Fair Use & Appropriation Art

7 You Be the Judge: Teaching Students Fair Use by Making Their Own Rulings

Molly Schoen

Intended Audience: Undergraduate students in studio art, graphic design, and related fields.

Session Length: 45-60 minutes

Code Section: Making art

ACRL Frames: Information has value, Scholarship as conversation

Abstract

This instructional session aims to increase students’ awareness of copyright and fair use as it applies to their career paths. It engages students’ interest by asking them for their own rulings in well-known fair use cases centered in the arts. To begin, an overview of fair use is given, along with a description of section “Three: Making Art” of the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts. Next, an overview of a case is presented, along with images of the works in question. Students are asked how they would rule on the case before the actual outcome of the trial is revealed. This is repeated for two more cases. For the last portion of the session, students are given the chance to reflect. How does fair use enable and/or hinder creative work? The learning outcomes for this session are for students to understand what fair use is and how widely it may be interpreted, and to recognize how copyright affects their own creative works.

Learning Objectives

  • Students will be able to recognize what kinds of work are copyrighted
  • Students will be able to explain the four factors of fair use and their limitations
  • Students will be able to analyze relevant examples from a fair use perspective

Materials

  • Computer with internet connection
  • Projector and screen
  • Copies of the CAA Code of Best Practices in Fair Use for the Visual Arts, specifically Section 3 on page 11, “Three: Making Art.”

Lesson Plan

Lecture – Provide a brief overview of copyright and fair use

What gets copyrighted? In the US, any original work is automatically copyrighted to its creator or its commissioner (e.g., an ad agency), even if it is unfinished or unpublished.

What is the public domain? The public domain refers to works that are out of copyright and free to use by anyone for any purpose, including commercial. In general, works made before 1923 are in the public domain, as are many government publications (such as NASA photographs).

What is fair use? In the US, fair use is a legal doctrine that allows for limited copying of copyrighted material without obtaining permission from the owner of the work used. Fair use is designed to promote scholarship and creative expression. It allows for criticism, reviews, parodies, and more.

How fair use works: there are no exact rules to determine if something constitutes fair use or not. Fair use language is purposefully vague to leave it open for interpretation, as creative expression takes many forms. While there are different factors of fair use to be considered, in this class we will focus on those that pertain most directly to art and other creative fields. These can be found in “Three: Making Art” of the CAA’s Code of Best Practices in Fair Use for the Visual Arts.

The following examples favor fair use:

  • using material for educational purposes or personal study
  • transforming the original work in a way that adds new meaning
  • using only a small portion of the original work
  • being able to articulate the use of copyrighted material by the artistic objective of the new piece
  • citing the source of the original work

The following do not favor fair use:

  • commercial or for-profit use
  • transforming the original in a way that does not add new artistic meaning (such as only changing the medium, e.g., making a lithograph by copying a photograph without altering the content of the image)
  • copying an entire work or a small but significant part of the work (e.g. a pivotal scene in a film)
  • implying that incorporated elements of an existing work are original to the artist copying them
  • causing a loss of value or market for the original work

Again, these are not the only situations to determine what favors or does not favor fair use, rather they are the elements most relevant to those making art.

Emphasize the transformative factor. For artists, this may be the most crucial element in determining whether use of copyrighted work is fair or not. See Appendix A of the Code.

Review the case Kienitz v. Sconnie Nation LLC

Display on a projector screen side-by-side images of the two works in question: Michael Kienitz’s photograph of Madison, Wisconsin mayor Paul Soglin and Sconnie Nation’s “Sorry for Partying” tee-shirt, which features an image of Mayor Soglin. These images are easily found online by doing a Google Image Search for “Kienitz v Sconnie Nation”.

Present class with the background of this case. Madison, Wisconsin hosts an annual event called the Mifflin Street Block Party. In 2014, Mayor Soglin attempted to shut down the Mifflin Street Block Party, on the grounds of excessive drinking that had occurred in years prior. As a response, Wisconsin apparel brand Sconnie Nation created and sold tee-shirts with an image of the Mayor’s face and the words “Sorry for Partying.” The image of the mayor was a photograph taken by photographer Michael Kienitz; Sconnie did not seek permission to use the photo before printing it on their tee-shirts. Kienitz then sued for copyright violation.

Review this case through relevant factors of fair use within the Code, section “Three: Making Art”.

  • Is the use of the photo on the tee-shirt transformative? To what extent? Was it altered beyond a change of medium (photograph to screen printed shirt)?
  • Has Sconnie Nation generated new artistic meaning in using Kienitz’ photo?
  • Is the use of the photo justified by the artistic objective of the shirt?
  • Did Sconnie Nation credit or cite Kienitz? Did they imply the photograph was their own original work?
  • Does Sconnie Nation’s use of the photo on their tee-shirts diminish the selling potential or value of the original photo?

Ask students to come up with their own ruling, weighing the factors both for and against fair use.

After a verdict has been decided upon, reveal the actual outcome of the case: Kienitz did not claim that the tee-shirt disrupted any plans to license the photo for similar uses, nor did he claim that the value for the original photograph was diminished. The court found that, in congruence with the transformative factors of fair use, “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.” Further, the judge found that the shirt was designed as political humor, which is also covered by fair use.

Conduct a brief follow up discussion. Are students surprised by the outcome?

Repeat step two for another case: Gaylord v. United States

Display on a projector screen side-by-side images of the two works in question: Frank Gaylord’s sculpture “The Column,” and the 37-cent postal stamp that depicts a photo of “The Column” covered in snow. These images are easily found online by doing a Google Image Search for “Gaylord v. United States.”

Present class with the background of the case. “The Column” is a sculpture made by Frank Gaylord for the Korean War Veterans Memorial. A photographer named John Alli later took a photograph of the sculpture covered in snow and sold the rights to the photograph to the United States Postal Service for $1,500. In 2002, the USPS released a stamp with Alli’s photograph of Gaylord’s sculpture. Gaylord then sued the USPS for copyright infringement because they did not seek permission from him to use his work on their stamp. The Postal Service’s defense was that Alli’s photo was a derivative work in its own right and thus consent from Gaylord was not required.

As with Kienitz v. Sconnie Nation LLC, review this case through the factors of fair use and the Code, section 3.

  • Is the use of the sculpture in the stamp transformative? To what extent? Was it altered beyond a change of medium (sculpture to photograph)?
  • Was use of this sculpture justified in the artistic objective of commemorating the Korean War? Was new meaning given to the sculpture from the stamp?
  • Did the USPS credit or cite Gaylord for his work? Did they imply the sculpture was a work of Alli’s?
  • Does the Postal Service’s use of the sculpture diminish its potential market? Did they generate significant income from using this sculpture?

Ask students to come up with their own ruling, weighing the factors both for and against fair use.

After a verdict has been decided upon, reveal the actual outcome of the case: the Federal Circuit court found that the USPS’s use of “The Column” was not transformative and therefore the government was liable for copyright infringement. Since “The Column” was not a joint work by Gaylord and Alli, the Postal Service should have also obtained permission from Gaylord before publishing the stamp.

Conduct a brief follow up discussion. Are students surprised by the outcome?

Repeat step two for another case: Cariou v. Prince

Display on a projector screen side-by-side images of the two works in question: one of Cariou’s original photographs from Yes, Rasta and a corresponding copy by Richard Prince, such as “Graduation.” These images are easily found online by doing a Google Image Search of “Cariou v Prince”.

Present class with the background of the case. In 2000, photographer Patrick Cariou published Yes, Rasta, a book of his photos taken of Rastafarian culture in Jamaica. Canal Zone, a series of collages by artist Richard Prince, heavily incorporated Cariou’s photographs. Prince did not credit Cariou’s photographs in his work. The Gagosian Gallery in New York exhibited Canal Zone in 2008, with sales of the artworks amounting to over $10 million. Cariou then filed a copyright infringement suit against Prince.

As with Kienitz v. Sconnie Nation LLC. and Gaylord v. United States, review this case through the factors of fair use and the Code, section 3.

  • Has Prince transformed Cariou’s original photographs beyond a change of medium (photograph to collage)? To what extent?
  • Was use of Cariou’s photographs justified in Prince’s artistic objectives? Was new meaning generated by Prince’s collages?
  • Did Prince attribute Cariou’s original photographs? Did Prince imply the reproduced photographs were original to him?
  • Does Prince’s incorporation of Cariou’s photographs diminish the market or value for Cariou’s work?

Ask students to come up with their own ruling.

After a verdict has been decided upon, reveal the actual outcome of the case: In March 2011, the Southern District of New York ruled in favor of Cariou, finding that Prince’s works were, in fact, infringing. The court found that the works in question were not transformative, because the defendant did not make a claim that he was commenting on Cariou’s original photographs.

However, Prince appealed the case. The Second Circuit Court of Appeals reversed the initial ruling in 2013, finding that Prince’s collages were, in fact, transformative to a “reasonable observer,” which therefore qualified for fair use. They clearly stated that artworks did not need to comment on the works they were appropriating.

Conduct a brief follow up discussion. Are students surprised by the outcome? Does the law differ from students’ own beliefs about what is ethical in appropriation art?

Optional Section

Discuss the purposefully vague nature of fair use. Bring up the inherent difficulties that many artists face when going to court, that is, a lack of legal expertise and the high costs of legal counsel and fees.

Provide the following examples (or supply your own) of other ways artists have reckoned with their work being used without permission.

  • ShopArtTheft.com—An online store of items by independent designers that have been (allegedly) ripped off by major retailers including Zara, Gucci, and Target. The website has comparison images of the original works and very similar, mass-produced copies. Now available on the Wayback Machine: https://web.archive.org/web/20180112071116/http://www.shoparttheft.com/
  • Suicide Girls Re-appropriate Richard Prince—Prince’s “New Portraits” series, which exhibited at the Gagosian Gallery in London in 2015, consisted of framed prints of screenshots taken from other people’s Instagram accounts. Prince’s only transformation of the posts was the inclusion of his own comment at the bottom of each photograph. One of Prince’s prints, taken from the Instagram page of the burlesque group Suicide Girls, had a price tag of $90,000. Suicide Girls responded not by taking him to court, but to “re-appropriate” their same Instagram post and sell reproductions of it for $90, with all proceeds going to charity.

Are these examples effective ways of handling copyright infringement allegations while avoiding the court system? Why or why not?

Discussion

Think of a piece you made recently, or one of your favorites, and imagine an example of a fair use of that work.

As creators, how would you feel if someone used your work without permission or attribution? What might you do about it?

Now put yourself in the role of an appropriator. If your art does not incorporate copyrighted elements, imagine that it does. Do you feel that fair use laws would help or hinder your creative expression? Would you be more hesitant or more empowered to use others’ work now that you have an awareness of fair use?

Reflection

I first devised this lesson after being invited to guest lecture for the Art and Ethics class at the Fashion Institute of Technology (FIT). This course is offered as part of the Art History and Museum Professions (AHMP) undergraduate program, but many students in the class were majoring in art and design-related fields.

Faculty often lament that many students are ill-equipped to find and use visual media effectively. In other words, they are not very visually literate. Because students at FIT are preparing for careers that rely heavily on visual materials—from seeking inspiration to selling their own work—it is essential that they are aware of fair use. Having even a basic understanding of fair use as it relates to making art can enable students to reach their fullest potential as artists, by feeling confident in knowing what forms of appropriation are acceptable and also by knowing what rights they have over their own work.

The nature of social media sites, which most students use daily, also brings up many issues in regards to intellectual property. Typical social media behavior includes re-posting other people’s content with just a few taps on one’s phone. “Sharing” these copyrighted works is encouraged, but giving credit to the original creator is not. Students often unknowingly infringe copyright on apps like Instagram and Twitter without repercussion, except perhaps the rare occasion of being asked to give credit or take something down. But in the classroom, not attributing others’ work may result in a lower grade or even a plagiarism investigation.

I have given many one-shot sessions on image research and visual literacy before. In my experience, students are not exactly thrilled to learn about copyright and fair use. The ambiguous nature of copyright along with its complicated legal language make it a difficult subject for many to comprehend. The best way I’ve found to make the complexity of fair use easier to understand is to use case studies involving familiar artists, television shows, news organizations, etc. as examples. Presenting side-by-side, images of the works in question quite literally lets me “show, not tell” the issues of fair use surrounding a given case. Asking students to play judge and come up with their own ruling first allows for them to think critically about how fair use factors into both the plaintiff’s and defendant’s arguments. It is also, of course, much more engaging than simply listening to an instructor lecture about the cases.

In the Art and Ethics class, I was fortunate to have an attentive, engaged audience. This is probably because the students were upperclassmen and were either taking the class towards their major or had selected it as an elective. In either case, they enrolled in the class with a genuine interest in the subject matter. Other classes have been a bit more challenging to engage, but I have found that in most cases, explaining how copyright factors into artists’ careers, is enough to generate at least a basic awareness and conceptual understanding of fair use.

Other cases

Alternate court cases can be used in addition to or in place of the three discussed in this lesson plan. Some other possible options are:

  • Fairey et al v. The Associated Press – a dispute over whether the image of Barack Obama used for artist Shepard Fairey’s iconic “Hope” poster was taken from an AP photo, and whether or not his adaptation could be considered fair use.
  • Reiner v. Nishimori – photographer T.C. Reiner created a stock photo called “Casablanca” in 1997. An art student in 2008 used “Casablanca” in a mock ad for a class assignment, and posted the resulting work publicly on his Flickr page. Reiner sued the student and the university for copyright infringement.
  • Jersey Media Grp., Inc. v. Pirro – North Jersey Media Group owns a well-known photo of 9/11 showing firemen raising the American flag at the ruins of the World Trade Center site. This photograph, in an image juxtaposed with a World War II photograph and the hashtag #neverforget, aired on the Fox News Network’s show Justice with Judge Jeanine. NJMG claimed copyright infringement over Fox’s use of the photo.

References

  1. Cariou v. Prince, No. 11-1197 (2d. Cir. 2013). Retrieved from https://law.justia.com/cases/federal/appellate-courts/ca2/11-1197/11-1197-2013-04-25.html
  2. College Art Association. (2015). Code of Best Practices in Fair Use for the Visual Arts. College Art Association. Retrieved from http://www.collegeart.org/pdf/fair-use/best-practices-fair-use-visual-arts.pdf
  3. Gagosian Gallery. (2008). Richard Prince Canal Zone November 8 – December 20, 2008. Retrieved from https://www.gagosian.com/exhibitions/november-08-2008–richard-prince
  4. Gaylord v. United States, No. 14-5020 (Fed. Cir. 2015). Retrieved from https://law.justia.com/cases/federal/appellate-courts/cafc/14-5020/14-5020-2015-02-04.html
  5. Kennedy, R. (2011, January 12). Shepard Fairey and The A.P. Settle Legal Dispute. The New York Times. Retrieved from http://www.nytimes.com/2011/01/13/arts/design/13fairey.html
  6. Kienitz v. Sconnie Nation, LLC, No. 13-3004 (7th Cir. 2014). Retrieved from https://law.justia.com/cases/federal/appellate-courts/ca7/13-3004/13-3004-2014-09-15.html
  7. Jersey Media Grp., Inc. v. Pirro 74 F. Supp. 3d 605 (S.D.N.Y. 2015). Retrieved from https://www.copyright.gov/fair-use/summaries/njerseymedia-pirro-sdny2015.pdf
  8. Prince, R. (2014). The Canal Zone Paintings. (Artist’s statement). Gagosian Gallery. Retrieved from https://www.gagosian.com/exhibitions/richard-prince–may-08-2014
  9. Reiner v. Nishimori, No. 3:15-cv-00241 (M.D. Tenn. April 28, 2017).
  10. Rosenthal, E. (2015, May 28). We Talked to the Suicide Girls About Richard Prince’s “Appropriation Art.” Creators, Vice Media. Retrieved from https://creators.vice.com/en_us/article/kbn35a/we-talked-to-the-suicide-girls-about-richard-princes-appropriation-art
  11. Shop Art Theft. (n.d.). Retrieved from http://shoparttheft.com/

License

Fair Use in the Visual Arts: Lesson Plans for Librarians Copyright © 2018 by Molly Schoen. All Rights Reserved.

Share This Book