Profiting from Fair Use

My office has recently fielded a flood of questions about Fair Use across a range of contexts – using a recording of a documentary subject using software on her computer; posting thumbnails on a website; sharing recipes and ingredient lists; and, most recently, artists asking whether the art they share on social media platforms is vulnerable to being used without permission.

The last of these have been inspired by a recent gallery exhibition in which well-known appropriation artist Richard Prince reproduced and enlarged Instagram posts – along with his final comment on each post.  Some of these reproductions reportedly sold for $90,000.  The individuals whose images and posts were used were neither asked permission nor compensated. Unlike previous works in which Prince took another artist’s photographs and drastically modified them, in this series

Prince seems to have made no additions or alterations to the Instagram posts. Some important questions arise: 1) Can straight reproduction be art? 2) What qualifies as a ‘fair Use’ leaving the owner without recourse? 3) Is it fair use even when the art is being sold for $90k a pop?

1) Can straight reproduction be art?

This post is certainly not the place to go into such a deep question, nor would I pretend to have the expertise to tackle this question with any authority. From a purely practical perspective, it’s folly to argue that any subject or work could never be art. The world has seen too many examples in which disregarded artists and their works were later recognized as brilliant and revolutionary. Nor does all art have to be good – bad art should still be protected as art. In this case, I would recognize that placing an item in an unexpected context, and the thoughts and discussion that arrangement stimulates, should qualify as a form of art.

2) What qualifies as a “Fair Use”?

I’ve previously discussed fair use in the context of libraries making copies. For better or worse, fair use is not a black & white issue. Briefly, under certain circumstances, fair use provides an exception to the rule, allowing you to copy a protected work without permission or compensation. The law on fair use (§107 of the Copyright Law) is really more of an outline guiding each challenge on a case-by-case basis. When a fair use is claimed, a court considers the following four factors:

  1. What is the purpose and character of the use?
  2. Is the nature of the content being copied creative, factual, or somehow intended for duplication by others?
  3. Is a large proportion or the most important portion of the work being copied?
  4. Would the copying compete with the copyright owner’s business?

No single factor is determinative. Even though Prince copied the entire Instagram photo (factor #3), the other factors would likely push the collection toward finding fair use: artful stimulation of discussion despite a price tag (#1), the public nature of the images and comments akin to fact/news (#2), unlikely commercial market for the photos/posts in the absence of Prince’s use (#4). When Prince was sued a few years ago for an exhibition that included both modified photographs and unadulterated copies from a single photographer, the US Court of Appeals found that most of the photographs in Prince’s series satisfied fair use because they were altered sufficiently to produce “an entirely different aesthetic” from the original work.   With respect to five photographs that were minimally altered, the Court ordered that these be re-examined under the four fair use factors. (Ultimately, the parties settled anyway.) In my opinion, courts should avoid opining about how much change qualifies as art, and should especially steer clear of judging parts of a collection to be more art-ful than other parts.  As suggested above, it’s easy enough to find ‘art’ in context – whether that be in juxtaposition, in unexpected placement or otherwise – without any direct modification to the subject.

3) Does making art for sale deprive it of the Fair Use exception?

Although the work’s ‘commercial’ nature is addressed by fair use factor #1, it does not necessarily destroy a claim of fair use. It’s naive to think art is made for art’s sake, or that there is anything unprincipled about an artist wanting to make a comfortable living by selling their art. Even where art is made specifically for sale, it is nonetheless an expression.The hope of the sale should not eliminate the spirit of the art. Consider the many recognized masterpieces that now regularly sell for millions of dollars – the price tags make them no less significant a contribution to society. Here, Prince is a recognized artist who can expect his works to sell well ($90,000 well, in this case). That monetary valuation of his art should not diminish its esthetic valuation.

Fair use analysis would be significantly different where the copying was used in commercial advertising or with the intent of mass reproduction for sale. But that is not the case here.

Take Away

The debate stimulated by Prince’s exhibition is probably evidence enough that it is art as commentary. The debate about the commercialization of art is not a new one, but it is one that lawyers and judges should leave to critics and audiences. In terms of my layman’s perspective on the quality of the art as fair use, I’ll agree with commentator Xeni Jardin who said, “Prince’s biggest (and perhaps only real) crime is that his latest show is terribly boring.” And, although the photos may have had minimal value before, I hope more of the Instagram users affected take this opportunity to profit themselves, like this one did albeit at a lower price.

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