fly makes sense. It’s almost all Cariou’s work—a collage constructed of parts of various Cariou photographs, including the same guitar-holding man from “Graduation.” It’s worth noting that the court might have, but did not, credit Prince’s artfulness in his choices and assembling of Cariou’s various photos.

image by Richard Prince, appropriating photographs by Patrick Cariou / source: http://www.artlawreport.com/files/2011/12/Prince-Gagosian-Appeals-Brief-B1363742.pdf

image by Richard Prince, appropriating photographs by Patrick Cariou / source: http://www.artlawreport.com/files/2011/12/Prince-Gagosian-Appeals-Brief-B1363742.pdf

Morris v. Young
In this case, an artist named Russell Young pulled an image of the Sex Pistols off the Internet and used it to make his own artworks. Russell testified that he didn’t even think about the copyright status of the photo at the time, particularly as it had no copyright notice on it. Turns out the photo was owned by the photographer Dennis Morris, who expressed his unhappiness with Young’s work in the form of a lawsuit. Here’s Morris’s photograph:

photograph by Dennis Morris / image source: image source http://www.thegiant.org/wiki/index.php/File:Sex_Pistols_on_stage.jpg,

photograph by Dennis Morris / image source: image source http://www.thegiant.org/wiki/index.php/File:Sex_Pistols_on_stage.jpg,

We’re going to look at two of Young’s works. The first is “Red Sex Pistols.”

Morris v. Young / image source http://expresswrittendissent.com/2013/01/29/sid-johnny/

Morris v. Young / image source http://expresswrittendissent.com/2013/01/29/sid-johnny/

The court was unimpressed with this one, finding it not a fair use. It described “Red Sex Pistols,” and another similar work not depicted here, as “little more than reproductions… with minor variations.”

But another work, entitled “White Riot + Sex Pistols,” was arguably transformative. This one, the court said, “incorporates images beyond the band itself and arranges them such that the composition may convey a new message, meaning, or purpose beyond that of the subject photograph.”

Russell Young "White Riot + Sex Pistols" / source: http://illillill.tumblr.com/post/683935405/russell-young-white-riot-sex-pistols-at

Russell Young "White Riot + Sex Pistols" / source: http://illillill.tumblr.com/post/683935405/russell-young-white-riot-sex-pistols-at

Seltzer v. Green Day
We wrote about this case last week. It’s the one where the band Green Day put Dereck Seltzer’s “Scream Icon” into their stage backdrop for their music tour.
First, Seltzer’s Scream Icon:

Dereck Seltzer "Scream Icon" / source: http://hauntedeuth.com/Art-Work-Theft-by-GREEN-DAY

Dereck Seltzer "Scream Icon" / source: http://hauntedeuth.com/Art-Work-Theft-by-GREEN-DAY

And Green Day’s concert stage decoration:

Green Day stage set with appropriated "Scream Icon" / source: http://hauntedeuth.com/Art-Work-Theft-by-GREEN-DAY

Green Day stage set with appropriated "Scream Icon" / source: http://hauntedeuth.com/Art-Work-Theft-by-GREEN-DAY

Here the court found transformation via context (a concert stage) as well as the red cross painted across Seltzer’s work. The judges also noted that the images served different markets (street art versus music event).

Blanch v. Koons
On the left (below) is the photographer Andrea Blanch’s Gucci sandals advertising photograph, originally appearing in Allure magazine, and on the right is Jeff Koons’s artwork “Niagara.” Again, here the court found fair use, mostly on the basis of transformation. As with some of the cases above, the transformative work had a fair amount of content that was not taken from the artist asserting copyright infringement.  

Left, the Andrea Blanch photo that appeared in the August 2000 issue of Allure, right, Jeff Koons, "Niagara" / source: http://hyperallergic.com/23589/judging-appropriation-art/

Left, the Andrea Blanch photo that appeared in the August 2000 issue of Allure, right, Jeff Koons, "Niagara" / source: http://hyperallergic.com/23589/judging-appropriation-art/

What might all this mean for you?
What can you take away from these examples? We offer these very general observations:

  • The less the appropriated image makes up the new work, the more likely it may be considered a fair use.
  • If the work consists chiefly of appropriated images (like Koon’s “Niagara”), it may be more likely to be considered fair use if the sources are varied.
  • Does the work have a different “purpose” from the original? For example, according to Koons, "Niagara" commented on the relationship between media culture and human appetites for food, sex, and recreation—a different purpose than Blanch’s photo, which was meant to entice those appetites. This argument was persuasive to the court.
  • Using an appropriated image for a commercial purpose isn’t necessarily a bar to fair use. Courts will take that into account, but if the appropriated use is highly transformative, and is not going to significantly harm the market for the original work, a court might disregard or downplay commercial use of the appropriating work.

Postscript from Betsy

If you're an artist who feels her work has been unfairly/illegally appropriated, you may be wondering whether it's worth taking legal action. We hope the examples discussed above will help you understand how similar matters have been viewed by the courts. In a word, it's complicated. Consider consulting an intellectual property attorney who's well-versed in these issues. There are often relatively simple and inexpensive actions you can take to resolve the matter to your satisfaction without having to go to court.

Are you an artist who's interested in appropriating or referencing others' images for your own work (e.g. as in the collage-style works examined above, or closely basing a painting on a photograph you've found online)? If so, carefully consider the position of the other artist(s) or rights holder(s) before publicly sharing or selling such work—what would you want, if you were in his or her position? Even if you believe your use is most likely fair, consider asking permission.

As an experiment, I set myself a little challenge to create this week’s post image using copyrighted materials in a way that I feel constitutes fair use, and where asking permission would be quite time-consuming and possibly even fruitless. Here’s a look at my sources.

Both the golden buddha and the blue sky came from this 1958 children’s encyclopedia (Golden Press ostensibly licensed both images from the original rights holders).

The rose was swiped from this Lancome ad, found on the back of an old magazine (a 2001 issue of Real Simple, if my memory serves).

Given what Chuck has explained in today’s post, do you think I pass the tests? Even if I could win an argument in court, do you think it would be ethical of me to sell prints of the image? It's an interesting and complicated issue for artists. We'd love to hear your thoughts!
~Betsy


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.