Fair Use for the Rich and Fabulous?

Validation is not necessary, but it certainly does feel good. I’ve written before about the Cariou v. Prince appellate decision, and how the Second Circuit in that case pretty much handed a victory to Richard Prince based on socio-economic factors and bunk aesthetic distinctions.

Well, two fellows at Stanford Law School, Andrew Gilden and Timothy Greene (“the fellows”), have written a law review article precisely on the issue of the impact of celebrity culture on fair use.

Although the fellows agree with the Cariou outcome, they do note a very important observation: “In shifting towards an audience-focused inquiry, however, it is important that the new boundaries of fair use are not set by socioeconomic status or judicial distinctions between high and low art.”

The fellows compare the Salinger v. Colting and the Cariou v. Prince opinions, highlighting the impact that celebrity culture had on the outcome of each of these two fair use cases.

Cariou and Salinger suggest that wealth and fame may entitle an author not just to a robust legal defense, but also to a privileged position in harnessing copyright’s rhetoric. The famous artist understandably has greater ability to influence her potential audience than the unknown artist, but the “reasonably perceived” transformative use that results does not happen in isolation. Originality in copyright depends on a plentiful supply of source material, and regardless of whether the sources are facts, ideas, the “public domain,” or copyrighted works, the “raw material” designation has the potential to fall disproportionately on less-affluent creators and laborers. [last italics added]

Their argument goes to the heart-of-the-matter. Those artists that are not as “well-known” or that opt to side-step the gallery system will in essence become the producers of raw materials for those artists who have the financial resources, marketing savvy, branding, and major gallery representation. This is not surprising. What is surprising–bordering on shocking–is how many visual artists, critics, curators and the like that consider themselves the 99% actually side with Richard Prince. This goes beyond a desire to possess cultural capital (i.e.- siding with Prince equates to understanding contemporary art), it goes to a major weakness in liberal ideology: property ownership is “bad” until you have enough financial resources to create and own any kind of property, tangible and intangible.

I’ll let the fellows sum it up. “Cariou makes fair use fairer for some, but there’s a real risk its virtues won’t be available to all.”