PHOTOGRAPHY AND THE LAW

Photographers Band Together to Protect Work in ‘Fair Use’ Cases

The United States Court of Appeals for the Second Circuit reasoned that as long as Mr. Prince’s work transformed the images into original art, he was not violating anyone’s copyright.

Photographers are pushing back against that interpretation. Several membership and trade organizations have banded together recently to press their cause in Congress and the courts.

More than half a dozen groups, including the National Press Photographers Association, Professional Photographers of America and the Picture Archive Council of America, have joined together to submit a friend of the court brief to support the photographer Patrick Cariou, after part of his case against Mr. Prince was sent back to a judge for reconsideration.

Mr. Prince, who is known for reworking imagery created by others, cut out pictures from Mr. Cariou’s book on Jamaican Rastafarians, titled “Yes Rasta,” and then painted them or juxtaposed them with other images. When sales of these works at Gagosian Gallery in 2008 topped $10 million, Mr. Cariou sued.

Mr. Prince, backed by much of the fine-arts establishment, argued that he did not break the law because of what is known as the “fair use” doctrine, which allows artists — and others — to use copyrighted work in certain circumstances. Mr. Prince said he was covered by fair use because he had transformed the originals into something new.

The Warhol Foundation, filed a brief on Mr. Prince’s behalf, arguing  that by merely changing the context — placing a work in a museum or a gallery — an artist can transform someone else’s creation.   

Mr. Prince’s testimony that he had not intended “to create anything with a new meaning or a new message” was irrelevant. In November, the United States Supreme Court refused to review the case.

Now it was the photographers’ turn to panic. “Fair use started out as an exception to copyright law,” Mickey H. Osterreicher, general counsel for the National Press Photographers, said. “Now it seems that copyright is the exception to fair use.”

Hillel Parness, an author of the photographers’ brief in the Cariou case, said the point was to remind the court that even under the recently expanded interpretation of fair use, there are limits. Copyright holders have the “exclusive” right to make derivative works, which are defined as those that are “recast, transformed or adapted” from the original. Harry Potter, for example, is J. K. Rowling’s property, whether in the form of a book, a movie or a sequel.

James Silverberg, an intellectual-property rights lawyer who has worked with American Photographic Artists, argues that if artists want to use someone else’s creation in their work, they should pay a fee. A movie based on a book may rake in millions, but the author is still compensated for her contribution, he said.