by Christine Haight Farley, American University Washington College of Law
from Volume 5, Issue 1 (Spring, 2015)
Abstract: Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that it has more to do with his change in legal strategy. In Blanch, Koons finally offered the court what it wanted: an “Art History 101” explanation of his work’s meaning—something he was too arrogant to do in previous cases. And the surprise in the Cariou v. Prince case was not the reversal of the restrictive requirement that fair reuses comment on the originals, but was instead the holding that transformative uses need not comment at all. Prince essentially refused to offer the court an explanation of the meaning of his work. As a result, the Second Circuit was hard-pressed to ascribe a meaning to his work that contrasted with Cariou’s. Instead, the court focused on objective differences between the works (size/color/materials) and a visibly different aesthetic (serene/natural beauty versus crude/jarring/hectic/apocalyptic). Thus, the “newness” that the transformative use test demands can be gleaned by the “reasonable observer” without any reference to the artist’s intentions. As a result, the provocateurs of the art world will not have to dumb-down their art as Koons did in Blanch. Judge Charles Haight in Rogers v. Koons described Koons’s art as “commenting upon the commonplace.” Not only was the judge clearly unimpressed with Koons, but he was also dismissive of appropriation art. In contrast, the Second Circuit in Prince accepts one of the central tenets of this art form: placing common images in new contexts can change the way we think of them. And we do not need the artist to tell us how.