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All’s Fair in Love and Art?Predominant Purpose,

Transformation, and the Triumphant Return of Satire

The Taste of Art – Krannert Art Museum

Professor Michael D. MurrayUniversity of Illinois College of Law

©2008 Michael D. MurrayAll Rights Reserved

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Art LawArt Law• Intellectual Property Law

• First Amendment Law

• Artist’s Business Relationships

• International and Transnational Law concerning Movement of Art and Preservation of Cultural Heritage and Cultural Property

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Intellectual Property LawIntellectual Property Law

• CopyrightCopyright• TrademarkTrademark

• Moral Rights Moral Rights • Economic RightsEconomic Rights

• Right of Publicity Right of Publicity and other and other Personality RightsPersonality Rights

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First Amendment LawFirst Amendment Law

• Censorship of Obscenity Censorship of Obscenity and Pornographyand Pornography

• Protest ArtProtest Art

• Private and Indirect Private and Indirect CensorshipCensorship

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Transformation and Predominant Purpose – a convergence of usage

• Copyright fair use• Right of Publicity

First Amendment fair uses, incl. artistic expression

• Copyright originality requirement

• First Amendment and censorship

TransformationTransformationRequirementRequirement

CopyrightCopyrightFair UseFair Use

Right of PublicityRight of PublicityFirst AmendmentFirst Amendment

Fair UseFair Use

Copyright Copyright OriginalityOriginality

First AmendmentFirst Amendmentand Censorshipand Censorship

PredominantPredominantPurposePurpose

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Concept of Transformation

• Folsom v. Marsh (1841) (Justice Story) (“Writings of Geo. Washington”) – the fair use case of the 19th Century

• “Look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. ”

• “Much must, in such cases, depend upon the nature of the new work, the value and extent of the copies, and the degree in which the original authors may be injured thereby.”

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Transformative Purpose• Harper & Row v. Nation Enters.

(1985) (Gerald Ford Memoirs)• Improper purpose: when the new work

“supplants” the original• With news reporting, “The Nation has every

right to seek to be the first to publish information. But The Nation went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, … [an] unauthorized first publication of a noted figure's copyrighted expression”

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The Term, “Transformative”

• Judge Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990): Purpose and character of use

• Whether and to what extent the new work is “transformative.”

• Does it add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message”?

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Transformation and Fair Use

•Campbell v. Acuff-Rose (1994) (2 Live Crew's take on Orbison's "Pretty Woman")

• Adopts “Transformative” as a valuable attribute of the “purpose and character of the use” 17 U.S.C. § 107(1)

• Transformative nature also favorably affects the other three fair use factors 17 U.S.C. § 107(2)-(4)

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Transformation and Fair Use Factors• Campbell v. Acuff-Rose and Leval:

• (2) Transformative use can make use of published or unpublished, famous, copyrightable works

• (3) The use can take large amounts of the original as long as the end product is transformative

• (4) Transformative works don’t compete directly in market for original because of their new content, new meaning, new expression

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Transformation and Parody and Satire• Campbell v. Acuff-Rose (1994) -

Intended or unintended consequences?

• Parody was enthroned as a proper fair use

• Satire was banished as a proper fair use

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Transformation and Fair Use: the banishment of satire• Campbell v. Acuff-Rose (1994):

• Parody is a proper fair use in large part because a parody is transformative: it shows two works – original and parody, with very different meaning and message

• Parody must borrow from the original in order to reveal the object of its attack

• But parody cannot supersede the objects of or supplant the original because it must criticize the original or the original’s author. Thus, it is no market substitute for the original

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Transformation and Fair Use: the banishment of satire - Campbell v. Acuff-Rose (1994):• Satire is not a proper fair use because there

is no special reason why a satire must borrow from the original; satires must stand on their own to justify the theft from the original

• Satire doesn’t necessarily criticize or comment on the original it steals from

• A satire can exist for approximately the same purposes as the original (e.g., entertainment, art). Thus, it can supersede the objects of or supplant the original

• [But can’t satires be transformative?]

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Dr. Seuss Enters. v. Penguin Books Satire, not fair use

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Walt Disney v. Air Pirates Satire, not fair use

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Columbia Pictures v. MiramaxSatire, not fair use

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Steinberg v. Columbia Pictures • Not a parody (not really a satire

either), not fair use

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Leibovitz v. Paramount PicturesParody, fair use

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Right of Publicity Typical Elements

• Use of person’s name, image, likeness, or other attributes (voice, stage act, mannerisms)

• On products, goods, merchandise or in the advertising of the same

• For some advantage (usually commercial)

• Without consent

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Right of Publicity – First Amendment Freedom of

Expression Defenses• Comment and criticism• Artistic expression• News reporting of newsworthy

events• Advertising and promotion of

the speaker’s activities relating to one of the above uses

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Transformative Requirement Comedy III v. Saderup (Cal. 2001)

• Borrowing from copyright “fair use” standards, Cal Supreme Ct said balancing of publicity against artistic expression requires art to be “transformative”

• Question: Is the work merely a depiction of the celebrity, no matter how skillfully executed, or did the artist add new creative expression that has value beyond that of star’s image?

• Subsidiary inquiry: would average member of public buy this for the art or the artist or for the celebrity’s image?

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Comedy III v. Saderup

Three Stooges – You Nazty Spy

Saderup’s Three Stooges

Not transformative, Not fair use

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Hoepkerv. Kruger

Hoepker Photograph: “Charlotte as Seen by Thomas”

Kruger Additions

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Hoepker v. Kruger (S.D.N.Y. 2002)

• Reinforces the liberal “New York” interpretation of artistic expression over right of publicity as in Simeonov v. Tiegs

• But goes on to say that Barbara Kruger would have satisfied the Comedy III transformative test with her art

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ETW v. Jireh (6th Cir. 2003)

Artistic Expression Defense

• First Amendment right to expression through art was preserved over Tiger’s rights to control and exploit his image

• Court reinforces idea that art is expected to be sold commercially and it has no effect on the 1st Amend. analysis

•*Also found the use to be transformative under Comedy III

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The Emergence of Predominant Purpose in Right of Publicity Law• BALANCING Test: Value of First

Amendment Activity vs. Publicity Rts, as described in Cardtoons case

• ETW also found that Rick Rush passed the Cardtoons Balancing test

• RELATEDNESS Test: The use must be related to a proper expressive activity as described in Rogers v. Grimaldi

• ETW said it was related to Rush’s speech

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Cardtoons

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Cardtoons: Balancing Test

• Purpose of the expressive activity of Cardtoons was to parody Major League players’ salaries, arrogance, self-importance

• Balance of Rights: Allowing celebrities to quash criticism and lampooning serves no public policy purpose as valuable as First Amend. purpose

• Balance in favor of parodic criticism

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Ginger Rogers & Rosa Parks

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Rogers v. Grimaldi: Relatedness Test• Image or name of celebrity can be

used if related to expressive content of work, and

• Purpose of use is expressive, not simply a disguised advertisement for unrelated commercial services or products

• Rogers and ETW passed the test• Parks (6th Cir. 2003) failed the test

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Doe (*Tony Twist) v. TCI Cablevision (*Todd McFarlane) (Mo. 2003)

Coining the Predominant Purpose Test

Tony Twist The other “Tony Twist” McFarlane

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Doe (*Tony Twist) v. TCI Cablevision (*Todd McFarlane) (Mo. 2003)

Coining the Predominant Purpose Test

• Is the Predominant Purpose of the use of the celebrity’s image expressive or commercial?

• TCI (McFarlane) failed the test • CBC Distribution (8th Cir. 2007) –

fantasy baseball site passed the test

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One test to rule them all, one test to bind them . . .

• The Predominant Purpose Test is the Cardtoons test and the Rogers test

• Cardtoons: Is the purpose of the work and the use of the celebrity’s image predominantly expressive or exploitive? – i.e., which tips the balance?

• Rogers: Is the purpose of the work and the use of the celebrity’s image predominantly a commercial exploitation unrelated to expression or a purpose and use related to expression?

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One test to rule them all, one test to bind them . . .

• Is there a connection between Transformation and Predominant Purpose in right of publicity law?

• ETW passes the Cardtoons test, the Rogers test, and the Comedy III test

• Hoepker passes the Cardtoons test and the Comedy III test (ignores the Rogers test)

• Parks fails the Cardtoons test, the Rogers test, and the Comedy III test

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One test to rule them all, one test to bind them . . .• Would the Predominant Purpose test

work as a fair use test in copyright law?

• Transformative uses add new content, meaning, or expression

• They do not supplant the original• They do not compete with the original• On balance, they are more expressive

than exploitive of the original• So the Predominant Purpose of

Transformative uses is more expressive than exploitive

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Would the Predominant Purpose test work as a fair use test in copyright law?

• The Predominant Purpose of Transformative uses is more expressive than exploitive

• Campbell: Song was more about expression of opinion relating to outdated Orbison song; not about exploitation of Orbison

• Liebovitz: Ad was more about the joke, the ironic comment related to the original work; not about exploitation of Liebovitz’s work

• Steinberg, Columbia v. Miramax, Air Pirates, Dr. Seuss more about exploiting the original work for attention and commercial value than expression related to the work

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But First Amendment law, too??

• Is there a connection between Transformation and Predominant Purpose in First Amendment law?

• Convergence in copyright, right of publicity, and First Amendment law?

• Yes• It’s all about balancing property

rights with free expression rights

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Copyright and the balance of First Amendment rights

• Copyright and Free Expression both are constitutional rights – U.S. Const. art. I, § 8 and amend. I

• Free expression is manifestly limited by copyright

• Copyright monopoly must be carefully restrained to allow free expression

• Fair use doctrine, de minimis use doctrine, public domain doctrine, and the originality requirement in copyright all seek to effectuate this public policy

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Originality and First Amendment rights• Originality is about what is

copyrightable and what is not• In part to allow free expression on

all matters not subject to copyright• Originality doctrines: idea-expression

distinction, scenes a faire, merger doctrine, facts doctrine, functionality doctrine all about free speech

• Originality requirement calls for transformation – new content, meaning, or expression

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Originality and First Amendment rights• Originality Requirement for new works:

some new content, meaning, or expression showing a modicum of creativity

• Originality Requirement for derivative works: new copyright only extends to the new content, meaning, or expression

• Originality Doctrines: the ideas expressed in the work must be transformed by the author or artist – the arrangement, depiction, modification of the ideas must reveal new content, meaning, or expression

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Predominant Purpose and Censorship• Censorship: artistic expression is speech, it

should not be censored for its content without strict scrutiny

• But when is an activity expression? artistic activities might be expressive or not

• Bery v. City of New York (2d Cir. 1996): selling art is directly connected to the expression of art; the rights to create and express art are nothing without the right to sell

• Mastrovincenzo v. City of New York (2d Cir. 2006): If predominant purpose of artistic activity is expressive, limited ability to censor. If commercial, greater ability to censor. Selling hand-decorated t-shirts is more commercial than expressive.

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Good news or bad news for artists?• Good news: the same activities of creation

support copyrightability of your own work,• the fairness of your use of other’s work or

their image or likeness, and • the likelihood of protection from

censorship• AS LONG AS your motive is to be creative

– to create new content, meaning, expression

• – and not exploitive (to rip off another to avoid the drudgery of being creative)

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Good news or bad news for artists?• Good News about Balancing vs. Bright Line

Rules: • Discussions of fair use often revolve

around assertions of “you can’t do that!” • In fact, recognition of my thesis confirms

that all decisions are balanced on a case-by-case basis, not tied to bright line rules

• You can do it, if your work is transformative, if the predominant purpose is expressive not exploitive

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Is satire back? - The legacy of Jeff Koons• Rogers v. Koons

– String of Puppies, not fair use

• United Features Synd. v. Koons– Odie the Dog from

Garfield, not fair use• Campbell v. Koons

– Boys with Pig, not fair use

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Blanch v. Koons (2006)

<< Blanch’s Silk Sandals

Koons’s Niagara>>

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Blanch v. Koons___ •The Second Circuit found that Koons's use of the photograph was transformative

•But as a satire, not a parody

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Blanch v. Koons

•“The question is whether Koons had a genuine creative rationale for borrowing Blanch's image,

•rather than using it ‘merely to get merely to get attention or avoid the drudgery in attention or avoid the drudgery in working up something freshworking up something fresh.”’

•In other words, the predominant predominant purpose purpose (satire)(satire) was creative and expressive, not commercial and exploitive

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The End

©2008 Michael D. Murray

All Rights Reserved