Want to see "hot punk rock girls naked"? The SuicideGirls is a website where “alternative” models post photos of themselves. Those of you who have read my book, Issues in Internet Law: Society, Technology, and the Law, already know that a photographer owns the copyright in any photograph he or she takes, so if a model uploads a selfie to the Internet, then she holds the copyright to that photo. It’s a simple concept, but where the SuicideGirls are concerned, it could mean the difference between $90 and $90,000.
The copyright holder has certain exclusive rights, including the right to control the reproduction, distribution, display, and performance of the copyrighted work. The Copyright Act also grants the copyright owner the right to prepare derivative works based on the copyrighted material. It’s that last right where things get interesting. Along comes infamous appropriation artist Richard Prince. The Museum of Modern Art defines appropriation as “the intentional borrowing, copying, and alteration of pre-existing images and objects.” In other words, Prince takes other people’s work, makes a small change or represents it in a different way, and resells it for big money. Dickie-boy took images from Patrick Cariou’s book Yes Rasta without permission and used them in a series of collages, selling one for about $2.5 million.
Dickie-boy’s latest project is called “New Portraits”. He scours Instagram for pictures of strangers that they uploaded – mostly of young women in seductive or vulnerable poses – adds a few sentences of commentary beneath them, blows them up into large prints, and displays them in museums and sells them. “New Portraits” ran at the Gagosian Gallery in New York City from September through October 2014, displaying 38 portraits featuring photos from his Instagram feeds that Dickie-boy had taken of other people’s images, without their permission. Vogue magazine describes it as Robin Hood in reverse because Dickie-boy is “stealing from the masses and feeding it to the rich,” as most of the subjects in the photos he’s appropriated couldn’t afford to buy the prints of themselves at the prices he’s selling them. Worse, the people pictured in their own photos appropriated by Dickie-boy have no way to respond to whatever snarky or sleazy comment he has placed below their image for the world to see.
In the case of Cariou’s book, the author sued Prince for copyright infringement. After all, those were Cariou’s copyrighted photos Dickie-boy had used to make his collages. But Dickie-boy claimed it was fair use. “Fair Use” is an affirmative defense under copyright law. That means someone sued for copyright infringement can plead as a defense that it was fair use and be allowed to use the copyrighted material. The problem is that fair use is decided on a case-by-case basis by the judge; one has to use the work first and then find out from the court if it was permissible to do so. There are certain guidelines judges use to determine fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the copyrighted work's value.
In the Cariou case, the U.S. Court of Appeals for the Second Circuit referred to a Supreme Court decision, Campbell v. Acuff-Rose Music Inc., in which the band 2 Live Crew had been sued for violating Roy Orbison’s copyright on his song “Pretty Woman” after it released a parody with different lyrics. The Supreme Court found the parody “departed markedly from the Orbison lyrics, producing otherwise distinctive music.” This, it held, was a transformative use and therefore a fair use of the copyrighted material. Using that rationale, the Second Circuit ruled that most of Prince’s collages were transformative uses and did not violate Cariou’s copyright.
I’ve always found the concept of transformative use troubling. The idea that someone can take another person’s work, tweak it, and then profit from it seems to fly in the face of U. S. copyright law. For example, if I take a copyrighted bestseller and change the names of all the characters and the locations of all the scenes, and republish it under my name, I would likely be sued for copyright infringement… and laughed at, were I to claim it was a fair use because I had transformed the work. Remember, the Copyright Act grants the copyright owner the right to prepare derivative works based on the copyrighted material. Aren’t all transformative works derived from the original? If that’s the case, then the copyright holder should have the right to control or prevent any works derived from the original (unless they fall under the four factors traditionally used by courts to define fair use).
Last year, the U.S. Court of Appeals for the Seventh Circuit ruled that ‘transformative use’ alone is insufficient for a finding of fair use. It noted, in Kienitz v. Sconnie Nation, “to say that a new use transforms the work is precisely to say that it is derivative.” So there appears to be a split among the circuits on the issue of transformative use. In the meantime, Dickie-boy Prince is making millions appropriating other people’s work and tweaking it. He sold prints of the SuicideGirls’ Instagram photos for $90,000 a pop. The SuicideGirls decided against suing the multi-millionaire appropriation artist, opting instead to fight fire with fire: they released their own blown-up prints, identical to the prints Richard Prince is selling, but for only $90. In a side-by-side comparison ad, the SuicideGirls state both are 67x55, both are inkjet on canvas, but one’s “profits go to rich art gallery owner and millionaire ‘artist’” while the others are “sold by the actual people who created the image and profits go to charity.”
On their Facebook page, the SuicideGirls wrote, “Do we have Mr. Prince’s permission to sell these prints? We have the same permission from him that he had from us. ;)” Sounds like a fair use to me.