Photographers’ Pro-Cariou Arguments Are Overblown
You’ve probably seen Sergio’s post here recently about the pro-Cariou amicus brief filed by several groups, including the American Photographic Artists, the American Society of Journalists and Authors, the American Society of Media Photographers, the Graphic Artists Guild, the National Press Photographers Association, the Picture Archive Council of America and the Professional Photographers of America. While I have some sympathy with the concerns of these groups, which I’ll call the “Photographers,” I think they are overblown. These are my thoughts on their amicus brief:
In Part B, the Photographers lump every secondary use of photographs into a single, undifferentiated market for licenses. But the market for licenses to use a photo in a magazine advertisement versus the market for licenses to use a photo in a unique work of art (if such a market actually exists or should exist) are certainly different enough to justify different fair use outcomes in most cases. The Photographers’ argument assumes that the latter market exists, without acknowledging how trivial it would be compared to the market for billboards, magazine ads and other core commercial uses. They also ignore the fact that if a market to license images for use in unique works of art were to exist, then artists would almost always lose on the fourth fair use factor, damages to the copyright owner’s market, making a finding of fair use nearly impossible in most cases.
In Part C, the Photographers cite the requirement for a difference in the meaning of “transform” as used in the definition of “derivative work” and as used in the first fair use factor without suggesting in what way the two senses of the word do or should differ. They say that the pro-Prince amici would allow for “transformation” whenever secondary works “have new meaning,” and then suggest that this would collapse the two senses of “transform” into the same thing. We cannot, of course, let this happen because one sense of “transform” must describes an exclusive right of the copyright owner to prepare derivative works while the other sense must open the door to the fair use exception to the copyright owner’s exclusive rights. (Strangely, the Photographers make this argument even after citing the following standard for fair use transformation on Page 14: “whether [the appropriated work] essentially repeats the old or whether, instead, it ‘transforms’ it by infusing it with new meaning, new understanding, or the like,” which sounds pretty much the same to me as the pro-Prince amici’s “new meaning” test as the Photographers have described it.) But the Photographers tell us neither why adopting this standard would leave us with only a single, collapsed definition of “transform” nor how we should understand the two senses of the word in order to make sense of them. If you’ve followed me this far, I’m impressed with your patience. To me, the fact that courts have to deal with this “transformative” conundrum proves what a poor decision it was for the Supreme Court to adopt a fair use standard that is patently inconsistent with the statutory definition of “derivative work.”
The Photographers’ point in Part C proves too much. If ZigZag rolling papers came out with magazine ads featuring slightly altered Cariou photos of Rastas, I have no doubt that a fair use defense would fail. Once again, the Second Circuit is tacitly applying a general rule that I’ve been harping on for some time now–when a copyright infringement claim involves a secondary work that is a unique object that does not serve as a market replacement for the original, courts should almost always find fair use.