[Air-L] Help with sources

[Tom Lee]

Brian, given your background I suspect that much of this will be familiar
to you, but your question immediately brought to mind related questions
from the art world related to recontextualization of copyrighted images.
You seem to be suggesting a transformation from (potentially) aesthetic to
functional uses (and a consequent accommodation similar to the one extended
to embodiments of copyrighted works in computer memory). If that's correct,
I suspect that some of the same principles relevant to transformations in
the other direction will apply.

I hope you won't mind that I shared your query with a friend who works as a
critic.  I'm afraid that the following may suffer from a lack of clarity
about exactly what you mean by "SMS sites" and "offloaded and/or
transactive memory," but I hope you will find some part of it useful. His
reply (lightly edited):

There was as you're likely aware a legal battle between street artist
Shepard Fairey and an AP photographer over the rights to the Obama "HOPE"
propaganda. That case and various mutterings about fast-fashion and
trickle-up (or -down) design represent the most popular tests of copyright
in design.

But the better case, and the better test, of copyright and appropriation
comes involves Richard Prince. He's an artist whose genre is appropriation:
He got his start with a technique he called re-photography, which was to
take photographs of commercial advertisements that are in large part
indistinguishable from the commercial advertisements themselves. Here's his
famous *Untitled
(Cowboy)*<http://www.metmuseum.org/toah/works-of-art/2000.272>,
a rephotograph of the photograph used for a 1970s Marlboro campaign.

Whenever it's come up in court, the law has largely favored artists and
generally deemed appropriation to be useful and protected (if irritating)
speech. Two precedents that are cited often: a 1990 Harvard Law Review
article <http://docs.law.gwu.edu/facweb/claw/LevalFrUStd.htm> on fair use
that found a positive, additive value in appropriation, and (why not) a 1994
SCOTUS decision involving 2 Live
Crew<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10426>.
But two years ago, Prince lost a case brought forward by another
photographer in a U.S. District Court that alarmists say upends fair use as
it applies to visual art. Here's a report on that
case<http://www.theartnewspaper.com/articles/Patrick+Cariou+wins+copyright+case+against+Richard+Prince+and+Gagosian/23387>
 and here's the
case<http://www.scribd.com/doc/51214313/Cariou-v-Richard-Prince>.
I agree that the decision narrows the potential for fair-use in visual art
and has a chilling effect on rephotography as a strategy, but I doubt that
the precedent would ever apply to any other artist; there are few artists
out there whose means *and* ends are appropriation whole stop. But I could
be wrong and in any case I do think it was a dumb decision, tyranny!!, etc.

I don't know that it answers the poster's question, but my guess is that
U.S. District Court Justice Deborah Batts would not be convinced that
posting an image to an SMS site (??) qualifies as a "transformative" use,
because recontextualization fails a test that Batts has entered into
precedent, namely that the adapted work must comment on the original in
some affirmative sense. I don't really remember the specifics from the
case, but this is a good
summary<http://jolt.law.harvard.edu/digest/copyright/cariou-v-prince>
:

After considering whether the work was transformative, the court went on to
analyze the commerciality of the work, the presence of bad faith on the
defendants’ parts, the nature of the copyrighted work, the amount and
substantiality of the portion used, and the effect on the potential market
for or value of the copyrighted work, finding that each of these factors
weighed against fair use. The court also found the Gagosian Gallery
directly liable – having copied elements of Cariou’s photos in the
production of an exhibition catalogue – and contributorily and vicariously
liable – having benefited from and knowledge of the infringing nature of
Prince’s work.  Towards this last point, the court made special note of the
fact that “the Gagosian Defendants were well aware of (and capitalized on)
Prince’s reputation as an appropriation artist who rejects the constricts
of copyright law,” yet failed to ensure that Prince had obtained permission
for the use of Cariou’s photographs.

It sounds like the forum poster skirts some of these questions. Hope this
is helpful and let me know if you see some angle in here that might be
especially applicable and I can let you know if I know any more about it.
Feel free to copy, adapt, transform, etc., this email as you see fit.



On Tue, Feb 12, 2013 at 12:02 PM, Brian Holland <bholland at law.txwes.edu>wrote:

> A long-time lurker to this point and, as a law prof, feeling like a bit of
> an outsider, so I'm sorry if this is a bit misplaced ...
>
> Background: I am writing an article arguing that images posted to SMS
> sites should, in some cases, be protected from copyright claims via fair
> use. In essence, I am arguing that such use is "transformative" (and thus
> protected by fair use) because it serves a purpose distinct from the
> original; i.e., originally news, aesthetic, etc., now as markers in
> offloaded and/or transactive memory.
>
> Issue I'm having: I am familiar with the extensive writing about issues
> attendant to the sharing function of these websites (and I address this to
> an extent by linking memory to identity), but I can't find much of anything
> in the legal literature on the archiving or repository function (except re:
> issues of privacy, post-death protection, evidence, etc., which aren't
> really on point for my focus on the social and psychological aspects).
>
> Request: Can anyone steer me towards literature that I might find helpful?
>
> Thanks in advance, and my apologies if this is off track for the list.
>
> Brian
>
> H. Brian Holland
> Professor of Law
> Texas Wesleyan School of Law
>
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