Warholisation was explored in the previous column, in which reported on the US Supreme Court’s landmark ruling in May 2023 that Andy Warhol’s appropriation of a photographer’s copyright image in his artwork, used without prior permission, was a breach of the photographer’s copyright (Artlaw AM468). Over subsequent summer months in the US, this decision has fuelled legal and cultural criticism, mostly focusing on its impact on artists: they may now be inhibited, even deterred, from using other artists’ pre-existing images.
Such concern reflects an abiding anxiety of many artists that they may, consciously or not, incorporate into their practices all or part of other artists’ works. Artists often ask their lawyers: ‘What am I allowed to use, and is there any reliable guidance?’ Reliable guidance is found only in copyright legislation and case-by-case court decisions.
In legal jurisdictions following mainland Europe’s civil law doctrines, copyright lawsuits tend to be decided by courts adhering closely to the letter of legislation, which affords little room for judicial flexibility. However, a revolutionary ruling in 2015 by the Supreme Court in France – traditionally the exemplar of reasoning in civil law jurisdictions – perhaps signalled a change of judicial approach that other civil law jurisdictions may follow.
In that case, a Paris-based artist included in his paintings photographic images appropriated from a fashion magazine, which he painted blue. A fashion photographer, the copyright owner of the appropriated images, sued the artist for violation of his copyright. The lawsuit, processed through lower courts and appeals to the Supreme Court, ruled in the artist’s favour: Article 10 of the 1953 European Convention on Human Rights – fundamental right to artistic freedom of expression – overrode the claims of copyright infringement.
Many jurists view this landmark decision, emanating from the jurisdiction that spawned modern civil law frameworks around half the world, as heralding the possibility of a flexible judicial approach that could favour an artist’s appropriation. Perhaps such judicial possibility may seem fair to artists, but it does not offer them reliable guidance.
In jurisdictions following Anglo-American common law doctrines – effectively English-speaking nations – copyright legislation does provide judicial flexibility. US copyright legislation permits use of a copyright-protected work, without the copyright owner’s prior consent, so long as such use is fair: the so-called fair use defence.
To determine whether a particular use is fair, the US copyright statute sets out the following four factors courts must weigh:
- The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use on the potential market for or value of the copyrighted work.
The appropriator has the legal burden of satisfying a court that at least one fair use factor applies to the appropriation in question. In the Warholisation case, the Andy Warhol Foundation’s lawyers contended that the purpose and character of use of the photograph was the most important factor, and weighed in favour of fair use because Warhol’s silkscreen image of the photograph had a new meaning or message that made the use transformative, in the fair use sense.
However, in the court’s judgment, whether a work was transformative did not turn merely on the stated, or perceived, intent of the artist. Nor on the meaning or impression that a critic or a judge drew from the work; otherwise, copyright law might recognise any alteration as transformative. This strong and clear statement is probably what fuelled recent criticism and concern in the US. Perhaps the Supreme Court might fairly be criticised for not taking the opportunity to hand down constructive guidance to artists on fair appropriation practices.
In the UK, appropriators of other artists’ pre-existing work have the legal right to do so if their taking fits squarely within at least one of several specified ‘permitted acts’, and some acts are permitted only if they are also ‘fair dealing’ for specific purposes, including: private study; criticism, review, quotation and current news reporting; caricature, parody and pastiche; and for the purpose of non-commercial research.
Whether a purpose is fair requires a court to assess many possible factors that, unlike the US, are not enacted in the UK copyright statute, but have been developed by courts deciding fair dealing cases over many decades. Such decisions offer loose judicial guidelines as follows.
- The word ‘dealing’ is deceptive and connotes some form of commercial transaction, which need not be the case; and perhaps a better word would be ‘practice’ (US: purpose and character of the use).
- The extent to which the appropriator’s use competes with commercial exploitation of the copyright-protected work by its copyright owner (US: effect of use on the potential market).
- Whether the copyright-protected work was unpublished, if so whether the appropriator stole or otherwise purloined the image (US: nature of the copyrighted work).
- Where a part of the copyright-protected work has been appropriated, the qualitative importance to that work of what has been appropriated (US: amount and substantiality of the part used).
- With a nod towards the European Convention on Human Rights, courts may consider the appropriator’s fundamental right to artistic freedom of expression.
- Fairness is an objective test: whether a fair-minded and honest person would have dealt with the copyright-protected work in the way the appropriator did, for the relevant purpose.
Such judicial considerations surely indicate that UK copyright law gives artists legal rights to appropriate into their own artworks all or part of other artists’ pre-existing artworks without permission so long as they do so fairly within the privacy of their own studio practices; but that it may be unfair if such privately made artworks are then used beyond their studios in an art marketplace.
In the Warholisation decision, commercial use of the appropriated photograph was the decisive factor: the copyright owner was a professional photographer, Lynn Goldsmith, whose livelihood relied on selling use of her photographs, one of which Warhol had appropriated into his artwork, which was used for commercial purposes without permission (when Condé Nast licensed the artwork from the Andy Warhol Foundation for the cover of a Prince tribute magazine in 2016, without reference to Goldsmith). In so deciding, the court rejected the so-called ‘transformative use’ fairness defence as being the factor of prime importance, which in recent decades had become a ‘get out of jail free’ card in the minds of many would-be appropriators and their defending lawyers.
This judgment now sets a supreme legal precedent that all lower-ranking US courts must abide by, and which undoubtedly fuelled much heated concern expressed in recent US summer months.
© Henry Lydiate 2023