Photo by Stark-Otto/ullstein bild via Getty Images.
In recent years, the controversy surrounding some of artist Richard Prince’s works has again cast a spotlight on appropriation art and copyright infringement. His “New Portraits” series, created in 2014, consists simply of screenshots of other people’s Instagram posts with comments by Prince. The series prompted an ongoing lawsuit in 2015 when Donald Graham, one of the people whose photograph Prince used without permission, sued the artist. Prince has invoked fair use, a legal defense that permits certain use of copyright works, in that case. He is one of many artists who have turned to fair use to defend their appropriation, but few, if any, have been quite as successful in court as Prince.
Most disputes end in settlements rather than judgments in favor of the artist, very few of whom ever take a case all the way to a judge. Those who shied away from court include Andy Warhol and Robert Rauschenberg, two of the first artists who, in the 1960s and 1970s, faced legal action for appropriating others’ photography. Despite the fact that both artists had, by today’s standards, a decent argument for fair use, these early disputes settled out of court. But their cases illustrate how fair use law has evolved over the decades, and how appropriation artists ran into legal hot water well before Prince logged onto Instagram.
In 1976, while flipping through Time magazine, photographer Morton Beebe spotted a familiar image: It was a rough reproduction of his photograph Mexico Diver (1970), in a 1974 Rauschenberg collage entitled Pull (Hoarfrost Series). He initially sent Rauschenberg a letter, expressing his disappointment in particular because Rauschenberg had taken “the lead of protecting artists rights.”
Rauschenberg’s letter in response admitted that the image that he used was taken by Beebe. But Rauschenberg considered his use of this image and others non-infringing because he “consistently transformed these images sympathetically with the use of solvent transfer, collage and reversal as ingredients in the compositions which are dependent on reportage of current events and elements in our current environment hopefully to give the work the possibility of being reconsidered and viewed in a totally new concept.”
Rauschenberg’s letter details his understanding of the use of the image as fair because it was transformative, which, despite its merits, was not a criteria for “fair use” at the time. “Fair use,” prior to 1978, was a narrow doctrine not yet codified into law and many cases invoking it focused on educational use and newsworthy exceptions to copyright. Despite Rauschenberg’s impassioned plea, Beebe later sued Rauschenberg for copyright infringement. The parties eventually settled the case in September of 1980 before a judge was able to weigh in. Beebe accepted $3,000 (a little under $10,000 today), a copy (one of 29) of Rauschenberg’s Pull collages, valued at $10,000 by the early 2000s, and the promise to be credited in the future.
Beebe indicated in an interview with the publication ARTnews that “his legal costs were mounting and he didn’t want to risk losing the case on ‘a technicality,’” hinting that the often onerous burdens placed on copyright holders by the law of the time, such as publication requirements, could have been his case’s downfall. Rauschenberg’s lawyers maintained the position that the artist’s use of the photograph fell under an incredibly broad construction of fair use because of the way Rauschenberg’s collage transformed Beebe’s original image. During the dispute, the presiding judge voiced “concern” over Rauschenberg’s reliance on Beebe’s original image, regardless of his transformation. However, the willingness of both sides to settle reflects the uncertainty of copyright litigation at the time.
Similarly, in 1966 Warhol was sued by photographer Patricia Caulfield for copyright infringement stemming from his use of one of her images of hibiscus flowers. Warhol increased the contrast of the images, replaced the detailed petals with simplified monochrome flowers, and his characteristic pop art color palette. After first exhibiting Flowers at the Leo Castelli Gallery in 1964, Warhol sold hundreds of prints of the image. Caulfield’s case also settled before trial; she was given $6,000 (around $25,000 today), two of the paintings (one for her lawyer), and a royalty on future reproductions of her photograph. After the settlement, Caufield expressed exasperation; she did not have “the time, money or energy to pursue the matter further.” As for Warhol, he resolved to use only on his own photographs after the settlement.
Both of these disputes took place before the 1978 implementation of the Copyright Act of 1976. This overhaul of copyright law shifted legal standards for copyright protection of the underlying work and explicitly addressed fair use, providing more clarity on its use. The act established the four-pronged test for fair use, which requires a court to consider 1) the nature of the original work, 2) the purpose and character of the new work, 3) the amount and substantiality of the work, and 4) the effect of the use on the market for the original work.
The act’s codification of the fair use doctrine attempted to streamline its previously inconsistent and, as evidenced by the sheer number of cases invoking it, difficult application. Prior to the act, the lack of concrete guidelines for the common law doctrine meant that different courts applied different criteria. Additionally, before the act came into effect, federal copyright protection was limited to works that complied with onerous publication and notice guidelines. Many works fell short of these requirements and would be considered to have fallen into the public domain.
The arguments of these early appropriation artists (that their work transformed the appropriated photographs) are supported by the fact that both resulting pieces are strikingly different from the original works and clearly incorporate stylistic elements unique to Warhol and Rauschenberg. However, despite the merits of their cases, Warhol and Rauschenberg’s preference for settlement would remain the strategy of choice for many artists facing similar matters in later years. That is, until Prince was sued for reproducing images of rastafarians from Patrick Cariou’s 2000 book of photography “Yes Rasta,” using them to create a collage series he called “Canal Zone.” Prince, after an initial loss, eventually prevailed on appeal. The court held that his “composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.”
In court testimony, Prince himself indicated that his work did not “have a message” and that he did not intend to create works with a new meaning or message. Although this would seem to undermine a fair use argument premised on transformation, the court held that “what is critical is 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. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”
It is unclear what effect a judgment like Cariou would have had on art from the Warhol era, had it been decided then. But it might not have been decided in the same way, especially because the fair use doctrine had not been codified at the time. Regardless of the merits of Warhol and Rauschenberg’s cases—particularly in view of Prince’s success in the Cariou case—there is no denying that subsequent changes in the legal and cultural landscape have buoyed the possibility of success for artists who today rely on fair use.
Prince’s approach of testing the evolving fair use doctrine in court, often brazenly, represents a bold departure from artists who faced similar hurdles in the past. The Cariou suit broadens the applicability of fair use to situations where even the artist creating the work does not intend to make a work transformative, but succeeds in doing so anyway. It remains to be seen whether Prince’s most recent legal dispute will end in his favor (early signs point to trouble), but one thing is for sure: Fair use and the legal landscape in which it is invoked will continue to develop in concert with the progression of contemporary art.