Friday, September 22, 2023

Harvard Law Review Note Criticizes Second Circuit’s ‘Cariou’ Opinion

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File this under “Great Fucken Argument.”

Here’s a Harvard Law Review note that applies a diplomatic but devastating critique to the Second Circuit Court of Appeals’ Cariou v. Prince opinion.

I won’t bore you with a recap of the case (you should know it by now), but suffice it to say that this note takes a unique perspective on how the Second Circuit went off the rails when they relaxed the definition of “transformativeness.” In brief, the note analyzes how the Second Circuit blurred the previously established line between transformativeness and derivative, yet did “not provide an aesthetically neutral method of distinguishing between the two.”

The tension between derivative and transformative works is not new, but until Cariou, courts had resolved the tension between them by drawing an outer line at whether a work serves a different purpose than the original. By adopting a “same purpose, different meaning” definition of transformativeness, the Cariou court ventured beyond this outer boundary and did not erect another in its place. In other words, there is no clear, workable distinction between the amount of new expression sufficient for copyright protection and the level of new expression, meaning, or message sufficient to render a piece transformative under the Cariou test.

The note also raises the concern that I’ve raised before, that what the Cariou opinion did was to allocate to a judge the role of art critic (essentially arbiters of taste).

…the definition the [Second Circuit] … adopted is still the broadest of any circuit court yet — and is in direct tension with the statutory definition of derivative works. Though any definition of transformativeness necessarily will remove from infringement some number of works that otherwise would have been subject to the copyright owner’s rights, there must be some way to distinguish the two categories if the derivative work right is to have meaning. This problem is particularly acute in appropriation art, a genre that uses prior works as raw material to create new expression. Without a clear standard, judges may be likely to decide according to taste, and artists will have no principled method of conforming their actions to the law ex ante. Future courts would be wise to clarify the contours of these two overlapping doctrines, lest appropriation art be left in uncharted waters, subject to the shifting winds of judges’ artistic appraisals. [bold added]

I think it is safe to say that the Cariou opinion has — in actuality — hurt appropriation artists more than helped them, so a celebratory vibe is a bit too premature. As the note appropriately concludes, “[b]ecause outcomes based on value judgments are difficult to predict, artists will struggle to conform their actions to the law ex ante, and the ultimate outcome may be a chilling effect on the creation of cultural products.”

Yes, a more workable fair use standard for appropriation art is needed.


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