A great day for decriminalizing artistic ambiguity
In good news for fair use rights activists, Richard Prince won his Second Circuit Appeals Court appeal of a decision that his use of copyrighted imagery in collage of ambiguous “commentary” (i.e. they did not directly comment on the original work) was erroneously considered copyright infringement. This overturning is a big blow to a narrow framing of fair use as only applying to “commentary and criticism” in a limited sense, and gives more support to emerging best practices in remix and other forms of transformative — but not strictly “critical” of original texts — art and communication practices.
I’m a big believer in justifying intentions in art creation as a teaching strategy, but I’m completely opposed to it as a legal obligation. Authors and audiences have complicated relationships, and often what authors intend to do — whether it’s to “comment” on a piece of copyrighted material or use it for more ambiguous purposes - just isn’t the most relevant consideration in a given case.
In a BoingBoing article, NYU law professor Amy Adler comments on the significance:
The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince’s testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work
This squares with some of Prince’s cheeky but important commentary on the justification of his own work:
“So what are four lesbians from the early 20th century doing on St. Bart’s in, now, when there’s a nuclear war, like why are they there?” a lawyer asked Mr. Prince, who responded: “Your guess is as good as mine. That’s what I do, I make things up.” At another point in the transcript of the deposition, a lawyer asked, “What is the message?” Mr. Prince replied, “The message is to make great art that makes people feel good.”
I don’t think educators should stop at such justifications in the classroom, but certainly the law should.
Next up in my mind: Applying these standards to art in the realms of music remix and sampling and fiction film, both of which have been unfairly targeted with absurd industry norms around licensing. On the remix front, artists like Girl Talk (regardless of what I think of his music) and other amateur DJs have been pushing fair use in their use of samples, but I would like to see some mainstream hip-hop artists (say) defend their samples as fair use and change the 1990 precedent that transformed the evolution of hip-hop sampling.
As for fiction film, I have high hopes for the film Escape from Tomorrow finally galvanizing the fiction film community to rethink their restrictive licensing practices. We’ll see how these go.