Fair Use Randal C Picker James Parker Hall Distinguished Service Professor of Law Ludwig amp Hilde Wolf Teaching Scholar The Law School The University of Chicago October 31 2016 2 107 Limitations on exclusive rights Fair use ID: 694704
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Class 15Copyright Autumn 2019Fair Use
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of ChicagoSlide2
November 26, 2019
2
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and
106A,
the
fair use
of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,
is not an infringement of copyright
.Slide3
November 26, 2019
3
107 (Cont.)
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include‑‑
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;Slide4
November 26, 2019
4
107 (Cont.)
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.Slide5
The Art of Diet Coke IHypoArtist rummages around trash can and finds a dented Diet Coke canPlaces that on pedestal in art gallery as part of new show of worksCritic reviews show and writes review of Diet Coke can on pedestal
November 26, 2019
5
TTYN (1 of 4)Slide6
The Art of Diet Coke ICopyright status?November 26, 2019
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TTYN (2 of 4)Slide7
The Art of Diet Coke IIHypoVisitor to art gallery comes in with can of Diet CokeDrinks it; crushes can; not seeing a trash can, leaves it on open pedestalCritic visits gallery and writes review of the Diet Coke can on the pedestal
November 26, 2019
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TTYN (3 of 4)Slide8
The Art of Diet Coke IICopyright status?Is this different than Prince?Does Price have a message? Does it matter what a reasonable observer would think?
November 26, 2019
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TTYN (4 of 4)Slide9
November 26, 20199Slide10
Cariou v Prince CA2 AppendixThe URLhttp://www.ca2.uscourts.gov/docs/opn1197/11-1197apx.html
(Opinion fn. 3 is missing last l)
November 26, 2019
10Slide11
CA2 Determination on Fair Use30 Works by Cariou25 found to be fair use by CA2 majority and therefore not infringingTry one of those: “James Brown Disco Ball”
November 26, 2019
11Slide12
TTYN (1 of 3)
November 26, 2019
12
Prince v.
Cariou
(CA2 2013)Slide13
TTYN (2 of 3)
November 26, 2019
13
Prince v.
Cariou
(CA2 2013)Slide14
CA2 Determination on Fair UseTry one of those: “The Ocean Club”Prince: The Ocean Club, Collage, inkjet, and acrylic on canvas, 76" x 100
1/2“
Cariou
: P. 33, Pp. 79-80, P. 88, Pp. 95-96, P. 118, Pp. 159-160 November 26, 201914
TTYN (3 of 3)Slide15
Settlement
November 26, 2019
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New York Times (18 Mar 2014)Slide16
Undisclosed Terms
November 26, 2019
16
New York Times (18 Mar 2014)Slide17
More Richard Prince
November 26, 2019
17
Google Search (6 Nov 2019)Slide18
More Richard Prince
November 26, 2019
18
Google Search (6 Nov 2019)Slide19
More Prince Litigation
November 26, 2019
19
Graham v. Prince, 265 F.Supp.3d 366 (SDNY 2017)Slide20
November 26, 201920
Kienitz
v.
Sconnie
Nation, 766 F.3d 756 (7th Cir. 2014
)Slide21
November 26, 201921
Kienitz
v.
Sconnie
NationSlide22
November 26, 201922
Kienitz
v.
Sconnie
NationSlide23
November 26, 201923
Kienitz
v.
Sconnie
NationSlide24
November 26, 201924
Kienitz
v.
Sconnie
NationSlide25
Return to Rogers v Koons960 F.2d 301 (9th Cir. 1992)Key QuestionWould
Koons
win on fair use under
Cariou?November 26, 201925Slide26
November 26, 201926
www.jeffkoons.comSlide27
November 26, 201927
DesignObserver.comSlide28
Rogers v KoonsThe Fair Use Analysis: Bad Faith“Relevant to this issue is Koons’
conduct, especially his action in tearing the copyright mark off of a Rogers notecard prior to sending it to the Italian artisans. This action suggests bad faith in defendant's use of plaintiff's work, and militates against a finding of fair use
.”
November 26, 201928Slide29
Rogers v KoonsFair Use: Commercial Use“The Supreme Court has held that copies made for commercial or profit-making purposes are presumptively unfair.”
Cites
Sony
(US, 1984)No longer good law under Campbell (US, 1994)November 26, 201929Slide30
Rogers v KoonsParody?“We must analyze therefore whether ‘String of Puppies’
is properly considered a comment on or criticism of the photograph
‘Puppies.’
Koons argues that his sculpture is a satire or parody of society at large.”November 26, 201930Slide31
Rogers v KoonsParody?“He insists that ‘String of Puppies’
is a fair social criticism and asserts to support that proposition that he belongs to the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of
society … .”
November 26, 201931Slide32
Rogers v KoonsParody?“Hence, it must first be determined whether ‘String of Puppies’
is a parody of
Rogers’
work for purposes of the fair use doctrine. We agree with the district court that it is not. It is the rule in this Circuit that though the satire need not be only of the copied work and may, as appellants urge ofNovember 26, 201932Slide33
Rogers v KoonsParody?“‘String of Puppies,’ also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work
. … ”
November 26, 2019
33Slide34
Rogers v KoonsParody?“We think this is a necessary rule, as were it otherwise there would be no real limitation on the copier's use of another’s copyrighted work to make a statement on some aspect of society at large. If an infringement of copyrightable expression could be justified as fair use
solely on
November 26, 2019
34Slide35
Rogers v KoonsParody?“the basis of the infringer’s claim to a higher or different artistic use — without insuring public awareness of the original work — there would be no practicable boundary to the fair use defense.
Koons
’
claim that his infringement of Rogers’ work is fair use solely because he is acting withinNovember 26, 201935Slide36
Rogers v KoonsParody?“artistic tradition of commenting upon the commonplace thus cannot be accepted. … The problem in the instant case is that even given that
‘String
of
Puppies’ is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph ‘Puppies’ itself.”Koons loses November 26, 201936Slide37
Blanch v. Koons467 F.2d 244 (2nd Cir. 2006)www.jeffkoons.com
Easyfun
-Ethereal; Niagara
November 26, 201937Slide38
November 26, 201938
Niagara, Jeff
Koons
, 2000Slide39
November 26, 201939
Photograph by Andrea Blanch, Aug 2000 Allure
MagazineSlide40
Fair Use?Transformative?Supersede or new expression per Campbell?:“The test almost perfectly describes
Koons’s
adaptation of
‘Silk Sandals’: the use of a fashion photograph created for publication in a glossy American ‘lifestyles’ magazine — with changes of its colors, the background against which itNovember 26, 201940Slide41
Fair Use?“portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.”
November 26, 2019
41Slide42
Parody? Avoiding Drudgery?Again citing Campbell:“The question is whether Koons had a genuine creative rationale for borrowing Blanch’s
image, rather than using it merely
‘to get attention or to avoid the drudgery in working up something fresh.’”November 26, 201942Slide43
Parody? Avoiding Drudgery?Quoting Koons: Visual Quoting“Although the legs in the Allure Magazine photograph [‘Silk Sandals’]
might seem prosaic, I considered them to be necessary for inclusion in my painting rather than legs I might have photographed myself. The ubiquity of the photograph is central to my message
.”
November 26, 201943Slide44
Parody? Avoiding Drudgery?Quoting Koons: Visual Quoting“The photograph is typical of a certain style of mass communication. Images almost identical to them can be found in almost any glossy magazine, as well as in other media. To me, the legs depicted in the Allure photograph are a fact in the world, something that everyone
experiences
November 26, 2019
44Slide45
Parody? Avoiding Drudgery?Quoting Koons: Visual Quoting“constantly; they are not anyone’s
legs in particular. By using a fragment of the Allure photograph in my painting, I thus comment upon the culture and attitudes promoted and embodied in Allure Magazine.
November 26, 2019
45Slide46
Parody? Avoiding Drudgery?Quoting Koons: Visual Quoting“By using an existing image, I also ensure a certain authenticity or veracity that enhances my commentary — it is the difference between quoting and paraphrasing — and ensure that the viewer will understand what I am referring to
.”
November 26, 2019
46Slide47
Koons WinsConclusion“Having explored the statutory factors and weighed them together in light of the purposes of copyright, Campbell, 510 U.S. at 78, we think that the district
court’s
conclusion was correct — that copyright
law’s goal of ‘promoting the Progress of Science and useful Arts,’ U.S. Const., art. I, § 8November 26, 201947Slide48
Koons WinsConclusion“cl. 8, would be better served by allowing Koons’s use of
‘Silk Sandals’
than by preventing
it. We therefore conclude that neither he nor the other defendants engaged in or are liable for copyright infringement. We affirm the judgment of the district court.”November 26, 201948Slide49
Mashup Culture
November 26, 2019
49
AuthorsAlliance.org (5 Nov 2019)