Guest blogger: Kathryn Goldman
The short answer is “No.”
The longer answer is that most artists are not going to have their art taken by someone like Richard Prince who has commercial stature and deep pockets. The threat to most artists is from every day Internet “sneak thieves” – lazy non-creatives who right click, copy and paste. Prince did more than that, but not much more.
Copyright is still useful for artists despite the actions of Richard Prince and the expansion of the defense of fair use.
Richard Prince — Pushing the Envelope, or Taking Advantage?
When it came to light that Richard Prince appropriated wholesale the work of Instagram users, added a few phrases of his own to the comment thread, enlarged the images and charged $90,000 for a print, many in the art world (and the legal world) were troubled by his actions. Others, not so much.
Some of the original creators of the Instagram images have sought revenge of sorts by selling the image they created for $90 in an attempt to undermine Prince’s market. The effectiveness of that strategy is questionable. Without Richard Prince’s actions, those Instagram artists would have continued operating in relative obscurity.
Many agree that obscurity is a bigger problem for artists than infringement. [ Tweet this. ]
The reality of the Instagram situation is that none of those photographs was registered with the Copyright Office by the creators. The speed and volume with which digital photography is created and pushed out into the world through social media tends to prevent a meaningful and systematic methodology for protecting rapid-fire creation using copyright law.
By the time the Instagram users discovered the infringement of their work, the Prince piece was sold. The money was in his pocket.
The original creator’s opportunity to stop the infringement or seek statutory damages (up to $150,000) had passed. An application for copyright registration must be filed before an infringement takes place in order to recover the big dollars.
One recommendation for protection from Prince would be to block him (his handle is richardprince4) from following you on Instagram. Or quickly filing a copyright application on any image Richard Prince leaves a comment. Unfortunately, I feel sure that horse has already left the barn. His next venture in appropriation is unlikely to be on Instagram.
This is not the first time Richard Prince has raised the ire of artists, specifically photographers. Recall the notorious case in which the Second Circuit decided that the image on the right created by Prince after copying the photograph by Cariou did not violate Cariou's copyright:
The court considered the work transformative. Prince created something different and new, although he was unable to articulate his motivation or the meaning of the work.
The court wasn’t so sure about this creation, though:
The question that remains unanswered is whether a “reasonable observer” would find the image on the right to be transformative of the original photograph and therefore protected from a claim of infringement by fair use. The case settled before that open issue was decided, so we’ll just never know.
Protection vs. Fair Use: Natural Tension
On one side of the coin, Copyright law (and the Digital Millennium Copyright Act) continues to provide powerful tools for the protection of offline art and online digital images. Those tools include the recovery of statutory damages and attorneys’ fees.
The other side of the coin is that by helping to expand the idea of what is “transformative” in the visual arts, Richard Prince has enhanced protection for artists who otherwise would not have created their art for fear of being sued for infringement.
Appropriation artists and collage artists, in particular, are living in a new world of opportunity where once there was a “chilling effect.” Fair use is being freshly applied to protect those who use the work of other artists as component parts, or elements, to create something new and different in their own work.
Transformative use has become the most important element in determining whether the use of someone else's work is fair and not infringing. This is true despite the fact that courts are required to consider three other factors before finding fair use.
The Center for Social Media at American University recently issued its Code of Best Practices for Fair Use in the Visual Arts. In it, the Center urges that the use of a pre-existing work, “… should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.”
The Center for Social Media requires a higher standard than was required of Richard Prince. Prince never had to articulate a rationale for his appropriation of Cariou’s work.
Copyright Law at Its Most Basic
Most artists have a solid understanding that copyright law exists to protect their art from copyists. But how copyright law really works is, for many, a mystery.
A work does not need to be registered in order to be protected by copyright. The moment a creative work is fixed in a tangible form of expression, copyright protection attaches. That includes a digital file.
Registration is needed to enforce those rights in court.
Those rights are:
- the right to reproduce your work;
- the right to distribute your work;
- the right to make derivatives or create new works based on your protected work; and
- the right to perform or display your work in public.
With the expansive notion of transformative use subject to protection by the fair use defense, the question is whether copyright registration is worth the time, trouble and expense?
If the right to create new works based on your earlier protected work is yours alone (the right to create derivatives), then why is another artist permitted under the guise of transformative use to create new and different works of their own based on your work? The fact of the matter is that the artist who is going to steal from you generally does so without any individual creative intent or motivation and will not have the benefit of the fair use defense.
If the artist who has taken your work is commercially successful, having a copyright registration will enable you to recover damages and stop the infringement. If the artist who has misappropriated your work is not commercially successful, you may not get any money from them, but you certainly will be able to shut them down. Without a registration, you might get them knocked off Facebook or other online venues, but you will not be able to stop physical reproduction or sale.
If you license your work and exploit it commercially through different revenue streams, a copyright registration should be a fundamental part of your business model. To the extent you aspire to become that kind of artist, incorporating copyright registration into your workflow is a business requirement.
The expense of the application ($35 each with a mechanism for registering collections) is a part of doing business, like paying rent or buying a hosting service.
When used thoughtfully, appropriation of another's work can result in new creation. But whether something is new, or just a thinly veiled rip-off, is now in the eyes of the “reasonable observer.”
Regardless, copyright registration is still a solid business practice for artists.
Kathryn Goldman is an intellectual property attorney who represents writers, artists, and businesses, protecting them from having their work and art ripped off. Since she’s a lawyer, she has to mention that she’s not *your* lawyer (so these articles aren't technically legal advice), but you’re still invited to download her Rip-Off Protection Report for Creative Professionals. Follow @KathrynGoldman on Twitter or Charm City Legal on Facebook.