The Legal Framework of Appropriation in the Art

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The Legal Framework of Appropriation in the Art World April 30, 2009 Appropriation in

The Legal Framework of Appropriation in the Art World April 30, 2009 Appropriation in Contemporary Art and Culture Prof. Michael Lobel George Gottlieb, Esq. Lesley Matty, Esq. Gottlieb, Rackman & Reisman, P. C. Intellectual Property Attorneys

Copyright Basics: The “Copyright Clause” “To promote the progress of science and useful arts,

Copyright Basics: The “Copyright Clause” “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. ” U. S. Constitution Article I, Section 8, Clause 8

Copyright Basics: The “Copyright Clause” What constitutes a “writing”? Creative works fixed in a

Copyright Basics: The “Copyright Clause” What constitutes a “writing”? Creative works fixed in a “tangible medium of expression” -Text -Film -Sculpture -Photography -Maps -Paintings -Jewelry

Copyright Basics l Copyright does not protect “ideas”, but rather the expression of an

Copyright Basics l Copyright does not protect “ideas”, but rather the expression of an idea; – l l The “idea” for a movie is not protectable by copyright, but the written treatment, script, or audiovisual work is protectable The expression must be original and contain at least a “modicum of creativity” (very low threshold); Copyright applies to works of fine art as well as “articles of manufacture, ” such as lamps, coasters, handbags and beach towels; Copyright attaches upon creation; Copyrights exist separate and apart from the physical object that embodies the creative work;

Copyright Basics: Registration l l l Copyright registrations are issued by the U. S.

Copyright Basics: Registration l l l Copyright registrations are issued by the U. S. Copyright Office at the Library of Congress www. copyright. gov. Applications may be filed on paper or electronically via the Copyright Office website; Examination focuses solely on requisite creativity; Registration typically issues 6 -12 months after filing; Registration creates a presumption of validity; Registration supports ownership, date of creation, and enforcement actions.

Copyright Basics: Exclusive Rights 17 U. S. C. Section 106 “[T]he owner of copyright.

Copyright Basics: Exclusive Rights 17 U. S. C. Section 106 “[T]he owner of copyright. . . has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies. . . of the copyrighted work to the public by sale or other transfer or ownership, or by rental, lease, or lending;

Copyright Basics: Exclusive Rights (4) in the case of literary, musical, dramatic and choreographic

Copyright Basics: Exclusive Rights (4) in the case of literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, . . . to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Copyright Basics: Transfer of Exclusive Rights l Authors may transfer some or all of

Copyright Basics: Transfer of Exclusive Rights l Authors may transfer some or all of their exclusive rights to a third party, typically by means of: – – l l Assignment Licensing Agreement Authors may limit the nature and extent of third party use through such transactions; Authors should be aware of “blanket” transfers – an author’s exclusive rights are valuable and broad in scope; an author may permit a third party to display his work, but that does mean that the same party is also authorized to reproduce his work.

Copyright Basics: Copyright Infringement How does a Court determine whether a copyrighted work has

Copyright Basics: Copyright Infringement How does a Court determine whether a copyrighted work has been appropriated? Two part test: (1) Access (2) Substantial Similarity Appropriation equals infringement.

Copyright Basics: The Defense of Fair Use Do all unauthorized uses of a copyrighted

Copyright Basics: The Defense of Fair Use Do all unauthorized uses of a copyrighted work amount to infringement? NO. 17 U. S. C. Section 107 “[T]he fair use of a copyrighted work, including such use by reproduction in copies. . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” (emphasis added).

Copyright Basics: The Defense of Fair Use 17 U. S. C. Section 107 (continued)

Copyright Basics: The Defense of Fair Use 17 U. S. C. Section 107 (continued) “In determining whether the use made of a work in a particular case is a fair use, the factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work. ”

The Doctrine/Defense of Fair Use: Rogers v. Koons, 960 F. 2 d 301 (2

The Doctrine/Defense of Fair Use: Rogers v. Koons, 960 F. 2 d 301 (2 d Cir. 1992) The Plaintiff Art Rogers, a photographer of some note, created a photo of a man and a woman holding 8 puppies. The photo became part of his catalogue of works and he licensed his work to a company that sold the photo in the form of postcards.

The Doctrine/Defense of Fair Use: Rogers v. Koons

The Doctrine/Defense of Fair Use: Rogers v. Koons

The Doctrine/Defense of Fair Use: Rogers v. Koons The Defendant The artist Jeff Koons

The Doctrine/Defense of Fair Use: Rogers v. Koons The Defendant The artist Jeff Koons saw and purchased one of Rogers’ licensed postcards. He tore off the copyright notice on the card and told an Italian studio he was working with to make the sculpture “Just Like Photo”. The end result was a series of porcelain sculptures that Koons called “Banality Show”. Koons eventually earned several hundred thousand dollars from his sales of the sculptures.

The Doctrine/Defense of Fair Use: Rogers v. Koons

The Doctrine/Defense of Fair Use: Rogers v. Koons

The Doctrine/Defense of Fair Use: Rogers v. Koons The Case Rogers sues Koons for

The Doctrine/Defense of Fair Use: Rogers v. Koons The Case Rogers sues Koons for copyright infringement. Koons claims fair use under a parody theory, since the sculptures were part of his “Banality Series. ” He argued that his sculpture was a satire of society at large, and his work was in the tradition of Marcel Duchamp, who first incorporated readymades into works of art.

The Doctrine/Defense of Fair Use: Rogers v. Koons

The Doctrine/Defense of Fair Use: Rogers v. Koons

The Doctrine/Defense of Fair Use: Rogers v. Koons The Decision The court disagreed with

The Doctrine/Defense of Fair Use: Rogers v. Koons The Decision The court disagreed with Koons, claiming that the sculptures did not specifically parody Rogers’ work, even if it was a parody of modern society. To be a true parody, Koons should have identified the original Rogers work. The court noted that while the original was a black and white photograph and the Koons copy was a three-dimensional sculpture, it believed that the widespread notoriety of the sculpture might hurt sales of the photo. The court also noted that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. The court noted that it would be appropriate to award Rogers the amount of his lost licensing fee plus any profits Koons made from the sales of the sculptures.

The Doctrine/Defense of Fair Use: Blanch v. Koons, 467 F. 3 d 244 (2

The Doctrine/Defense of Fair Use: Blanch v. Koons, 467 F. 3 d 244 (2 d Cir. 2006) The Plaintiff Andrea Blanch, an accomplished professional photographer, had her work “Silk sandals by Gucci” published in Allure magazine. The photo showed a woman’s legs and feet, adorned with bronze nail polish and glittery Gucci sandals, positioned diagonally upwardly and resting on a man’s lap in an airplane cabin.

The Doctrine/Defense of Fair Use: Blanch v. Koons

The Doctrine/Defense of Fair Use: Blanch v. Koons

The Doctrine/Defense of Fair Use: Blanch v. Koons The Defendant Jeff Koons used portions

The Doctrine/Defense of Fair Use: Blanch v. Koons The Defendant Jeff Koons used portions of Blanch’s photo in his painting, “Niagara”, which was part of his “Easyfun-Ethereal” series, commissioned by Deutsche Bank in collaboration with Guggenheim. Koons copied the legs and feet, but did not use the man’s lap or the airplane cabin, and he dangled the woman’s legs downwardly, rather than upwardly as in the Blanch original. The copied legs were among four pairs of legs. The painting included many other pop-culture images.

The Doctrine/Defense of Fair Use: Blanch v. Koons

The Doctrine/Defense of Fair Use: Blanch v. Koons

The Doctrine/Defense of Fair Use: Blanch v. Koons The Case Blanch sues Koons for

The Doctrine/Defense of Fair Use: Blanch v. Koons The Case Blanch sues Koons for copyright infringement. Koons claims fair use based on the non-commercial and transformative nature of the use. As stated in the decision, Koons said that with “Niagara”: “he intended to ‘comment on the ways in which some of our most basic appetites -- for food, play, and sex -- are mediated by popular images. ’ Koons Aff. , dated June 10, 2005, at P 10. ‘By recontextualizing these fragments as I do, I try to compel the viewer to break out of the conventional way of experiencing a particular appetite as mediated by mass media. ’” 467 F. 3 d 244, 247 (2 d Cir. 2006)

The Doctrine/Defense of Fair Use: Blanch v. Koons

The Doctrine/Defense of Fair Use: Blanch v. Koons

The Doctrine/Defense of Fair Use: Blanch v. Koons The Decision Unlike Rogers v. Koons

The Doctrine/Defense of Fair Use: Blanch v. Koons The Decision Unlike Rogers v. Koons above, which was considered a literal reproduction, the court viewed “Niagara” as a transformative use because it commented upon the use of fashion imagery in consumer culture. In addition, Koon’s use of the photograph did not cause harm to the potential market for or value of the copyrighted work.

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount Pictures, 137 F. 3 d 109

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount Pictures, 137 F. 3 d 109 (2 d Cir. 1998) The Plaintiff The well-known art and commercial photographer, Annie Leibovitz, photographed Demi Moore for the cover of Vanity Fair. The photo showed Demi, who was noticeably pregnant at the time, nude, in profile, with a serious face, with her right hand arm covering her breasts and her left hand supporting her distended stomach. That issue of Vanity Fair was a best-seller for the magazine.

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount The Defendant To advertise its forthcoming

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount The Defendant To advertise its forthcoming comedy, “Naked Gun 331/3”, staring the actor Leslie Nielsen, Paramount Pictures decided to commission a photo based upon Leibowitz’ Vanity Fair cover. The movie poster featured a pregnant woman in the identical pose as Demi Moore, with similar layout and lighting. The only significant change was to superimpose Nielsen’s face on the photo, but with a smirk rather than a serious face.

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount The Case Leibowitz sues Paramount for

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount The Case Leibowitz sues Paramount for copyright infringement. Paramount claims fair use under the parody theory, as did Jeff Koons (unsuccessfully) in the “puppies” case.

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount The Decision The court found that

The Doctrine/Defense of Fair Use: Leibowitz v. Paramount The Decision The court found that the Paramount photo was protected from infringement by the fair use defense, in that it was a transformative work, since it added something “new” and it was a parody since it commented on the seriousness and pretentiousness of the original.

The Doctrine/Defense of Fair Use: Fairey v. AP Andy Warhol, “Mao” 1972 Andy Warhol,

The Doctrine/Defense of Fair Use: Fairey v. AP Andy Warhol, “Mao” 1972 Andy Warhol, “Vote Mc. Govern” 1972

The Doctrine/Defense of Fair Use: Fairey v. AP

The Doctrine/Defense of Fair Use: Fairey v. AP

The Doctrine/Defense of Fair Use: Fairey v. AP The Case The artist Shepard Fairey

The Doctrine/Defense of Fair Use: Fairey v. AP The Case The artist Shepard Fairey created a series of well-known posters showing Barack Obama’s face with the words “Hope” and “Progress” below it. The Fairey poster was based closely on a photo taken by the photographer Mannie Garcia. The A. P. claimed it owned the copyright in the photo and said that it had made every effort to license the photo to Fairey for his use. When A. P. protested, Fairey brought a “declaratory judgment” case in federal court, asking the court to declare that he had not infringed the A. P. copyright and that his work constitutes “fair use”.

The Doctrine/Defense of Fair Use: Fairey v. AP “The Associated Press is disappointed by

The Doctrine/Defense of Fair Use: Fairey v. AP “The Associated Press is disappointed by the surprise filing by Shepard Fairey and his company, and by Mr. Fairey's failure to recognize the rights of photographers in their works. ” “AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required permission from AP. ”

The Doctrine/Defense of Fair Use: Fairey v. AP “Most importantly, I am fighting the

The Doctrine/Defense of Fair Use: Fairey v. AP “Most importantly, I am fighting the AP to protect the rights of all artists, especially those with a desire to make art with social commentary. ” “My Obama poster variations of ‘HOPE’ and ‘PROGRESS’ were obviously not intended to report the news. I created them generate support for Obama; the point was to capture and synthesize the qualities that make him a leader. . . it’s a political statement. ”

The Doctrine/Defense of Fair Use: Fairey v. AP

The Doctrine/Defense of Fair Use: Fairey v. AP

The Doctrine/Defense of Fair Use: Fairey v. AP

The Doctrine/Defense of Fair Use: Fairey v. AP

The Doctrine/Defense of Fair Use: Fairey v. AP Fair use? You decide.

The Doctrine/Defense of Fair Use: Fairey v. AP Fair use? You decide.

Copyright Resources U. S. Copyright Office – www. copyright. gov The Copyright Society -

Copyright Resources U. S. Copyright Office – www. copyright. gov The Copyright Society - www. csusa. org The Center for Internet and Society at Stanford University, The Fair Use Project http: //cyberlaw. stanford. edu/fair-use-project Copyright Clearance Center – www. copyright. com

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