Fair Use may be turning into a legal refuge primarily for “rich and fabulous” artists, according to a recent University of Chicago Law Review article by two Stanford scholars. They reached that conclusion by analyzing Patrick Cariou v. Richard Prince and other copyright disputes between artists over the past decade.
“This shift in fair use has predominantly protected big name defendants who appropriate from small name artists,” Andrew Gilden, one of the authors, told American Public Media’s Marketplace program on Monday.
The Marketplace report, by Sabri Ben-Achour, went on to say that in visual art copyright cases over the past decade, the wealthier artist has usually prevailed. “They’ve won defending against claims they copied someone else’s work, and they’ve won pursuing others for copying their work,” Ben-Achour reported.
Gilden and his co-author, Timothy Greene, argue in their law review article that wealthy artists prevail in part because of the high cost of defending an infringement claim on fair use grounds–something many work-a-day artists can’t afford. But wealthy artists also prevail, Gilden and Greene argue, because there is a cultural presumption that works are “transformative” when they appropriate material from unknown artists, then sell for high prices to an exclusive market. (Whether a disputed work “transforms” the original work is a primary test for a finding of fair use.)
Cariou v. Prince, for instance, was a dispute over a series of paintings and collages by Prince that appropriated images from Cariou’s book Yes, Rasta without permission. Most of Prince’s works eventually sold, fetching a total of $10.4 million. Prince successfully fended off Cariou’s copyright infringement claim on fair use grounds, testifying in the process that Cariou’s work was just raw material for his own work.
But the argument for transformation doesn’t work in the other direction, i.e., when unknown artists appropriate from better-known artists and then argue that they’ve created a transformative work. That’s because works by famous artists just don’t seem like raw material to juries, judges or average citizens.
The illustrative case Gilden and Greene analyze in their article is Salinger v. Colting. J. D. Salinger sued Fredrik Colting, a little-known author, over Colting’s novel called 60 Years Later: Coming Through the Rye. Colting borrowed story lines and characters from Salinger’s Catcher in the Rye, pretty much doing what Prince did when he appropriated Cariou’s work, Gilden and Greene suggest. But unlike Prince, Colting lost his case. (Both cases were finally adjudicated in the US Court of Appeals for the Second Circuit, which is in New York.)
As Gilden and Greene put it in their article, “Cariou makes fair use fairer for some, but there’s a real risk its virtues won’t be available to all.”
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