Appropriation versus fair use


To many photographers, a federal appeals court ruling last spring that permitted Richard Prince to use someone else’s photographs in his art was akin to slapping a “Steal This” label on their work.

As the New York times reports, “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.

But 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. That informal coalition is considering hiring a Washington lobbyist, said Victor Perlman, general counsel for the American Society of Media Photographers, and, last month, several of the groups sent representatives to meet with legislators, including members of a House of Representativessubcommittee.

“One photographer has also decided to pursue a similar court fight, despite last spring’s ruling. In December, Lois Greenfield, a dance photographer, filed a lawsuit in federal courtin Manhattan, arguing that paintings of dancers a Texas artist made violated her copyright.

“But lawsuits are expensive and, therefore, rare. The focus now, Mr. Perlman said, should be on persuading Congress to change matters. “The courts have taken an approach to fair use that we do not believe was originally intended,” he said. “A lot of what’s going to have to happen in fair use is going to have to happen on Capitol Hill.”

“Technological advances, shifting artistic values and dizzying spikes in art prices have turned the world of visual arts into a boxing ring forintellectual-property rights disputes. Photographers, in particular, are complaining not only that their work is being stolen by other artists, but also that their ability to create new work related to their originals is also being compromised.”

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