Friday, September 24, 2021
 

2nd Circuit delivers devastating blow to appropriationists

Images at issue.

We conclude … that all four factors favor [Lynn] Goldsmith and that [Warhol’s] Prince Series works are not fair use as a matter of law. We further conclude that the Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law.

Here’s my take. The 2nd Cir ruled that if the secondary work serves the same purpose as the first, in our case, both as works of visual art, and if the dominant component of the copyrighted works remains in the secondary work, then there is no transformativeness.

This ruling is devastating to some art folk for at least three reasons. One, it makes clear that judges should not play art critic, i.e.- not read into the work, by which I mean not read into it with preconceived notions of who is and isn’t a successful artist, as well as what an artwork means given external sources.

Two, the opinion makes clear that so-called “conceptual appropriation art” is not in and of itself transformative. What do I mean by “conceptual appropriation art”? It’s an artwork where the secondary work remains both recognizably deriving from and retaining the essential elements of the copyrighted work, and where art theory and art criticism suffice to make the secondary use “critical.”

Presumably, under the 2nd Circuit, an artist copying a copyrighted photograph corner-to-corner and adding only a simple element to the secondary work would be infringing the copyright holder’s copyright, even if the appropriationist argued that the secondary work “critiqued post-techne notions of the decentered post-colonial subject through Kantian and Hegelian narratives of the oppressed individual(s) as woven through the capitalist fabric of the Pez dispenser and the National Football League.”

The final punch in the gut is to those who believe in what the court calls, “celebrity-plagiarist privilege,” where “the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labor of others.” The fame or non-fame of the pilferer is not an issue within fair use.

A major question art historians and artists will have to grapple with now, certainly in the New York artworld (within the 2nd Circuit’s jurisdiction), is whether conceptual appropriation art has run its course. According to the Second Circuit, it has.

Opinion here. Donn Zaretsky has his thoughts here.

 

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