The Wall Street Journal‘s Daniel Grant has an excellent tour of the issue of copyright protection and appropriationist art. In response to the Cariou suit against Richard Prince, Grant explores Jeff Koons’s win and a loss over the same issue:
Other artists have stumbled into this gray area of the law. “It’s meant to be a gray area, because the copyright law is designed to be flexible,” said John Koegel, a lawyer who successfully represented artist Jeff Koons in an infringement lawsuit by a commercial photographer, Andrea Blanch, in 2005. “The law states that the use of a copyrighted image is transformative based on the ordinary lay observer’s sense of if the new work is different and how different it is. It is very much of a visual thing, and there is no bright line that artists can go by.” [ . . . ] Working against artists, Mr. Koegel claimed, is the fact that “the law hasn’t accepted two principles that are well understood in the art world. The first is that a change in medium is transformative. If you go from two to three dimensions, you are transforming something and it is experienced very differently than it had been. The second is that re-presentation is transformative; when you are taking something and making a comment on it, even when the thing you are commenting on is relatively unknown, that comment makes it protected as a fair use of a copyrighted image.”
Like so much in the field of copyright law, those two principles are not absolute. Shifting from one medium to another is not a way of avoiding a lawsuit. For instance, turning a novel into a film is a shift in medium, but without the permission of — and, probably, a payment to — the author, the filmmaker would be in violation of the writer’s copyright, because the author has the exclusive right to make “derivative” works or license the making of a film. “Where derivativeness ends and transformative begins is not at all clear,” said Robert J. Kasunic, principal legal adviser at the U.S. Copyright Office in Washington. Also, he noted, a commentary or parody works only “if the average person can see” that some comment is being made.
Color this Part of the Law Grey (Wall Street Journal)