Title

Visual Appropriation Art, Transformativeness, and Fungibility

Publication Date

Spring 2020

Document Type

Article

Abstract

As an intentionally flexible doctrine, fair use in copyright has a long history of ambiguity and criticism. While courts have developed various standards and considerations to give fair use some shape, key decisions have generally done so in the context of textual material. Likewise, the examples in Judge Leval’s seminal work on fair use involve textual material. His argument to assess the first fair use factor based on transformativeness has won the day. But in contrast to the textual examples, interpreting the meaning and transformation of visual works is rife with danger.

Recent appropriation art cases exemplify this danger and demonstrate a significant unbalancing of fair use. Specifically, as they have evolved, appropriation art cases strongly weigh in favor of finding fair use. These cases suggest that transformativeness is improperly used as a nearly dispositive determination, often minimizing the other fair use factors. Second, courts are evaluating the expression, meaning, or message of both visual works when such a determination is inherently even more problematic than interpreting written text, as reinforced by current principles of interpreting contemporary visual art. Further, the latitude created by visual art interpretation opens the door for other, potentially less appropriate factors to influence the transformativeness assessment. Finally, transformativeness itself is only one facet of the first fair use factor and should be balanced by considering the purpose of the original work’s material for the secondary artist.

In many ways, the evolution of these appropriation art cases is the canary in the coalmine—they warn of the potential for overly expansive fair use application across the creative arts spectrum. An unbalancing of fair use undermines the value of copyright rights and could therefore undermine the creation of new creative works. While maintaining flexibility is important, this Article proposes some methods to rebalance fair use in order to appropriately encourage visual art creativity by both copyright holders and those that should be able to claim fair use.

Publication Title

AIPLA Quarterly Journal

Volume

48

Issue

2

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