Recently, we’ve been asked several times about the nature of a certain work as it relates to copyright infringement.
“Is my work a derivative of theirs? I should be fine, right?”
“Sure, I incorporate some of their copyrighted work, but mine is transformative enough, so I’m good, right?”
As with most gray areas, the answer is maybe. But gray areas are frustrating when you are trying to budget for intellectual property infringement risk on a realistic assessment. So what are the black and white areas of copyright law as it relates to derivative and transformative works?
A derivative work is a work, fixed in tangible medium that includes elements of an original, previously copyright-protected work. The original work is often referred to as the original, parent, or underlying work, and the work that incorporates it is referred to as the derivative. The Spanish translation of Dan Brown’s novel “The Da Vinci Code” is an example of a derivative work. Both the original and derivative works have separate copyright protection. Under the U.S. Copyright Act, the copyright protection afforded to the derivative work is only that which is new, on top of the original work.
A subset of derivative works is the doctrine of transformative works. Transformative works make use of copyrighted material, but do so in a way that the resulting work is fully copyrightable. The author of the transformative work does, however, claim copyright over material in the original work, as used in his or her transformative piece. But, in the face of such a lavish grant of rights in copyright, courts must carefully deem what is actually transformative (and thus, fair use), and what is just copyright infringement, using a four-part test.
And that’s where the black and white ends, and the gray begins. In the recently settled Cariou v. Prince case, the doctrine of transformative works as it stood was turned on its head. Briefly, Cariou published a book of photographic portraits taken in Jamaica. Prince, a known appropriation artist, added some content of his own on top of several of Cariou’s portraits. While no commentary, criticism or other motive existed to deem Prince’s work transformative under the Copyright Act, the court nonetheless found that no commentary or criticism was necessary (despite the statute’s language), and that Prince’s work is in fact, transformative. It’s a decision that has had the photographer-community up in arms, and the appropriation artist community rejoicing.
Taking it one step further, Prince is back in the news, this time, involving more than just a single artist. He may have involved…you. His latest exhibition, part of the Frieze Art Fair in New York, features blown-up screenshots (yes, screenshots) of random Instagrammers’ posts, without their consent or knowledge. Whereas Prince transformed Cariou’s photographs into “paintings” (by painting minimally significant things like eyeballs or a few leaves onto photographs), Prince did nothing to alter the images here, instead removing or substituting original captions and certain comments for his own would-be comments.
It remains to be seen whether any interested party files a lawsuit against Prince for misappropriation of their Instagram photos and copyright infringement for not being legally transformative enough. Because the content has been removed and displayed outside of the Instagram ecosystem, this isn’t a case of contacting the platform to take action. But when single screenshot works are selling for $90,000, it may not take long for someone to get in on the action. Or perhaps in Prince’s case, inaction?