Is the Use of These Calvin & Hobbes Images Fair Use, Post-Cariou?
Well, we know the artist’s intent no longer matters, so how the hell are we supposed to analyze this new copyright infringement situation? Under the Cariou test it seems to us that you’d have to put the original Calvin & Hobbes characters next to these appropriated Calvin & Hobbes characters, and ask yourself whether they look different. Do they? Not really. Not under the post-Cariou standard. Take a look at the Prince appropriation of the Cariou below this Calvin & Hobbes image, which the Second Circuit remanded back to Judge Batts so that she could better assess whether it’s fair use or not (because the Second Circuit couldn’t, as a matter of law, figure out). Does the addition of a guitar and some blue paint “visually transform” the painting, in a way that a “reasonable observer” could confidently decide?
So although many in the art world and the art law world are championing the latest Second Circuit flop, what they should be asking is how the hell are we supposed to analyze fair use post-Cariou. This isn’t about chilling speech; it’s about knowing a good thing when you have it. The pre-Cariou test elaborated by Judge Batts simply asked that we question the appropriating artist on what her purpose was in appropriating copyrighted work. Now that that fish has been gutted to the bone, all we art lawyers are left with is uncertainty and guess-work. And when a client is paying us to give some kind of educated analysis, and all one can say is “I really don’t know,” that doesn’t make for good business.