Notions of the Transformative in Law and the Visual Arts

In January 2011, artist Shepard Fairey and the Associated Press reached a settlement out of court regarding Fairey’s ubiquitous Hope poster (now in the collection of the National Portrait Gallery in Washington, D.C.), created and used during Barack Obama’s presidential campaign. Fairey’s image was based on a photograph of Obama, then an Illinois senator, taken by photographer Manny Garcia for the Associated Press. The A.P. accused him of copyright infringement because of the substantial similarity between the two images. In response, Fairey brought suit seeking a declaration that his use of the photograph was not infringement, but instead a fair use of the copyrighted image, a statutory exception to the exclusive grants given to authors and creators under federal copyright law. Because the parties settled their dispute, the merits of Fairey’s fair use claim were not addressed. Some commentators, however, have argued that the case would have turned primarily on whether Fairey’s use of the photograph was “transformative.” Though this case made headlines, another fair use case, one whose holding has far-reaching implications for artists and others that rely on the doctrine, fell largely under the radar of popular media.

The case of Gaylord v. United Statesi addressed and refined some of the blurry borders surrounding the fair use doctrine, particularly what constitutes a “transformative” work for purposes of fair use. Because the judicial determination of whether use of a copyrighted work in another work is “fair” requires balancing both law and fact, predicting the outcome in a specific set of circumstances is difficult, if not outright impossible. Indeed, the fair use doctrine has been described as “the most troublesome in the whole law of copyright.”ii Accordingly, artists who incorporate copyrighted material into their works often don’t know until a suit arises whether their use will be labeled infringement or protected artistic expression. The uncertainty surrounding the doctrine necessarily increases the risk of using any copyrighted material and artists are beginning to express concern. In Gaylord, the Center for Internet & Society filed an amicus brief on behalf of the Warhol Foundation, the Warhol Museum, Barbara Kruger, Thomas Lawson, Jonathan Monk, Allan Ruppersberg, and eleven law professors urging the court to affirm the lower court’s finding of fair use and reject the standard for “transformative” that it subsequently adopted.

The case involved the Korean War Memorial in Washington DC, in particular a sculpture by artist Frank Gaylord known as The Column, consisting of nineteen stainless steel statues of foot soldiers in staggered formation. Dedicated in 1995, the Memorial was commissioned and funded by the United States and constructed by Cooper-Leckey Architects. Shortly thereafter, amateur photographer and military officer John Alli photographed the monument as a retirement gift for his father, a Korean War veteran. Alli took hundreds of photographs of the sculpture using different angles, lighting, shutter speeds, varying both the time of the year and time of day. The photograph he ultimately chose for his father, which he titled Real Life, captured the monument at dawn during a snowstorm

Alli explained at trial that the he felt the subdued early morning light and falling snow evoked a surreal sensation, drawing the viewer into the photograph and communicating the harsh, freezing conditions soldiers in the Korean conflict were forced to endure. Before Alli began selling prints of his photograph, he reached out to Cooper-Leckey for permission. Though Cooper-Leckey granted a license in exchange for royalties, Gaylord sued him in 2006. Alli settled the dispute by agreeing to give Gaylord 10% of any net sales.

The photograph was selected in 2002 by the United States Postal Service for use on a stamp to commemorate the Korean War. The Postal Service contacted Alli for the image, and he sold it to them for $1500. Alli suggested that the Postal Service contact both Cooper-Leckey and Gaylord for permission, but they did not contact anyone about licensing. They altered Real Life so as to make it monochromatic and grey, and sold the stamps until 2005 when they decided to retire it.

In 2006 Gaylord sued the United States for copyright infringement in Federal Claims Court. The court found the United States’ use of the copyrighted material in the stamp qualified as fair use, and Gaylord appealed. The Court of Appeals for the Federal Circuit reversed and remanded the case for an assessment of damages.

The decision largely turned on whether the Postal Service’s use of the copyrighted sculpture in the stamp was “transformative.” Fair use is determined by balancing four non-exclusive factors that are weighed together with an eye towards the fundamental purposes of copyright.iii The first factor, the purpose and character of the use,iv asks, among other things, whether the second work is “transformative.”v If it is indeed found to be a transformation of the copyrighted material, the factor will weigh in favor of a finding of fair use.

By ultimately concluding that the Postal Service’s use of Alli’s image of The Column was not fair use, the Court of Appeals narrowed what constitutes a transformative work in the fair use context. The court explained that the use was not transformative because “the stamp did not use The Column as part of a commentary or criticism.”vi This understanding of the meaning of “transformative” poses severe limits on what may now be considered fair use of copyrighted materials. Unlike the Court of Appeals for the Second Circuit in Blanch v. Koons which explained that a subsequent work could use copyrighted works as “raw materials” to further creative or communicative objectives and still be considered transformative,vii the Federal Circuit—by narrowing transformative to include only comment or criticism of the copyrighted work—dismisses wholesale a broad range of established artistic practices and ignores the constitutional mandate that grounds U.S. copyright law, namely that exclusive intellectual property rights be granted to authors and inventors for limited times “to promote the progress of science and the useful arts.”viii The intent behind the intellectual property clause is to benefit society and encourage a flourishing of artistic practice by creating incentives. The holding of Gaylord may strangle creative energy and stifle previously protected artistic expression with the ominous threat of legal repercussions while rejecting important and established artistic practices

The idea that by changing context one can radically change the meaning of an object is a well-established notion in modern and contemporary art. Indeed, one landmark work that aptly illustrates the point is Marcel Duchamp’s 1917 work Fountain. Probably his most famous readymade, replicas of Fountain (the original was lost) are housed in museum collections the world over. Fountain consists only of a found object the artist installed with no changes apart from his scrawling of “R. Mutt” onto the side. As Duchamp biographer and art critic Calvin Tomkins notes, “it does not take much stretching of the imagination to see in the upside-down urinal’s gently flowing curves the veiled head of a classic Renaissance madonna or a seated Buddha or, perhaps more to the point, one of Brâncuşi’s polished erotic forms.”ix Once the object was placed in an art exhibition, it ceased to be a functional item and was transformed into an object of beauty.

Further, appropriation art, a movement that gained popular ground in the late 1970s, makes broad uses of found images (or photographs of them). Sometimes incorporating images wholesale with little or no alteration, this type of practice again emphasizes that changing the context of an image, from being seen on a billboard to the wall of a gallery, is transformative because the image becomes a work of art. Artist Richard Prince’s work Spiritual America, 1983, appropriated a photograph of a young Brooke Shields, originally the work of commercial photographer Gary Gross, while the work’s title is borrowed from a 1923 photograph by Alfred Stieglitz. The subject of a retrospective at the Guggenheim Museum in 2007, Richard Prince’s influence on art history is undisputed. Unfortunately, because this work and others like it do not explicitly comment on or criticize the incorporated copyrighted material, they could very well be considered infringing under the standard the Federal Circuit has adopted.

Renowned jurist Oliver Wendell Holmes Jr. once stated that:

“[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”x

Though oft-quoted, his candid and self-aware remark seems to have lost its footing within contemporary copyright jurisprudence. As the boundaries of the copyright “monopoly” continuously expand like a snowball rolling down a mountain, a broad conception of fair use becomes increasingly important to promoting artistic expression. Our contemporary jurists should take heed of Holmes’s remarks as well as consider the constitutional principles on which copyright law is grounded—not exclusively to protect authors and creators, but instead to provide an incentive for individuals to make creative works for the benefit the public.

This delicate balance requires an interpretation of fair use that allows artists to feel free to “quote” from other works, and it requires judges to acknowledge that perhaps it is the place of art historians, viewers, or artists themselves, to determine whether the intent behind work is transformative. Indeed, art history has long recognized that changing the context of a work changes its meaning: something largely worthless, once altered to become an art object, becomes invaluable. Though no explicit comment or criticism is made about the original work, a new work is created whose transformative nature has been acknowledged by art historians for almost a century. Courts must recognize that people draw creative inspiration from the world around them to make new works that benefit our society, and that world includes other people’s creative endeavors.