An Intentionalist Proposal to Reform the Transformative Use Doctrine

• Publication year: 2022

An Intentionalist Proposal to Reform the Transformative Use Doctrine

Madelyn Chen
Harvard University School of Law, jwt74222@uga.edu

An Intentionalist Proposal to Reform the Transformative Use Doctrine

Cover Page Footnote

Harvard Law School, J.D. 2022. Thanks to Professor Rebecca Tushnet for her suggestions and comments.

This article is available in Journal of Intellectual Property Law: https://digitalcommons.law.uga.edu/jipl/vol30/iss1/3

[Page 55]

Chen: An Intentional Approach to Fair Use

AN INTENTIONALIST PROPOSAL TO REFORM THE TRANSFORMATIVE USE DOCTRINE

Madeyn Chen^*

[Page 56]

TABLE OF CONTENTS

I. INTRODUCTION...............................................................................................57

II. FAIR USE AND TRANSFORMATIVE USE.......................................................62

III. CURRENT PROBLEMS WITH TRANSFORMATIVE USE................................75

a. TRANSFORMATIVE USE IS UNEQUALLY DEFINED AND WEIGHTED WITHIN AND ACROSS COURTS..............................................................75
b. ALLOWING JUDGES TO MAKE AESTHETIC DETERMINATIONS VIOLATES AESTHETIC NEUTRALITY...................................................79
C. COMPETING AESTHETIC THEORIES DEFINE COURTS' TRANSFORMATIVE USE ANALYSES......................................................82

1. Formalism.........................................................................................84
2. Reader-Response..............................................................................86
3. Intentionalism...................................................................................89

IV. AN INTENTIONALIST PROPOSAL FOR TRANSFORMATIVE USE...............92

A. ARGUMENTS IN FAVOR OF AN INTENTIONALIST PROPOSAL FOR TRANSFORMATIVE USE........................................................................104
B. ADDRESSING ARGUMENTS AGAINST AN INTENTIONALIST PROPOSAL FOR TRANSFORMATIVE USE............................................107

V. CONCLUSION.................................................................................................110

[Page 57]

I. INTRODUCTION

In creating his 'Canal Zone' series, the artist Richard Prince tore images from photographer Patrick Cariou's 'Yes Rasta' book and incorporated them, with varying degrees of alteration, into paintings and collages.¹ Of the thirty artworks in Prince's series, twenty-nine featured partial or entire pictures from 'Yes Rasta.'² Cariou subsequently sued for copyright infringement.³ In his deposition, Prince testified that he was not "trying to create anything with a new meaning or a new message."⁴ Furthermore, Prince stated that he did not "really have a message" or any interest in the original intent of Cariou's photographs.⁵

This testimony proved fatal in the district court. In evaluating Prince's fair use defense, the district court noted that Prince's paintings could be transformative "only to the extent that they comment" on Cariou's photos.⁶ To the district court, Prince's testimony revealed his lack of intent to comment on Cariou's work and, therefore, his lack of transformative intent.⁷ The court concluded that Prince's work did not constitute transformative use.⁸ After analyzing the remaining fair use factors and finding that none favored Prince, the court ordered the destruction of Prince's infringing work.⁹

On appeal, the Second Circuit overruled the district court.¹⁰ The Second Circuit held that there was "no requirement that a work comment on the original

[Page 58]

or its author in order to be considered transformative . . . ."¹¹ Ultimately, the court found that Prince's lack of testimony defending his work as transformative was not dispositive to his fair use defense.¹² The essential inquiry was "how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work."¹³ The court then assumed the role of the reasonable observer.¹⁴ Evaluating Prince's thirty artworks side-by-side with Cariou's photographs, the court concluded that twenty-five of the artworks were "transformative as a matter of law" because those artworks "employ new aesthetics with creative and communicative results distinct from Cariou's."¹⁵ Those twenty-five artworks were ultimately found to constitute fair use.¹⁶ The Second Circuit was unable to conclude whether five of Prince's artworks were transformative or otherwise fair uses and remanded that determination to the district court.¹⁷

The disparate treatment of Prince's stated intent by the district court and Second Circuit illustrates the current tension in caselaw and scholarship between the intentionalism and reader-response aesthetic theories of transformative use.¹⁸ Aesthetic theories help to describe and interpret art.¹⁹ Intentionalism holds that the artist's intention in creating the work is critical to understanding the work's meaning, while reader-response theory holds that the audience's view of the work is critical to its meaning.²⁰ While judges do not articulate these theories in

[Page 59]

analyzing cases, "the analytical premises of copyright opinions are practically identical to those of major aesthetic theories."²¹ In Cariou, intentionalism is present in the district court's heavy weighting of Prince's testimony in its finding of no transformative use.²² In contrast, reader-response theory appears in the Second Circuit's emphasis on the "reasonable observer" inquiry over Prince's testimony in its finding of transformative use.²³ Cariou represents the Second Circuit's shift from its earlier focus on intentionalism to an unclear focus on reader-response.²⁴

This Article argues that this shift is undesirable because intentionalism is preferable over other frameworks for evaluating transformative use. Currently, courts implicitly use different aesthetic theories in analyzing transformative use.²⁵ The inconsistencies between these theories within and across circuits breed a confusing lack of uniformity that fails to guide judges and defendants alike.²⁶ A single interpretive theory for transformative use should be adopted by courts. This Article argues that a focus on intentionalism is the most proper theory. A

[Page 60]

common foil to intentionalism is the reader-response theory, the shortcomings of which are exemplified by the Second Circuit's decision in Cariou.²⁷ In adopting the reader-response centric "reasonable observer," the court failed to define the standard, instead treating itself as the "reasonable observer" with insight from the art world.²⁸ Many other courts that followed the Second Circuit's decision in Cariou have likewise treated themselves as the "reasonable observer," thus "resolving the issue without resort[ing] to any evidence beyond the works themselves."²⁹ Treating the judge as a reader who can make visual interpretations about artwork is problematic because it violates the principle of aesthetic neutrality, whereby judges are cautioned against making aesthetic determinations.³⁰ Transformative use requires determining any new expression, meaning, or message that the secondary work adds to the original, which often involves ascertaining the secondary artist's intended or perceived purpose in creating the work and whether this purpose merits a finding of transformative use that often leads to a finding of fair use.³¹ Whether the reader interpreting the artwork is a judge or a lay person, reader-response theory makes judgments unpredictable because of individualized aesthetic tastes, theories, and

[Page 61]

interpretations.³² This contributes to the general confusion around the role of the artist's intent in the transformative use analysis.³³

This Article proceeds in five parts. Part I provides background on the fair use doctrine, transformative use, and relevant case law. These historical developments set up courts' differing approaches in analyzing transformative use and the interaction between transformativeness analyses and aesthetic theories. Part II illustrates current issues with applying transformative use, including its lack of predictability, collision with the principle of aesthetic neutrality, and the competing aesthetic theories underlying cases. Exposing the shortcomings of the status quo shows the need for judicial change and uniformity in this area.

Part III introduces a proposal for courts to adopt an intentionalist framework to guide transformative use analyses. Under this new proposal, courts would admit evidence of the secondary artist's transformative intent in using the primary artist's work. Courts would then survey art experts, the artwork's audience, or both, to determine whether some viewers perceive the artist's intention as compatible with the artwork.³⁴ Both inquiries align with a moderate intentionalism theory, under which the correct interpretation of an artwork is the meaning of the artwork that is compatible with the artist's actual intention,³⁵ and this compatibility is determined by the audience through examining the artwork and other evidence of the artist's intent.³⁶ Finally, courts would analyze the author's evidence of intention, the audience's determination of the intent's

[Page 62]

compatibility with the work, and any opposing evidence offered under a preponderance of evidence standard. This would relegate judges to a more appropriate role as arbiters of evidence instead of reasonable observers imposing discretionary aesthetic judgments onto artworks. Part IV advances arguments in favor of my proposed intentionalist framework. Part V addresses arguments against this Article's proposal and an intentionalist approach in general. Overall, this Article aims to explain why intentionalism is more helpful than other aesthetic theories in guiding courts' transformative use judgments and making such judgments more transparent and uniform.

II. FAIR USE AND TRANSFORMATIVE USE

American copyright law prohibits infringement of the exclusive rights granted to copyright holders.³⁷ The fair use...