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A BRAVE NEW WORLD: Second Circuit Expansion of the Parody Defense

Published onMar 17, 2014
A BRAVE NEW WORLD: Second Circuit Expansion of the Parody Defense

Copyrights protect original creations from theft, but a recent Second Circuit opinion has raised new questions about what can fall under the § 107 fair use exception of the United States Copyright Act. Richard Prince is an artist well known for using famous photographs as the subject matter for his pieces. By altering portions of the photographs, Prince attempts to alter the context of the original images, and in 2008, Prince’s art sales of reworked photographs totaled over $10 million. When photographer, Patrick Cariou, discovered that Prince had used over thirty of his photographs as subjects for his works, including the cover photo for his book of a Jamaican Rastafarian, Cariou sued Prince for copyright infringement.

Copyrights grant their owners the exclusive right to use their works and make derivative works, which are creations that recast, transform or adapt the original. If Prince’s work is derivative of the original photographs, then he is required to get permission for that creation from the copyright owner, which he did not do. The fundamental question then turns on whether Prince’s work falls under the fair use exception, or more specifically, parody. The Warhol Foundation filed a brief on Mr. Prince’s behalf, arguing that Prince’s use of copyrighted work constitutes fair use because he had transformed the originals into something new and that they are a parody of Cariou’s work. Because fair use is an affirmative defense, the potential infringer has the burden to show that his/her use is fair use. Defendants typically invoke the fair use defense when a copyrighted work is the subject of a subsequent work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, but these categories are not automatically protected. Instead, the courts must balance several fair use factors including:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational profit; (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 and use upon the potential market for or value of the copyrighted work.

These factors are not exhaustive, however, and a court may raise any equitable factors it finds appropriate. Commercial works, for example, can fall under parody, but the commercial nature will often go to suggest a different motive behind the work’s creation.

District Judge Deborah A. Batts of Manhattan, ruled in favor of Mr. Cariou, finding Prince’s works are not parody, but the Second Circuit, under a broadened application of fair use, found that much of Prince’s work did not infringe the original photographs’ copyrights and remanded the question of whether Prince’s work infringed the rest of Cariou’s copyrights to the lower court. According to the court, so long as the new work is “transformative” of the original work, there is no copyright infringement, reasoning that there can be reason to use an original work in a transformative way other than parody. Over a dozen photographer organizations—including the National Press Photographers Association, Professional Photographers of America and the Picture Archive Council of America—have banded together in outrage over the decision to submit a friend of the court brief in support of Cariou and meet with legislators, including members of a House of Representatives subcommittee.

The troubling issue is that the Second Circuit failed to explain what constitutes transformative and failed to consider that original works could be transformed for non-parody reasons. Would rendering a color photo in black and white film or the mere addition of words be transformative? Is doing so in order to benefit monetarily from the work’s fame parody? One would surely think not, but under the Second Circuit’s parameters, these arguably could be. To add to the confusion, Prince testified that he had no intention “to create anything with a new meaning or a new message” with the altered photographs, yet the court found his work transformative of Cariou’s photographs through parody. The court went on to explain that Prince’s work could constitute parody even if that is not what he intended, looking instead to the way the public perceives the work. The Supreme Court denied certiorari on this case, but this troubling decision will certainly beget more litigation challenging the boundaries of parody. We will have to wait to see what becomes of the fair use doctrine in the Second Circuit.

* Rebeca Echevarria is a third year law student at Wake Forest University School of Law. She has a Bachelor of Arts in Politics, International Relations, and Biomedical Ethics from Mount Holyoke College. Upon graduation in May 2014, Miss Echevarria intends to practice Intellectual Property and Biotechnology law.

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