July 20, 2015 | Guest Blogger

Has Richard Prince Killed Copyright Protection For Artists?

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.

Has Richard Prince Killed Copyright Protection for Artists?

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:

Cariou Image1

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:

Cariou Image 2

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 GoldmanAbout Our Guest Blogger

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.

18 comments add a comment
  • Angela Jarman

    I was surprised by this: “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.” I knew that without an official registered copyright you could not reap any damages in court, but I thought that the person infringing on your work would at least still have to cease and desist.

    • Angela,

      Let me clarify. You need to have registered your copyright before an infringement in order to be able to recover attorneys’ fees or statutory damages (up to $150,000 for willful infringement). So you are correct about that.

      If you did not register your copyright before the evil deed doer took your work, you still need to register in order to bring an action in court for an injunction to stop them from physically selling or reproducing your work.

      So, before you can go to court, you need to register your work.

      Facebook and Google might help you get the infringing work taken down online even if your work is not registered.

      Kathryn

  • Amanda Taylor

    Awesome post, Kathryn!

    I am not a lawyer, but a fellow creative person who has done a lot of research, so take my comments for whatever they’re worth.

    IMHO, this in no way is fair use, but flagrant, willful infringement at its worst and exploitation. It doesn’t matter where the artist posted it, shared it, listed it for sale/free, or whatever, and the fact it isn’t registered doesn’t give him the right to take it and use it.

    He is using the “fair use” defense as a get out of jail free card like a lot of other theives do when they get busted. I don’t think the “derivitive extention” here is fair either.

    Even more condemning is that Richard Prince is directly in contact with the artist and could have asked him/her permission with a PM or contacted them and gotten written, documented, and signed permission or license or agreement of some kind to use it for a record for his intended use (CYA). The artist should also save a copy. This would be the decent thing to do and both parties would have benefited. Worse, he didn’t try to go get images off reputable stock sites (some cost a few bucks depending on use, but he would have to get the right license). I mean, he didn’t *gasp* try to copy something off of Google Images (not cool either, but just saying). He is really THAT lazy?

    What would happen if the artist took screen captures of Richard Prince following them on Instagram and everything he did as evidence? How would THAT look to a judge? I don’t know what would happen to a flagrant, willful infringer like that would have done to them if the image wasn’t registered, but it is still protected under the law regardless. It is pretty clear to me he stole it and used it for financial gain at the artist’s expense. Surely he would be able to get something, even if it wasn’t $150K+.

    Plus, I have heard that images can be registered as compilations. If it were me and I wanted to register a compilation, I would arrange the images by theme and give the compilation a name and document what images were in it and how many and save my backup copies that way. That way it is registered properly and trackable and evidence is handy, especially if I created images in a “rapid fire” succession.

    The best article I have been able to find about how to test for fair use with examples is here: http://janefriedman.com/2013/07/15/the-fair-use-doctrine/ but the article where Kathryn goes to derivitives is also great.

    • Amanda,

      Thank you for your comment. The outrage you express represents the feelings of many people.

      I think that after the Cariou case, no one is willing to challenge him on the issue of fair use.

      I wouldn’t characterize Prince as lazy. I think he has an eye for the popular culture art market and access to it where the original artist whose art he took does not.

      Personally, I do not believe the Instagram pieces are transformative. But I haven’t served on the 2nd Circuit Court of Appeals since . . . well, never.

      Kathryn

  • Kathryn,

    Thank you for the provocative article. From what I’ve read, Congress is currently holding hearings to draft a totally new US Copyright Act. The changes being considered would undermine artists’ current protections and make it easier for people like Richard Prince to do the things they do.

    Congress recently filed the Orphan Works and Mass Digitization Report, indicating it is considering this new legislation. Although rejected in the past, if the “Orphan Works Bill” passes this time, the bill would:

    — Reverse the “copyright exists upon creation” premise that has been in place since 1976 and, instead, require artists to pay a fee to register every single visual design they want to protect.

    — Allow anyone to use a piece of art for any purpose if they were unable to locate the copyright holder after a “diligent” search.

    — Allow infringers to create and register derivative works.

    — Remove statutory damages, which currently deters people from infringing upon visual work.

    The US Copyright Office has issued a special call for letters regarding the role of visual art in the coming legislation. In fact, today, 7/23/15, is the last day for artists to email their concerns, which they can do at http://copyright.gov/policy/visualworks/

    Thank you again for your interesting article. I’d be interested to hear your thoughts about the proposed Orphan Works Bill.

  • Amanda Taylor

    What a great find Pam!

    Without a doubt, any changes such as these can be abused (I can see the potential) by infringers and copyright trolls (yes they do exist this isn’t fantasy) just like we see here and they represent two different sides of the issue. Present copyright law is being abused by infringers and trolls right now. The people being harmed are both artists and law abiding, honest people in the fallout and it could be the same with these changes.

    Artists and legitimate consumers need equal and fair protection from flagrant infringers and trolls (these groups of people are a potential threat to everyone and make people on different ends of the spectrum look bad) under the law and these changes don’t really cut it.

    • Amanda,
      Thank you for sharing your thoughts. When I read the bill, it seemed to assume that everyone is a “good faith user” who will play by the rules. I have no doubt that good faith users will benefit by being able to locate creators and get permission to use the images they want to use. But I believe the bill will also create easily exploitable loopholes for infringers, and additional burdens for creators. I agree – artists need better protection!

  • Angela Jarman

    Pam, although we should all voice our concerns and suggestions, there have been a lot of rumors going around about the new copyright and Orphan Works legislation, not all of it is true. I was also worried at first but the more I read the actual report the less scary it seems. There is a blog post from a lawyer about the report and proposed legislation here that also pinpoints where to look in the report to get to the heart of the proposals and recommendations: http://www.workmadeforhire.net/the-rest/whats-this-orphan-works-business-about/
    I just read through the report again and still can’t find anything mentioning that the automatic copyright existing upon creation would be reversed, and statutory damages can’t be claimed anyway unless you officially register your work – and if you have done so and for some reason the infringer still couldn’t find you even after the strict regulations for a diligent search then your monetary compensation (which you would be entitled to no matter what if this law goes through unless the use was purely charitable or educational with no profit made) would not only be whatever should have been agreed upon if the arrangement was made knowingly, but it could be increased depending on the increased worth of a copyrighted work.
    Although it’s true that users or ‘infringers’ could create and would have to register derivative works, people have and already do this sort of thing under the current law. What would be different is that this would require they register a “certificate of use” and use a symbol on the piece indicating it is an orphaned work, which in my opinion would make it easier to track down and deal with unintentional infringers. The fact that compensation is automatically built into the deal whether or not you have registered with the copyright office actually would offer unregistered copyright holders more than what you would currently get from what I understand. I am hoping Kathryn might do a write up about this a well so we can hear her views on the subject. I would love for any proof of the scarier claims to be pointed out on the report to me if they are there but I have been searching and just don’t see it. I would make the suggestion that they copyright office implement a reverse image search in order to make locating copyrights for images and photographs easier, but otherwise I don’t think it’s going to be the end of the world for artists and a diligent search would require technological tools and other various means be used in order to qualify.

  • Angela,

    Thank you so much for the excellent points you make!

    I wish I had highlighted the various lines in the Orphan Works Bill that concerned me as I read it, but I didn’t. I’ll have to go back through the 230+ pages and do that, so I may need a few days. Guess I have new plans for the weekend! :)

    Until then, I can tell you that when I read it, I saw language throughout that made it clear that this is a bill designed to *primarily* serve the needs of organizations and people like library collections, history museums and cinematographers. I understand that these groups want to use old literature, images and film, and that they often can’t determine the original creators of these “orphaned” works. I’m glad that the bill will help them use the content they want to use so they can convey history and knowledge without having to fear copyright infringement. I’m all for that, big time!

    However, I think it’s a disservice to include today’s artwork under that bill. And I know the bill will try to establish standards that qualify as a “diligent” search, but I have issues with that, too: “I entered what I thought was an accurate description of the piece in the database, but nothing came up.” “Oh, the artist described the piece *that” way. That’s not how I see the piece, so I didn’t enter that criteria.” Etc.

    As we know, technology is outpacing artists’ ability to establish a connection between themselves and their artwork. Images are copied and spread at lightning speed online with titles, copyrights, signatures, watermarks and metadata stripped out. Not to mention that there isn’t and never has been an accessible, searchable, reverse lookup archive of visual images. That’s a *long* way from becoming a functional reality, with no indication that such a system will even work. I think it’s a huge assumption to base new legislation on the hope that such a system will be created and also be effective.

    I think it all places additional financial and technical burdens on artists to protect their work both in life and after death. And at the same time, it also creates loopholes for infringers.

    If anything, I think we need revised copyright protections that make it easier for creators to protect their work without incurring a rash of new costs and technical requirements, and make it easier for good faith users to find creators.

    I’ll have to re-read the bill to find the specific lines that concerned me and raised the other issues, but these are the gut concerns I came away with after the initial read. I personally would like to see artwork removed from this bill.

    I agree – I hope Kathryn does a writeup about this, too. The more eyes on this legislation, the better!

    • Angela Jarman

      Pam,

      I am all for closing loopholes if there are any for sure! It did seem to me that there were enough guidelines in place to make sure people couldn’t just be lazy about their searches, that they would be required to not only search through online and offline copyright databases but also use whatever other technical tools are available, as well as expert advice. Making the searches easier I think is the key. Although it’s not a database of everything on the planet, tineye.com is a great example of a reverse image search that could be expanded upon in order to search for registered work. It’s not perfect and if something is too new it won’t show up but I have had a lot of success with that in the past. I’ve had countless images stolen and distributed as Photoshop brushes or incorporated into photo manipulation art that I am always able to get removed by filing a DMCA, but I had always wished that there were a trail leading to where the infringer found my image in the first place. Many will say “Oh I found it on google, I don’t remember where now” and I have to wonder if they know, and knowingly stole it from me or whether they are telling the truth and someone else had taken it and posted it online for public distribution. One thing I like about this proposal is that if you want any legal protection whatsoever as a registered Orphan Works user, you would have to document all your searches and document where the piece was originally found. That way you could potentially first get your due compensation from the registered user and then go and find whoever was distributing your work in the first place.
      Unfortunately people will try to use art they find whether this will go through as a law or not, and have been throughout history. This at least leaves a trail, even if it has some flaws in it.
      I do agree that maybe recent and currently registered works should be excluded from use without permission, but I had assumed that if it’s currently registered and the artist is known to be alive or their family taken over the copyright in the case of death then it could not be considered orphaned, though I could be wrong. If I am wrong then that would be the main complaint that I have about the whole thing. If I’m not wrong, then I think it’s an okay solution to at least managing infringement that would likely happen anyway and could make it harder for people to do so if they have so many hoops to jump through. It would help if there were an example of what an orphaned recent work would be, and yes clearer descriptions of what would and would not be considered as orphaned work.
      I do also agree that registering copyrights could be easier, especially when it comes to groups and series of work.
      My biggest gripe this whole time though has been Brad Holland’s sensationalist claims about this issue and all the seemingly exaggerated statements he is making about this proposal without specifically documenting or backing up his claims.
      I just want someone to list all the scary arguments and list all the facts they refer to in the report right next to them with footnotes for where in the report we can find them so I can stop spending time looking into this, haha. Seriously, it has taken up sooooo much of my time!

  • Angela,

    I’m so sorry to hear that you’ve had images stolen and repurposed. That’s awful!

    And thanks for the links. I wasn’t aware of Brad Holland’s claims—or even of this bill in its past iterations. I received an email from friends at an art gallery and followed the link to the report.

    At a high level, I do have a lot of the same concerns as Holland. I’ve only skimmed his writings, but defeating this bill clearly is a mission of his. I won’t be diving that deep into this. Like you said, it’s extremely time-consuming to research and validate everything, and it would be great if someone could document the issues against corresponding parts of the report. I’ll certainly start highlighting the language that concerns me as I go back through it again.

    I would love to see a variety of lawyers address an identical list of points of concern in the bill, as different lawyers can view the same information through different lenses and have different interpretations.

    Please keep me posted and happy creating!

  • Angela Jarman

    Thanks, and I will post if I find anything new. Although some parts of the report sound like maybe it would leave a loophole open for someone to use an actively existing copyrighted work, reading further along seems to close those loopholes so, it’s hard to say. They do want the public’s opinion though so that is good. I’m just worried that they are going to get so many desperate or overly angry messages that some of the good suggestions will get buried or ignored.

  • Quiarrah

    So. . . in simple terms what does this all mean for people who work in PSP (Photoshop/Paintshop) who use others art to make scrapkits, tags Facebook Timelines and the like? I do happen to hold a few web artists licenses which I put on my work everytime I make a tag. I also have alot of art that I have bought on sites like Renderosities which allows me to use it howver I wish (as long as the original artist is acknowledged in some way). But if I wanted to make money selling my said tags or FB Timelines, does this prohibit me from doing so because I did not make said art with my own 2 hands and creativity? I did put the pieces together in a creative way. No one else would put them together the same way I do much like a collage. No 2 collages are going to be the same because everyone will put the pictures together differently. So what does this all mean for US??

    • Quiarrah,

      I think that what it means is that right now is one of the best times to be a collage or appropriation artist. Repurposing the work of others into something new and different “with [your] own 2 hands” has never been safer from a copyright perspective. Take a look at the report I cited from The Center for Social Media, Code of Best Practices in Fair Use For Visual Arts, the section on making art:

      The use of a preexisting work, whether in part or in whole, 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.

      Read the other limitations included there, as well.

      As for work you purchased, the terms of the license will control. A license is a contract and you agree to its terms. A license will trump fair use.

      Kathryn

  • Quiarrah I am pretty sure that whatever terms are in the licenses of the stock you purchase is what would apply. You can still copyright them as derivative works as long as you are following the stock artists’ rules. I don’t think the Orphan Works legislation would change any of that. If the stock terms prohibit commercial use or sale of the finished photo manipulation then that still stands and you shouldn’t do it. If they do allow it as long as you are following their terms of use then you are still allowed to.

  • Amanda, Angela and Pam,

    I haven’t chimed in on the new Orphan Works and Mass Digitization Report from the Copyright Office because I haven’t read it yet. I mentioned to Angela that a follow up post on this issue might be in order. When I write that post, I’ll be sure to let you know.

    Kathryn

  • Gotta Register!

    Kathryn Goldman, esq. wrote,

    “An application for copyright registration must be filed before an infringement takes place in order to recover the big dollars.”

    Kathryn’s half correct: You’re also eligible to seek statutory damages (from $750-$150,000) and legal costs plus attorney fees (at the court’s discretion) if your work is registered WITH-IN THREE-MONTHS OF ITS FIRST-PUBLICATION (17 USC § 412).

    So, if you’re unable to register before the infringement, you “might” have a second chance to pursue enhanced damages & attorney fees against the infringer if your “published” work is registered within three-months of its first publication date (and NOT 90-days as some IP attorneys like to write).

    If you work is displayed on-line, and your intent is to sell/license, allow others to share/distribute, make copies/downloads/embeddings, or further distribute your work, then it’s likely been “published,” according to the US Copyright Office; otherwise, your work might be un-published. For un-published works, you gotta register BEFORE the infringement occurs to have any substantive chance of receiving money damages from the infringer.

    The easiest way to protect your works is to group register them BEFORE publishing, selling, posting them to any social media sites including Facebook, Instagram, YouTube, etc. As of November 2015, the current cost to register a group of un-published works (more than one work in a deposit) is $55. On the other hand, it’s $35 to register a SINGLE work (where there’s a SINGLE author whose work is NOT part of a work-for-hire project).

    If your work is infringed, it’s recommended to retain an intellectual property (copyright) “litigator” (trial attorney) vs. a transactional attorney. Of importance, the first thing your IP attorney will ask you when you call crying about your infringement, “Did you timely register your work with the US Copyright Office?” A timely registered copyright will provide you with LEVERAGE to encourage the infringer to settle quickly.

    Kathryn also writes,

    “Regardless, copyright registration is still a solid business practice for artists.”

    This is so true! It’s sad that way too many artists operate without any real business and legal skills.

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