Guest Post: The Most Interesting “Appropriation” Cases to Watch in 2016

By Talia Kosh

Once again, appropriation in art and entertainment is a trending topic, so here are my picks for the most interesting “appropriation” cases to watch in 2016. Appropriation is defined as “the action of taking something for one’s own use, typically without the owner’s permission.” Some of these cases are new, others will be heating up, but all of them involve an alleged taking of another’s creative product without permission.

1. “Blurred Lines” Can Make Things Expensive

As you might recall, Pharrell Williams and Robin Thicke sued the Gaye estate, seeking declaratory judgment that they did not copy Marvin Gaye’s song “Got to Give it Up” with their 2013 “Blurred Lines” single. In March, 2015, “Blurred Lines” was found to be a copyright infringement by and Defendants were ordered to pay $5.3 million and an ongoing royalty rate of 50% of songwriter and publishing revenue.

The Gayes are now leveraging their win to ask for more money- $2.66 million in attorneys’ fees and $777,000 in expenses, stating among other things, that the Thicke team “aggressively and strategically initiated this action” and because the Gayes “made a brave decision to fight when sued and to protect the copyright to one of the most iconic songs of all time…”

On Dec. 7, 2015, the Thicke team formally launched their appeal.[1] The Notice of Appeal lists February 24, 2015 as the trial date. Only the composition and not the sound recording was considered by the jury. However, Attorneys for Williams and Thicke contend that hours of testimony by a musicologist as to the similarity of the two songs’ sound recordings should not have been allowed to be heard by the jury. Especially considering that the jury did not get to actually hear the sound recording of “Got to Give it Up.”

2. Fan Film’s Crowdfunding Might Fund Litigation Instead

Paramount Pictures Corporation, v. Axanar Productions, Inc.

The many worlds of fanfiction and fanfare seem to keep going deeper, on one hand, allowing creators and owners to maintain a deeper relationship with a loyal fan base, but on the other, the relationship can also become…complicated. Any and all fanfiction and fan films are considered derivative works and therefore the owners and content creators can either allow them to proceed or prevent any and all such derivative works from being distributed.

For decades, Paramount and CBS have tolerated and even encouraged fans of Star Trek to create fan films and fanfiction, but recently the entertainment companies drew a line in the sand of what will and will not be tolerated in fan films.

On December 29, 2015, Paramount Pictures Corp. and CBS Studios, Inc filed suit against the fan film group, Star Trek Axanar for copyright infringement at a time that there has never been more fan production out there than there are currently in production today, including a plethora of Star Trek fan films.[2] Owners and creators often allow fan films, up to a point-the point around which the profit line is crossed.  When Axanar raised over $1 million in crowdfunding to produce the film, Paramount and CBS put their foot down. Filmmaker, Alex Peters, isn’t backing down, as he stated on social media, “it appears CBS know that Axanar is exactly what fans want, because they are trying to shut us down!…this DOES NOT deter us from what we are doing!”

Oh just wait for that injunction. Although, Peters says he has prepared for this and is willing to defend it, it’s going to cost him lots of those crowdfunded dollars. Unfortunately for Peters, there are downsides to having one of the biggest film projects in Kickstarter history. Peters reported having a meeting with CBS on the project, as “CBS has a long history of accepting fan films,” Peters told the entertainment site, The Wrap. But that’s before it looked like the film wouldn’t make money. Interestingly, there might be some legs to what Peters is saying if he can allege that Paramount and CBS knew about and authorized him (granted a license) to go forward with the film.

3. If You Can’t Beat Streaming, File A Class Action:

Spotify has a couple class actions against it, including one initiated by Cracker front man, David Lowery, alleging Spotify willingly and unlawfully reproduced and distributed compositions without obtaining mechanical licenses. Within two weeks of the Lowery suit, another class action was filed against Spotify.

As Spotify states: “When one of our listeners in the U.S. streams a track for which the rightsholder is not immediately clear, we set aside the royalties we owe until we are able to confirm the identity of the rightsholder,” the company wrote in a blog post shortly before the first lawsuit was filed. “When we confirm the rightsholder, we pay those royalties as soon as possible.”[3]

In the meantime, Spotify is talking with the National Music Publishers’ Association. (NMPA), and Spotify has announced plans to build a publishing administration system, which they hope will satisfy publishers and songwriters, allowing them to claim payments for monies owed. I smell settlement in the air, but it takes massive actions like this to create enough pressure to make steam that creates change.

4. Google Books Is A Great Way to Discover Books-except for all those missing pages.

In the case, Authors Guild v. Google Books, Inc.[4] the Authors Guild has asked the U.S. Supreme Court to overturn a federal appeals court’s rulings on transformative use, according to a petition for review filed Dec. 31. The future of fair use could hinge on this case. [5]

The Authors Guild has been fighting Google in court since 2005 over its mass digitization of library collections in order to create a database for full-text searching. The Authors Guild rightfully argues that there is a circuit split regarding fair use and specifically the “transformative use” factor. It’s often in times of circuit splits that the Supreme Court will take up a case.

Some of the questions presented in the Guild’s petition are:[6]

Whether, in order to be “transformative” under the fair use exception to copyright, the use of the copyrighted work must produce “new expression, meaning, or message,” as this Court stated in Campbell and as the Third, Sixth, and Eleventh circuits have held, or whether the verbatim copying of works for a different, non-expressive purpose can be a transformative fair use, as the Second, Fourth, and Ninth circuits have held; and

Whether the Second Circuit has erred in making “transformative purpose” a decisive factor, replacing the statutory four-factor test, as the Seventh Circuit has charged.

With a split in the circuits, the Supreme Court is the one in the hot seat.

5. Prince’s Newest Artwork: Graham v. Prince[7]

Richard Prince’s “New Portraits” exhibition in 2014 seemed to take the Second Circuit’s ruling in Cariou v. Prince and test every line and measure. In his newest works, Prince enlarged his screenshots of Instagram images after cryptically commenting on them and reprinting the images on 6-foot by four-foot canvases. In some cases, these “originals” sold for up to $100,000. It seemed to me this was an exercise for Prince in baiting numerous, mostly amateur artists or instagrammers to take him up on another trip on his fair use merry-go-round.  Many of them had creative reactions, reselling prints of Prince’s images or labelling themselves co-authors. (Prince commended these responses on his twitter feed). But on December 30, 2015, one of them finally bit on Prince’s “so sue me” bait. Except, this artist wasn’t an amateur. Professional photographer, Donald Graham, filed a copyright infringement suit against Prince for use of his work entitled, “Rastafarian Smoking a Joint” in his “New Portraits” exhibition. Rastas seems to be an ongoing theme with Prince’s litigation, making one wonder, did Prince foresee this?

Graham’s complaint argues that Prince went further in the “New Portraits” exhibit than he did with Patrick Cariou’s images in that there were basically no alterations of his original photograph.

Well I hope the Second Circuit gets to this one before the Supreme Court gets to Authors Guild v. Google so we can see this play out. I’m especially curious as to how the Second Circuit would rule as to the size and comments of Prince’s secondary work. As the Second Circuit noted in Cariou, it was notable to them that “Prince’s works were also the several times the size of Cariou’s classic photographs,” indicating that even a difference in size might be fair use. Prince’s comments arguably alter the message, meaning and expression (I know many of you are screaming in disagreement with me), and the Second Circuit seems to love Prince, so he’s got that going for him.

But the most fascinating piece of this I’ve discovered is how Prince’s foray into social media has transformed his largely anonymous nature-now giving us his trails of detailed thoughts on his intent behind “New Portraits” in his online blog.

Even in Cariou we could see Prince giving evasive testimony regarding his intent and he’s had a history of evading any perceived identity prior to “New Portraits.” The Second Circuit agreed with him on the intent matter and said intent doesn’t matter (very much), taking a very post-modernist approach to looking at the 4-corners of the work and asking whether the work would be “reasonably perceived” by a “reasonable observer” to alter the original with “new expression, meaning or message. I’m wondering whether any of Prince’s stated intent will matter with regard to his “New Portraits.”

In Prince’s blog, he’s been publishing long trains of thought on the process and subject of his Instagram images, and also his other appropriations, such as the Marlboro Man ads and Salinger’s “Catcher in the Rye.” Prince writes a lot about his comments on other people’s social media posts.  He calls it “Birdtalk.”

“I use to Bird in the early nineties for Purple Magazine and birded in my first catalogue for Barbara Gladstone in ’87.” “Short sentences that were funny, sweet, dumb, profound, absurd, stupid, jokey, Finnegan’s Wake meets Mad Magazine meets ad copy for Calvin Kline. Think Dylan’s Tarantula. Then think some more and think Kathy Acker’s Tarantula. Sometimes I write down the first sentence that starts off my favorite novel.” “Some of the language came directly from TV. If I’m selecting a photo of someone and adding a comment to their gram and an advertisement comes on… I use the language that I hear in the ad. Inferior language. It works. It sounds like it means something.”

“There are things you can do to a photograph now that you couldn’t do in ’83.” “ How was it called back then? Sampling? “

“On the gram. I was just asked why do I like Instagram. I said, “Because there’s rules. And if you break the rules, you get kicked off.”

“I quickly recognized the device was a way to get the lead out. If Twitter was editorial… then Instagram was advertising. …When you screen save an Instagram image you can get maybe three, four comments in the save if you include the persons “profile” icon that appears on the upper left of the page. I decided early on I wanted the persons icon to be part of the save. But what else could I save?” “Whatever I did, I wanted it to happen INSIDE and before the save. I wanted my contribution to be part of the “gram.” I didn’t want to do anything physical to the photograph after it was printed.”

“Everyone is fair. Game. An even playing field. They had no history, no past, no name. A life of their own. They’ll learn. They’ll find their own way. I have no responsibility. They do.”

“Trolling.’ If you say so. I never thought about it that way. The word has been used to describe part of the process of making my new portraits. I guess so. It’s not like I’m on the back of a boat throwing out chum.’We’re going to need a bigger boat.’”

“For now, all I can say is… they’re the only thing I’ve ever done that has made me happy.”

I know I’m obsessed with Prince and for that I’m very sorry. But no one else is challenging the system the way he is and there’s art in that…maybe.

6. Jeff Koons Wants To Play (Pay?), Too

You gotta play to win in fair use. Do you think Prince is making appropriation artists braver or is Jeff Koons a glutton for litigation with his 6^th lawsuit? Either way, Koons is in it to win it, being sued by photographer Mitchel Gray for the use of his photograph in an artwork without permission. In this case, Gray took a photograph of a couple on the beach for a Gordon’s Gin ad in 1986. As part of his series Luxury and Degradation, Koons reproduced the photograph in its entirety and most of the advertisement. Ads can be tricky because it’s easier to argue (in the Second Circuit, at least) that there’s been a transformation of purpose from ad to art.

Ok, so not the most interesting case of 2016, but it’s Koons. I think he wants another shot after Roger v. Koons was overruled by Cariou.

7. Some Germans Think They Can Take Works Out of the Public Domain

In 2015, the Reiss Engellhorn Museum (REM) in Mannheim, Germany, filed a lawsuit against the Wikimedia Foundation for making high-resolution images of public domain artworks from its collection, which are available for download. This issue was decided in the United States in  Bridgeman Art Library v. Corel Corp., which ruled that exact photographic copies of public domain images are not protected by copyright since they lacked originality. It matters not how much “sweat of the brow” and “skill” someone puts into rendering photographic copies of a public domain work. Apparently, this issue has not before been decided in Germany.   The German museum asserted that Wikimedia hired a photographer whose time and skill now qualifies these images as new works with a new copyright term. If their court gets this wrong, it could cause quite an international stir.

I’ll keep you posted on the happenings in these cases throughout 2016. Happy trolling!

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Tags: appropriation, Art Law, artlaw, Copyright, intellectual property, Litigation, talia kosh