Appropriative Fair Use: a Suggested Approach

• Publication year: 2021

99 Nebraska L. Rev. 697. APPROPRIATIVE FAIR USE: A SUGGESTED APPROACH

APPROPRIATIVE FAIR USE: A SUGGESTED APPROACH

Nathan D. Clark ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 697

II. The Fair Use Doctrine and Campbell .................. 699

III. Appropriative Use in Art History ...................... 704
A. Appropriation as a Strategy in Art History ......... 704
B. The Necessity of Borrowing for Appropriative Use. . 707

IV. What Is Appropriation Art and What Is It Entitled to Take? A Viewer-Based Approach ...................... 709
A. Which Works May Claim Appropriative Fair Use? . 711
B. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole ...... 713

V. A Summary of Appropriative Fair Use and Its
Limitation by the Section 107 Factors ................. 715
A. The Purpose and Character of the Use ............. 716
B. The Nature of the Copyrighted Work .............. 716
C. The Effect of the Use upon the Potential Market for or Value of the Copyrighted Work ................. 717

VI. The Fair Use Doctrine, Parody, and Appropriation Art . 718

Rogers v. Koons Blanch v. Koons Cariou v. Prince

VII. Application of the Appropriative Fair Use Defense ..... 724

VIII. Conclusion ............................................ 726

I. INTRODUCTION

Commentators have pointed out that the notion of authorship enshrined in copyright law is at odds with the prevalence of copying in contemporary art. ^[1] Copyright law envisions a creator who beholds an

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idea, purposes its expression, and fixes it in a work. While this approximation of the creative process may, on the whole, advance the Copyright Act's purpose of incentivizing the progression of the arts, it also vastly simplifies that process. Special consideration should be given to modes of artistic production that this model fails to capture to ensure copyright law does not fail to reap its value in social benefit and artistic progress. Congress and the courts have given such consideration through the fair use affirmative defense. ^[2] This Article addresses the application of that defense to a vein of contemporary art which makes it a point to take and re-present preexisting works-appropriation art.

A number of scholars have addressed the manner in which appropriation art should be evaluated under the fair use defense and, in particular, how a court is to ascertain whether a piece of appropriation art is "transformative," a central component of the fair use inquiry. Given the many valuable insights already presented on how fair use could be remade or conceptualized in view of artistic practice, this Article seeks merely to suggest an approach that advocates and judges could realistically put into practice. ^[3] The components of this approach are: (1) a threshold inquiry into whether the work in question is appropriation art, in which event it is transformative as a matter of law and entitled to a categorical approach of the fair use inquiry; and (2) a determination of how much of the borrowed work the defendant is entitled to use under a three-tiered approach.

Part II sets forth the fair use doctrine and its application to parody under Campbell v. Acuff-Rose Music, Inc. Part III argues that appropriation art as an artistic strategy (for want of a better term, "appro-priative use") should be viewed as a distinct category of art subject to

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a tailored application of the fair use defense, much like parody. ^[4] Specifically, this Part argues that appropriative use is sufficiently embedded in historical practice that it should, like parody, be viewed as transformative per se and socially beneficial. In addition, like parody, it should be viewed as possessing a valid claim to the need for unauthorized copying that frees it from having to "justif[y] . . . the very act of borrowing." ^[5] Part IV builds on Professor Laura Heymann's viewer-based approach to transformative use to suggest a method for determining whether a particular use is appropriative and how much of the borrowed work may presumptively be copied. Part V summarizes the suggested approach for appropriative fair use and evaluates how it may be limited by other case-specific factors. Part VI surveys recent case law to demonstrate why this approach is preferable to the current situation. Finally, Part VII applies this suggested framework for ap-propriative use to the work of appropriation artist Richard Prince.

II. THE FAIR USE DOCTRINE AND CAMPBELL

From the earliest days of copyright protection, courts have recognized that there are instances in which the denial of unauthorized copying may inhibit desirable activities. Thus, under the Statute of Anne, English courts allowed unauthorized reproduction of copyrighted works in abridgments. ^[6] This recognition has developed into a judicially created exception to copyright protection, dating back in American law to Justice Story ^[7] and now codified in Section 107 of the Copyright Act of 1976 ^[8] : the fair use doctrine. Section 107 demon-

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strates the legislative intent that courts continue to develop fair use through common law, ^[9] adapting the doctrine as necessary to preserve the "Progress of . . . useful Arts." ^[10] Section 107 also sets out a nonexclusive, four-factor test to assist courts in determining whether a use is fair: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the reproduced portion of the borrowed work; and (4) the effect of the borrowing on the market for the borrowed work. ^[11]

Historically, courts have considered the fourth factor "the single most important element of fair use." ^[12] In Campbell v. Acuff-Rose Music, Inc., ^[13] however, the Supreme Court greatly expanded the significance of the first factor by asking whether the work in question was transformative:

The central purpose of [the first factor] investigation is to see, in Justice Story's words, whether the new work merely "supersede[s] the objects" of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. ^[14]

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In other words, the Court recognized that the use of preexisting works in a manner that creates new artistic expression through the "transformation" of the earlier work is of a kind that copyright law has an interest in preserving, and so is one to which the fair use defense should be available. ^[15] Additionally, the transformative quality of a use acts as a sliding scale, giving the court guidance as to what extent other factors must support the finding of the use as fair. ^[16]

Campbell is also significant as the first Supreme Court opinion to deal squarely with parody under the fair use defense. ^[17] The dispute centered on the hip-hop group 2 Live Crew's parodic take on Roy Orbison and William Dees's hit Oh, Pretty Woman. ^[18] In holding unanimously that 2 Live Crew's parody was fair use, the Court stated that "parody has an obvious claim to transformative value" and "can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one." ^[19] It concluded that parody, as a category, is eligible for fair use. ^[20]

Giving parody a per se claim to transformative value begs the question of which works are to be given that designation. On this point, the Court wrote:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to

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make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. ^[21]

Restated, satire does not target a particular work, but...