Several groups of photographers are pushing against what they believe to be an over-extension of the fair use defense, especially with regards to a ruling last spring regarding artwork of Richard Prince that was based on photographs by photographer Patrick Cariou. It was originally ruled as copyright infringement, but overturned as fair use at the Court of Appeals, and then the case was refused to be heard by the Supreme Court. Richard Prince was supported in this case by The Warhol Foundation, and the argument was successfully made that his work was transformative.
The photographers, which include the National Press Photographers Association, believe that the ruling is an overzealous extension of fair use that restricts copyright holders ability to enforce their rights, especially the right to create derivative works. They claim that the definition of “transformative” is too fuzzy, and they believe that fair use has extended so far to as restrict creativity, and that “copyright is now an exception to fair use”, and are looking for legal changes to rectify the issue.
I think this is a tough issue. On one hand, clearly transformative works should be considered fair use. On the other hand, especially in the particular case of Richard Prince, many of his works were barely transformative at all, as admitted by the appeals court, and if a work relies so heavily on the original work for its artistic appeal, then I don’t think fair use is appropriate. So it’s possible that this ruling WAS an overreach, but I think the arguments the photographers make somewhat spurious. I don’t think, even if these pieces of art were not sufficiently transformative, that they restrict the abilities of the original copyright holders to make derivative works. Furthermore, I disagree with their claim that fair use has become over-extended as a whole, and I believe this case is in the spirit of the original intent of fair use, even if the exact ruling may be up for debate.
“Photographers Band Together to Protect Work in ‘Fair Use’ Cases”
Patricia Cohen, New York Times, 2/21/2014 (3/4/2014)