Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

The conflict of laws has often resulted in interesting dilemmas for courts where precedent cannot be readily applied, necessitating a case-by-case approach. The United States Court of Appeals for the Ninth Circuit a that held a French court’s ruling was unenforceable due to a conflict in copyright laws between the countries.

Background

The case between De Fontbrune and Alan Wofsy regarding photographs of Picasso’s paintings dates to 1991. taken by Christian Zervos, with added creative elements through deliberate choices of lighting, lens filters and framing, were published in Zervos Catalogue in 1932. In 1979, the rights to the publication were acquired by De Fontbrune. In 1991, Wofsy, with , published De Fontrbrune’s images in “The Picasso Project”. De Fontbrune held the position that the to approve such use. , in 1998, the police confiscated copies of Wofsy’s book, and De Fontbrune sued for copyright infringement.

In 1998, the French courts ruled that the photographs were used for , and thus were not entitled to copyright protection. This, however, was in 2001 with a ruling against Wofsy, who became responsible for . The appellate court agreed that Zervos’ photographs were protected by copyright, as it involved sufficient creativity. ��Wofsy appealed to the French Civil Supreme Court, but his case the damages owed to De Fontbrune.

In 2011, to enforce the decision in the States, De Fontbrune brought the case to California who . The District Court held that the French decision infringed Wofsy’s freedom of speech and that Wofsy’s books are “ and that astreinte (monetary damages for copyright infringement) do not apply because of the US’s fair use doctrine. The plaintiffs argued that the book has a commercial purpose, which weighs against fair use. The District Court held that such nature of use does not create a presumption against fair use for public policy reasons. The US’s disregard of another country’s ruling ��indicated that the court found it “repugnant” to domestic law.

Appeal

De Fontbrune the District Court’s holding — one that rejected the French judgement. The appellate court, the Ninth Circuit, noted that there is a high bar for repugnancy, and that a mere conflict of laws is insufficient to meet it. Further, the judgment must be to recognize standards of morality and the general interests of the citizens. The Ninth Circuit also notedd that the French judgment is identified under the California Recognition Act.

The Ninth Circuit that the book ��was non-infringing for the purposes of — that is, the Court does not consider it to be “criticism, comment, news reporting, teaching, scholarship, or research purposes.” ��Rather, the Court held that the use was infringing because it is simply a and the one that could rebalance fair use in Wofsy’s favour.

The Ninth Circuit used the following four fair use factors to reach their conclusion:

• the purpose and character of use;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used; and
• the effect on potential market or value of the copyrighted work

The Court had doubts whether Wofsy could use the fair use defence in the States and thus the inability to use the defence under French law was not in “.”

The discrepancy between the decisions of the District Court and Appellate Court may have stemmed from the subjective methodology of the judges of balancing the copyright laws and fair use defence scope with First Amendment freedom of speech rights. Nevertheless, the fair use defence remains a gamble for artists and creatives.

On December 2, 2022, counsel for Wofsy for a Writ of Certiorari —judicial review— to the Supreme Court of the United States.

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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

At last, the on the protectability of the subjects of ‘pop art’. In 1984, Vanity Fair magazine received a licence from photographer Lynn Goldsmith to use her 1981 portrait of Prince, which she had shot on assignment for Newsweek. Fast forward to 2017, when Vanity Fair published a special issue to pay homage to the recently deceased musician that featured ‘Orange Prince’ – Andy Warhol’s pop art depiction of Goldsmith’s photograph. The question of whether Warhol’s Prince silkscreens may be considered fair use has now made its way up to the US Supreme Court, and on October 12th of this year, . This is the outlining the arguments that were made in the matter of Andy Warhol Foundation for the Arts v Goldsmith.

In determining fair use according to the statute, one of the primary points of contention involved the meaning behind the of the alleged use. The Warhol Foundation contended that the purpose of ‘Orange Prince’ was to comment on modern society, thereby conveying unto the original an entirely different meaning and message. Lisa Blatt, representing Goldsmith, proposed that one may just as easily argue that the “purpose” of both uses was the commercial licensing of the works for publication. Blatt’s arguments were supported by Yaira Dubin, representing the Justice Department, who also highlighted the foundation’s commercial licensing of Warhol’s work, saying that “using another artist’s work as a starting point to turn around and compete directly with their original has never been considered fair.”

Of course, the magnitude of such a household name as Andy Warhol’s was not lost to the court. Justice Kagan questioned the influence such a name might have on the query: “Now we know who Andy Warhol was and what he was doing and what his works have been taken to mean. So it’s easy to say that there’s something importantly new in what he did with this image.” On the other hand, Justice Kagan also acknowledged that there must be a reason why Warhol’s art is hung up on the walls of museums: “[W]hy do museums show Andy Warhol? They show Andy Warhol because he was a transformative artist, because he took a bunch of photographs and he made them mean something completely different.”��

The Supreme Court judges addressed a statement made by the , which ruled in favour of Goldsmith. The Court of Appeals had warned that judges “should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Justice Alito, in particular, seemed to disagree with the statement, pondering the kind of perspective that would be appropriate in determining such distinctions: “Well, suppose that [somebody]...made an almost exact copy [of the Mona Lisa]…If you showed [the two works] to most people today, they would say, well, all right, brown dress, blue dress, red dress, doesn’t make any difference, right?...But, if you called somebody who knows something about Renaissance art, the person would say that makes a big difference.”

The commentary strikes at the ambiguity often found in determining cases involving intellectual property, if only because there is an inherently subjective element to construing creations of the mind. However, though patent law has the “person of ordinary skill in the art” standard and trademark law has the “ordinary casual consumer somewhat in a hurry” standard, copyright law often relies on a judge’s evaluation of whether infringement has occurred.

There is much to be anticipated from the Supreme Court’s final decision, the kind of effect such a decision might have on the world of art and photography, as well as whether a ruling in favour of the foundation would indeed “decimate the art of photography by destroying the incentive to create the art in the first place,” as Blatt argues.

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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

Over 3 years have passed since New 91��ɫ’s District Court a ruling in the matter of Andy Warhol’s “Orange Prince”, and the ripples of the case have finally made their way up to the Supreme Court. On Wednesday, October 12th, 2022, the judges of the US Supreme Court heard from both sides, and considered whether Warhol’s , which he had based on a 1981 photograph of Prince by photographer Lynn Goldsmith, may be considered a use that is “fair”.��

The doctrine of fair dealing in Canada has long played an important role in balancing the scales of copyright law from leaning too far in favour of copyright holders. The fair dealing exceptions recognize certain uses of protected works as benefitting society, and thereby safeguard those uses from findings of infringement. The parallel doctrine in the US tracks along similar reasoning and is known as the ‘fair use’ doctrine. In determining whether a use of a copyrighted work is “fair,” courts consider numerous factors, including whether the use in question is “transformative” of the original material.

In , the Supreme Court was invited to assess whether a work was “transformative” when it conveys a different meaning or message from its source material, or whether, in cases where the accused work “recognizably derives” from its source material, judges are forbidden from deriving or considering such meanings. It was an engaging proceeding with an abundance of references to pop culture icons and current affairs, and was punctuated at times by laughter in the courtroom at an amusing hypothetical posited by one of the judges.����

Roman Martinez appeared on behalf of the Andy Warhol Foundation, and clarified the issue at hand, as well as the Foundation’s position: “[b]oth courts below agreed, and Goldsmith doesn’t dispute, that Warhol’s Prince Series can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith’s photograph. The question in this case is whether that different meaning or message should play a role, any role, in the fair use analysis. Our answer is yes.” Martinez argued that while Goldsmith’s original photograph captured a “vulnerable-looking Prince,” Warhol’s depiction turned it into a commentary on celebrity and fame – an entirely different meaning and message.��

The judges somewhat pushed back against this argument. Justice Elena Kagan suggested that in Hollywood, while a movie adaptation of a book might introduce plenty of new elements that may make a derivative work “transformative” under Martinez’s proposed test (“...new dialogue, sometimes new plot points, new settings, new characters, new themes”), one would still expect some sort of licensing agreement to be required.

Chief Justice John Roberts and Justice Clarence Thomas also commented on Martinez’s arguments, albeit in more lighthearted terms. The Chief Justice wondered whether a claimant who depicted Prince with “a little smile on his face” may advance the argument that the “meaning or message” of the work was fundamentally changed to convey that “Prince can be happy” or that “Prince should be happy.” Justice Thomas in turn asked Martinez to imagine the Justice at a Syracuse football game as a Prince fan, “which [he] was in the ‘80s.” Justice Kagan interjected, “No longer?,” to which Justice Thomas replied, “Well…so only on Thursday night.” This elicited some laughter in the courtroom. Justice Thomas continued, “And I decide to make one of those big blowup posters of ‘Orange Prince’ and change the colours a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me for infringement?,” insinuating that the changes and add-ons may be considered to convey a new “message” to Warhol’s work, under the Foundation’s proposed test. In response, Martinez emphasized that the verdict in both scenarios would largely depend on the degree of transformation in meaning or message, as well as the other factors in the ‘fair use’ analysis, such that a holistic assessment may be applied.

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Ariel Goldberg is a 1L JD Candidate at Osgoode Hall Law School.

Typically, include strictly hygienic recommendations, but tattoo artist Kat Von D might have a unique suggestion: prepare to be an exhibit in a copyright infringement lawsuit.

Back on February 7, 2021, award-winning professional photographer Jeffrey B. Sedlik (“Sedlik”) filed in the U. S. District Court for the Central District of California against Katherine Von Drachenberg, famously known as Kat Von D (“Kat Von D”), and her companies Kat Von D, Inc. and High Voltage Tattoo, Inc. for copyright infringement under the Copyright Act of 1976. Sedlik claims that Kat Von D infringed the copyright protection of his iconic photograph of world-famous jazz musician Miles Davis (“Davis”) when she tattooed the image onto a client’s body without authorization and posted photos of the tattoo on social media. On May 31, 2022, triable issues on substantial similarity and fair use.

Background

In , Kat Von D inked a tattoo of Sedlik’s Davis photograph on the arm of lighting technician Blake Farmer (“Farmer”) for free. Prior to the tattoo sessions, Farmer selected the image from a Google search. Kat Von D did not request authorization or a license to reproduce the image. To freehand ink the tattoo, Kat Von D created a stencil by using a light box to trace the Davis photograph. On March 18, 2017, Kat Von D posted on her personal Instagram of herself using the Davis image as a reference while inking the tattoo. On May 16, 2017, Kat Von D posted on her personal Instagram account.

Sedlik’s copyright infringement claims raise the of whether a tattoo artist commits copyright infringement when replicating a copyright protected image as a tattoo. In comparison, previous copyright infringement cases over tattoo art focus on an existing tattoo being reproduced in another work rather than the copying of a reference image. For example, in , a tattoo artist sued the video game producer Take-Two for copying in a video game series six tattoos that the tattoo artist inked on World Wrestling Entertainment (WWE) wrestler Randy Orton.

The Arguments

Kat Von D claims Sedlik does not have protection over the photograph’s subject matter and pose because Sedlik .�� In Nike photographed Michael Jorden similar to professional photographer Rentmeester’s original photograph of Michael Jordan leaping to dunk a basketball in a basketball net. The Ninth Circuit held that Nike did not infringe on Rentmeester’s photograph because Rentmeester’s copyright protection cannot prevent photographers from the idea of Jordan leaping, rather only the specific details expressed in the photo he took. While the Court agrees that the ‘Sssh!’ pose is not protectable, the Court states that the , such as lighting and camera angle, are protectable.

Kat Von D argues that the use of the photograph in creating the tattoo is fair use because the tattoo is transformative . First, the tattoo has a new meaning because Farmer selected the tattoo due to his personal identification with Davis, whereas Sedlik’s portrait commented on Davis’ . Second, the tattoo has a new meaning by virtue of being a tattoo because tattoos have personal meaning to their wearers. Third, Kat Von D created her own interpretation by using a freehand method of inking the tattoo. She added movement to the hair, eliminated the black background and created a new melancholy aesthetic. Interestingly, Kat Von D urges the Court to consider “ ��as a non-statutory factor of fair use.

the Court rejected the argument that the tattoo has a different meaning solely because it is placed on the human body. The Court was more convinced that Von D’s freehand tattooing style created visual differences. However, that these differences do not make the tattoo transformative because the differences only arise from the medium of tattooing.

Moving Forward

The broader issue of translating a copyright protected photograph into a different medium with a different purpose will be addressed by the U. S. Supreme Court in The case questions if Andy Warhol’s “Prince Series” infringes professional photographer Lynn Goldsmith’s copyright protected photograph of Prince by using the photograph as an artistic reference without authorization. The decision on Kat Von D’s tattoo until the U. S. Supreme Court’s decision on Andy Warhol because the case could set precedent for fair use, specifically when the use of the original work is transformative enough to avoid copyright infringement.

The outcome of this case may alter the tattoo industry. Clients often request tattoos of Google-searched images or copyright protected works like album covers. The possibility of a tattoo artist being liable for copyright infringement creates complex implications for what tattoo artists are willing to ink as tattoos. More generally, the case towards balancing the rights of copyright owners and the right of tattoo owners’ to privacy and bodily autonomy.��

Further Reading

For more information on intellectual property law and tattoo art see Emily Prieur’s IPilogue article

For more information on The Andy Warhol Foundation for Visual Arts, Inc. v. Lynn Goldsmith, et al. see Tianchu Gao’s IPilogue article

The post Kat Von D, Think Before You Ink appeared first on IPOsgoode.

Photo by (Unsplash)

Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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Powerful. Bold. Influential. These are just some of the words that ’s emphasizes for a first-generation Black law student like myself. You can only imagine how much an organization could profit from using those photos for a fundraising campaign for Indigenous, Black and people of colour (IBPOC).

Early July 2021, Roderique received a message from a friend who had visited The Hudson’s Bay Company (The Bay) where she came upon Roderique’s photo for the company’s “” initiative. The fundraising initiative sought donations “.” The online website page continues to state that it makes “.” This is ironic because The Bay was using Roderique’s image and face without her consent.

Roderique’s Response

Roderique took to Twitter when she received a text message from her friend saying, “.” Since Roderique was unaware of the advertisement and was not doing work for The Bay, she tweeted the following: “”

Screenshot from .

As seen in the image above, The Bay replied: “.” The Bay made a statement to CBC News saying the picture was taken from the photographer’s () as inspiration, but was never changed. The Bay has since removed the image from all advertising.

Roderique said that “.” The Bay has yet to release further statements about the matter or comment on whether the company will take further action. Roderique said she would like to see a financial donation as this “mistake” happens too often to IBPOC creation.

The Legal Side

An entity’s unauthorized use of a photographer’s image engages many legal issues: , , and , to name a few. Although few laws concern the use of an image without consent, the , the , the , and the address these legal issues. In this post, I will focus on the Copyright Act.

Under s. 13(1) of the Copyright Act, “.” In other words, every photographer owns the photos that they take. According to section 6 of the Act, ownership will last, until otherwise expressed, for “.” Accordingly, the photo rightly belongs to Luis Mora, the original photographer. Roderique noted that .

However, the Act includes an exception. states that if the photographer was contracted for work, the photos taken belong to their employer. Additionally, under , the photographer can contract out of this complete assignment of rights, and instead grant certain rights in the photo instead of full ownership. Given the comments made, Roderique and The Globe and Mail have some rights over the original image. Nevertheless, Roderqiue maintains that .

The Importance

Although mistakes do happen, I noticed an abundance of comments online from people who could not see the importance of this issue while researching this matter. Society has a long history of profiting off the work of Black people without giving appropriate recognition or credit. For example, some social media platforms have ned Black content creators for criticizing the lack of credit they receive, all while White creators profit by copying Black creators’ content.

The importance of the issue is not a matter of money or fame, but of dignity and recognition for IBPOC’s hard work. Society is long overdue to give IBPOC the credit they deserve. Large corporations and entities that are not a part of the IBPOC community especially need to stop profiting from IBPOCs’ hard work without crediting its creators.

The post Ironic Advocacy at Its Best: The Bay Apologizes to Hadiya Roderique for Copyright Infringement Mistake appeared first on IPOsgoode.

Although the US Federal Court, where was litigated, awarded copyright to Mr. Slater in 2015, the two parties nevertheless agreed that he would donate 25% of future profits from the photograph to causes supporting the conservation and protection of Indonesian Crested Macaques, the breed of the monkey that took the photo. The litigation has served as a test-case in the question of whether non-humans can be the owners of copyright and whether this could be used as a vehicle for increasing animals’ legal rights.

The case turned on whether the Naruto had sufficient standing under US federal legislation to bring a claim of copyright ownership in a US court. PETA argued that the definition of “persons” has intentionally been left undefined in Title 17 of the United States Code and the Copyright Act of 1976, which governs US copyright law. As a result, they argued that the intention of US lawmakers was to allow a flexible definition of personhood for the purposes of copyright and that this empowers the court to interpret “person” to include animals.

Mr. Slater contended that his work in setting up the equipment for the monkeys means that they he effectively created the photographs and therefore is entitled to their copyright. He was also able to rely on previous US case law concerning animal rights, specifically , wherein the court stated that if animals are to be granted standing to sue, legislators must clearly state this in the relevant legislation. The court also pointed to (“the Compendium”), published by the US Government, which courts are obliged to follow when interpreting copyright law. It is stated at several points in the Compendium that copyright ownership is limited to human beings.

Based on the above factors, the US court sided with Mr. Slater, stating that copyright ownership for animals is a legislative decision and that Congress must amend copyright legislation and clearly state this for it to be effective. This means any changes to animal rights with respect to copyright issues are policy questions that the legislative and executive branches must address.

Although the District Court ruled that animals lack standing under copyright legislation, the decision was inconclusive on the novel issue of whether animals can be subject to copyright ownership. Therefore, PETA appealed the ruling. The appeal was heard in July 2017, with a decision forthcoming. However, a of the appeal proceedings shows the judges questioning PETA on several points, including whether PETA has a sufficient connection to the monkey to represent her (the monkey was previously represented by a primatologist at the District level). Slater’s counsel also noted that there were questions of whether the identity of monkey that took the photograph had been sufficiently ascertained, with Slater alleging that a different monkey altogether had taken the photo. The parties went on to argue over other novel copyright-related questions, such as whether the monkey’s offspring would inherit the copyright (two informative articles on the appeal and more bizarre details on the case can be found from the Hollywood Reporter, and ).

Mr. Slater has that legal fees from this case have bankrupted him and he notes that he would have been prepared to make such an offer to settle, but PETA initiated the litigation without first contacting him. Had the two parties attempted to negotiate an agreement, this issue could potentially have been settled years ago and more money would have been donated to conservation efforts.

Whether PETA continues to pursue this case further remains to be seen, but as we discover more about the intellectual capabilities of non-humans, the question of whether a non-human can own intellectual property will likely persist. The decision by the US courts suggests that any extensions of intellectual property rights to animals will be done through lobbying at a political level to the legislature and not through legal arguments to the judiciary.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Bandopadhyay argues that “while originality is widely accepted as one of the fundamental ingredients of a copyrightable work, the determination of originality with respect to photography is even more tenuous than with other copyrightable works, in ways that judicial decisions ignore and legal scholarship has left unexplored.” Photographs are protected under the Protection of Original Design in the , codified in the US under Title 17, Chapter 13. Canada extends protection to photographs as “artistic works” under the section 2 of the .

Connecting the Dots

The connection Bandopadhyay draws between intellectual property and disaster begins with his interest in how law produces meaning in society. He believes that law produces meaning by controlling the means of knowledge production, and therefore, the production of photographic documentation of disasters and catastrophes. He begins by recalling his work on a disaster management project for the past five years that exposed him to how states created and maintained power by using information-management strategies. Dating back to the mid-late 18th centuries, modern states emerged by devising rules, regulations, conditions and institutions that allowed for something called a “disaster” to occur. From this, these states could offer some explanation or interpretation over the disaster, creating the narrative behind each catastrophe. Through this act of control, Bandopadhyay believes, modern states could maintain power even when the state was unable to have actual control over that disaster. This study produced two findings; first, that disaster exists as a real “thing” and second, that disaster exists as an interpretive context over which various groups battle for power. For the purposes of his current project and to further his argument, he focuses on the second finding, supporting a more subjective and contextualized consideration of disaster photography.

It seems that the connection between visualization and disaster then comes down to the human factor of interpretation. Bandopadhyay highlights that if disasters are interpretive creatures, then visualization is very important because, for most of the world, visualization is how we relate to the world. We understand the environment, each other and therefore, ourselves, ultimately shaping what we see and whether we believe what we see. Intellectual property, or copyright specifically, is, therefore, the legal regime that controls the means of which visualization is produced, who gets to own, transfer, manage and monitor the property, and determine who can assign meaning to intellectual property. Bandopadhyay studies disaster photography in terms of copyright law because it helps us understand how a legal regime typically disassociated with catastrophic events can nevertheless have a role in how we perceive ourselves in relation to those catastrophic events.

Familiarly Unfamiliar

As everyday consumers, we deal with disaster photography more than we think. Bandopadhyay goes on to explain a more meaningful way that we associate disaster with imagery in what I would simply describe as a compare/contrast system with multiple photographs. For example, the Hurricane Katrina Memory Bank is a digital storage space, a concept of contrasting the past with the present using photograph that started to become more prevalent after September 11th. This storage space asks people from all over the world to submit photos of disasters that are first archived and then geographically pinpointed using Google Maps. The meaning in this process comes from the contextualization of the disaster photograph, allowing the user to tell and share their stories. This way, disasters become less anonymous and irrelevant, evolving into more of a personal connection between the online world and those originally affected by the disaster.

Originality Underexposed

Bandopadhyay believes that at the heart of all disaster photography is originality. The legal restrictions on using disaster photography begin to tighten because there is a risk of the after-disaster photograph being an original, copyrighted work. In the US, to be copyrightable, the work must pass what Bandopadhyay calls a “mythical bar” of originality that comprises of two components. First, the work must be an independent creation, and second, that the work requires “something more.” For such an important cornerstone of intellectual property protection, one would think the courts would have adopted a more defined understanding of what original means. Nonetheless, originality is a value for which we determine whether something is worthy of being copyrightable, therefore making originality one of the most important values to consider in photography.

Part of is his critique is that there is no consideration of a narrative when formulating that value. In comparison with the copyright laws of the most developed countries, most agree on the determinative factor of originality for copyright protection. In the US, the standard for writing, for example, is very low as any expression of creativity passes this bar. Bandopadhyay’s problem with this is that while there is agreement that originality is in the value of work, there is no direction as to how we determine originality, and for what reasons. In turn, this creates a need for comprehensive criteria to guide our determination of originality in photography.

The answer to his call may exist in some form within criteria first developed in the UK, adopted by the European Court of Justice, and then by Canadian courts. Although the US has not explicitly adopted this set of criteria, US courts use a very similar consideration set comprising of the (i) subject matter of the creation, (ii) originality and rendition, and (iii) originality and timing.

Subject Matter of the Creation

To help explain what “subject matter” means to US courts, Bandopadhyay points to case law, specifically to ., one of the most famous decisions that dealt with copyright and photography. In this 1884 case, Napoleon Sarony visited New 91��ɫ and took a series of photographs, one of which Burrow-Giles printed and sold 85,000 contrasted. Burrow-Giles Lithographic argued that although the Copyright Act extended to authors and writers, the provisions did not extend to protecting photographs. In this time, photographs were generally not regarded as artistic work, but instead, simple mechanical representations of reality. However, the Supreme Court disagreed with Burrow-Giles’ assessment of photography as non-art, for two reasons. First, the Court said the photographs are original works of art by drawing analogies, not to writing but to paintings. Second, the Court said the photographs represented an original scene because it did not exist before Sarony created the scene and it would not exist but-for Sarony’s creative input. For these reasons, Sarony was found to own the subject matter of the photograph, and found Burrow-Giles’ reproductions to be in violation of Sarony’s copyright.

Notwithstanding this decision, Bandopadhyay notes the problems associated with analogizing photographs to paintings. First, photography is not an art of arrangement in the same way painting is because, in a painting, the forms only need to relate to each other. Bandopadhyay claims that if he knew nothing of the world, he could see a painting and it could still exist and therefore function as a painting. He says he could then close his eyes, draw lines on paper and his creation could still count as a painting. On the other hand, in a photograph, not only do the forms of arrangement relate to each other, but they also relate to things outside of the photograph, in the real world. Bandopadhyay further claims that if he did not know what a tree looked like, then he saw a picture of a tree, the subject matter would not make sense to him. This is because of the reference to forms, in this example, a tree, are out in the real world, therefore creating a need for a precluding reference before the subject matter can be interpreted.

Photographs also possess a transparent element; we look at a photograph and tend to believe what we see. We also interpret photographs in different ways, admitting the image to mean different things to different people. This is where Bandopadhyay believes disaster photography “as a lens” is useful because this type of photography amplifies the typical reaction to the information and emotion we expect to take from a traditional photograph, making disaster photography automatically newsworthy. When we look at disaster photography, we believe the subject matter as truth. Disaster photography is then relied upon to serve as memories to those affected, and as a medium to invoke emotion from those who are not.

Contribution

To help explain contributory originality, Bandopadhyay gives the example of American photographer, , and her famed photograph. At the time, Lange was touring the United States in the mid-late 1930s, taking photographs of unemployed and poverty-stricken families to send to Congress, pressuring the government to send assistance to the displaced and migrant workers of America. She found this family in a small town and without much conversation or any questions, she took five exposures of the mother and her two children. The original photograph was taken at a very close range yet the woman was looking away with her children hovering towards her, as if the mother knew what the photograph was for. The purpose of the photograph was never verbally communicated by either Lange or the mother, but Lange claims the woman was an actual collaborator in the production of the photograph. In later years, the daughter of the mother agreed. Although the mother was not told how to pose, she knew what the photograph was for and knew how she was to look if the photograph was going to send the help she desperately needed. In this collaborative understanding, Bandopadhyay believes the benefits of viewing photography as a web of relationships, instead of a hierarchical structure, has shown to have great benefits for photography.

Originality as Rendition

’s famed explains how originality can be found in rendition. Bandopadhyay establishes that the mountain in the image is not real nature but instead, how Ansel wanted the world to perceive nature. Adam’s pre-visualized idea of a hyper-real nature was executed by his own form of editing, or pre-visualizing images, to see in his mind what he wanted to exist in the real world, then taking steps to make that a reality in his photographs. This photograph became synonymous with the natural wilderness and was a main symbol of the 1970s environmental movement. Bandopadhyay argues that the photograph became so well known because it established a reality that people were convinced by. People felt this was pure nature, contrasted by the grime and grain of the industrialization that was taking place in the United States at the time. Ansel spent months revisiting the same location, studying topography, weather patterns, and even exposure levels. Simply, the photograph was completely manufactured before capturing the image. This way, Bandopadhyay thinks, to say this is a rendition, and therefore something that is not a powerful creation of reality, any different than the creation of subject matter, is absurd because Adams convinced hundreds of thousands of people to put their lives on the line protesting; a reality indeed created by rendition.

Originality and Timing

Of the three factors, Bandopadhyay believes timing is the least strong claim to prove a photograph is original. The US Court explains this factor with a rather barebones justification using ’s ��to show that originality in timing creates no rights over the subject matter. The Court held that Mengelsen did not make the bear eat the fish, for if he stood there long enough and took enough photographs, he would have captured that same image. However, this is only one, a rather narrow, understanding of how timing can be determined to be original. Bandopadhyay gives four examples of alternative understandings of original timing. First, , the father of real-time photography, would wait until the moment of life would happen, or the “moment of equilibrium”, when everything would “click”, and then he would take the photo. Second, Cartier-Bresson, also waited for a moment, but more specifically, “a decisive moment when, if memory serves, the organization of forms and significance of events, coincides in the mind of the photographer.” Until these factors all came together, Cartier-Bresson would not take the photograph. Third, critic ’s perspective emphasizes a temporal element, “the choice is not between photography X and Y, but the photograph at X moment and Y moment,” incorporating context and environmental change into his consideration. In a more personalized perspective, explains “through an event has come to mean…something worth photographing, it is still the ideology, that determines what constitutes an event,” or in other words, photographers take on a gate-keeping role in determining what and why something is worthy of being photographed.

These alternate understandings allow for other factors such as culture to determine timing. Based on who you are, where you grew up, and what you think is important, non-numerical timing will shape if and when you decide to take a picture, making culture and personalized factors critical when discussing the concept of originality in timing. Bandopadhyay claims that entire disasters can pass without notice if people are not prompted to photograph it. He believes that although there are other ways to offer narratives on how originality can occur, when we try to find originality purely by looking at the subject matter itself, these important narratives fail to be considered when determining holistic originality. Excluding photography skills, social justice, personal and societal ideology, culture and other normative factors that might lead to a coherent narrative and justification for why something was photographed eventually become lost and irrelevant in US courts. Thus, Bandopadhyay rejects the notion that originality in timing, unless defined as Megelsen’s Catch of the Day, click-it-or-you-miss-it photography, is incapable of meaningfully contributing to originality.

Once we broaden our understanding of timing, it then becomes one of the most important features of a photograph’s originality. Bandopadhyay says that timing is capable of affecting us by evoking absence and a state of change. If we look at a photograph of disaster debris, it has little effect. But when we compare it with a contrasting photograph in a before-after comparison, we can then see the state of change, and both individual photos are given unique feeling and effect.

Bandopadhyay reiterates that timing makes contributions to the photograph and the only way to see that is when you allow originality to have a narrative. We have to understand that someone has put something in the photograph for a reason and we need to study why it was put there, otherwise, we risk fetishizing the photograph and the photographer.

Same Picture, Different Frame

In all, Bandopadhyay reiterates that post-damage disaster photographs do not have narrative when they stand alone. Otherwise, they are simply surveillance photographs with little purpose. We can rescue the unpurposive photographs by adding a narrative of some sort with a comparison that shows a state of change. The issue highlighted here is that many of the post-damage photographs are copyrighted, in effect, legally sheltering these images from adopting a fuller meaning and purpose.�� Bandopadhyay is . Ultimately, Bandopadhyay’s findings suggest the US Courts are missing the point of originality when labor, skill, judgment, attention and detail are left out of the conversation when making a determination of originality.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Clearing the History

In Adler’s view, copying and imitation has always been essential to art as evidenced by the Italian Renaissance master Giogrione’s used as a strong reference in 1538 when Titian created the . Adler claims that art has a history of innovation built on emulation. In modern times, digital technology has not only allowed for copying to become a central building block to visual art but has become a technique used by many artists, including Director X and his music video for Drake’s Hotline Bling that uses the spatial light work of American artist . According to YouTube, the����has been streamed over 1 billion times.

Drawing the Line

The Copyright Clause found in Article 1, Section 8, Clause 8 of the United States Constitution empowers the United States Congress “to promote the progress of Science and useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To act as a defense to copyright law,��considers four factors when determining “fair use”, or free and legal use, of copyrighted material that is also able to advance the purposes set out in the Copyright Clause:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. Effect of the use upon the potential market for or value of the copyrighted work.

In 1992, the United States Court of Appeals for the Second Circuit upheld a��copyright infringement ruling��against best-selling American artist for basing his sculpture too closely on another artist’s photograph. The Court relied on Koons’ opinion of what the new art represented and, based on his inability to communicate a substantial difference, the Court ruled against him. In 1994, the��Supreme Court introduced the term “transformative” to determine if the new work, in comparison to the existing work, “added something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In a��separate infringement case, Koons carefully adapted his testimony to the Court’s definition of transformation and stated, “I want the viewer to think about…those images and…gain new insight into how they affect our lives.”

The Court held that Koons’ intention was to create a new artwork and ruled in his favour.�� Adler considers the Court’s definition of "transformative" to be an unreliable standard of measure because it ultimately allows��legal authorities to become curators, arbitrarily deciding an artist's intention, an artwork's��representation and whether the new artwork is sufficiently different than the original artwork.

Copy and Haste

The ability to select media from densely populated online content is a form of rapid curating that has become an issue for the modern artist. Adler was involved in��Cariou v Prince, a landmark 1994 copyright case in the New 91��ɫ Court of Appeals for the Second Circuit. Within 30 of his own collages, American artist��Richard Prince��copied underlying material to varying degrees from American photographer Patrick Cariou.

Prince refused to testify in accordance with the Court’s definition of transformation, and simply stated that he did not attempt to noticeably differentiate his artwork. , the Court was unable to use Prince’s testimony as a basis for differentiation and was forced to adopt a “reasonable person” standard. By simply conducting a side-by-side comparison of each of the 30 collages, the Court concluded that 25 were sufficiently distinct but was unsure of the remaining five, ultimately remanding the insufficiently distinct collages.

Evidently, great uncertainty exists when attempting to claim that fair use progresses the arts. In response to the New 91��ɫ Court of Appeals’ side-by-side comparison, Adler argues the photographer Sherrie Levine’s��identical reproductions��of Walker Evans’ photographs could not coexist with this understanding because the artwork’s meaning transcends visual interpretation.

Redefining the Rule

Adler strongly opposes an authoritative definition of art. Not only does she believe that problems arise from an artist’s forced explanation of their artwork but also that it is inherently difficult to reduce images to digestible ideas for the general public to collectively understand or for courts to effectively rule for or against. In this view, it can be justified that an artist’s intention should be irrelevant to the meaning of their work because it is an arbitrary and ever-changing standard of measure.

For example,����saw his art as collaboration with everyone who viewed it and in a sense disowned authorship of his works, while the works of expressionist����were inherently abstract and are publicly perceived as sharing no immediate identity with the works of others.

Multiple artists, editors or assistants contribute to multiple meanings of the work and consequently displace the responsibility of any individual contributor. Adler provides the example of an unknown editor of Nick Ut’s who cropped out various subjects to focus on the victims of war and, in turn, redefined the original photograph’s meaning and intent. Another example Adler provides is��’s appropriation of��’s photograph of Barack Obama to create the iconic “” illustration. Garcia claims he did not initially recognize the original photo as his own. In Adler’s view, the law’s inability to recognize an artist’s increasing reliance on the work of others is a major source of litigation and is yet another reason to abolish copyright protection for the visual arts.

The Future of Art

Adler’s first step to effectively addressing the issue of copyright and modern art is to stop thinking of art in terms of its message or meaning and to instead think about the economic market. She believes in a modification of the fair use test that incorporates market usurpation because, when it is “art-on-art stealing,” there is no market usurpation due to market’s negligible demand for copies of original artwork. Although it is difficult for some to classify visual art as a simple commodity to be traded among the wealthy, Adler believes this is the direction the market is evolving towards.

The second step, and the more radical of the two, is to abolish copyright for the visual arts because fair use lawsuits would no longer exist. Adler believes the reason copyright protection exists is mainly utilitarian and is based on economic incentives to create ideas. From this, she concludes that the worry is not about the act of copying itself but instead the allowance of a cheap copy to monetize another’s art.

The Art of Crime

Typically, the theft, duplication and resale of other types of art such as motion pictures and sound recordings create an economic loss for the rightful owner. However, in the visual art market, Adler claims there is no market substitution between copies and authentic originals. What about moral rights? Adler answers that, in the United States, an infringement of moral rights for violating copyright only applies if an individual has used a limited edition photograph of��. She claims that most works of visual art do not have a re-sale value and that over 99% of visual art cannot be resold, with the exception of a small class of considerably successful artists. To incentivize the creation of art, it is important to promote the revenue generated from the first sale of an original artwork, as it is the most lucrative because the value of a copy is simply a small fraction of the first sale.

For example, Richard Prince took screenshots of����from a burlesque collective, the Suicide Girls, and turned the original screenshot into original prints that sold for $90,000 or more. Instead of taking legal action, the Suicide Girls and tried to sell them for $90. However, because visual art is more concerned unique, authentic originals rather than duplicates, the market did not react in favor of the Suicide Girls.

To resolve this discrepancy, Adler claims that the only artists generating significant revenue from copies, although relatively a small amount, are those who are already capable of generating large amounts of revenue from their original artwork. In a sense, Richard Prince conferred money on the Suicide Girls as a result from his copying. Adler believes that this economic distribution is made possible by modern artists continuing to rely on imitating their surroundings, now virtually limitless in an interconnected and online world.

As a co-founder of a visual art collective, I agree that the use of open-source references and online images allow for greater economic prosperity. This freedom grants artists a wider degree of creativity to build their brand, the main force that drives revenue generation. Although Adler’s claims are limited in scope to visual arts and focus on the protection of commercially successful��artists, the abolishment of copyright law may ultimately benefit smaller artists who rely on the copying of another artist’s work for inspiration or reference. Adler reminds us that, while unfortunate to some, the��art market values the brand of an artwork's creator more than the content of the actual artwork.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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At first sight, Prince’s new exhibit might seem like a blatant infringement of copyright, but as with all of his work, Prince plays with details. When trying to determine whether a certain work falls under fair use, US courts look at : 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work. However, the underlying concept at the core of the fair use doctrine is the concept��of transformative work: “in order to qualify as fair use, a new work must generally alter the original with ‘.’” Thus, the more transformative the work is, the ��the consideration��given��to��those other factors will be.

Combining��all these elements makes it difficult to��predict the��outcome of a potential lawsuit against Prince. The only addition��to the original��pictures, aside from Instagram's distinctive��visual characteristics, is a comment from what seems to be Prince’s very own account on the social media platform. Whether or not such an addition could be considered enough to make New Portraits transformative is uncertain. Courts have that “cosmetic changes [to a certain work do not] necessarily constitute fair use. A secondary work may modify the original without being transformative.” As explained in ��(Prince's most recent infringement case), such a transformation must be noticed by a “reasonable observer,” the artist’s original intent therefore being irrelevant. The application of the reasonable observer test has not been clarified��further��by the Second Circuit.

As with the majority of Richard Prince’s work, New Portraits has sparked very polarized reactions. Some have acclaimed the artist, qualifying his art as “,” since Prince’s work “.” Yet, regardless of the praise the appropriation artist has received��from connoisseurs such as , art critic for the New 91��ɫer, see New Portraits as intellectual laziness. go as far as saying that his work has no inherent value, and the only explanation for��people’s willingness to shell out so much money for his work is that it hangs in a gallery.

So far, none of the concerned original posters have expressed a desire to sue Prince. The most proactive action against the artist has been taken by Missy Suicide, founder of the model website Suicide Girls. Following Prince’s use of five screenshots��from Suicide Girls’ Instagram account, she��decided to take an alternative route and of those screenshots for 90 dollars (a choice Richard Prince whatsoever).

The��lack of legal action to date does not necessarily mean there is no case to be made. think Instagram might have one, contractually speaking. According to their , users of the social media platform cannot “reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, transmit, broadcast, sell, license or otherwise exploit the Instagram Content.” Considering the nature of Prince’s exhibit, the appropriation artist seems to have��contravened those terms. However, while suing the artist who seems appealing, some believe it might just play into his favour.�� That is, such a decision could make Prince “,” therefore adding a new message these photographs.

Regardless of Prince’s intentions, his work undeniably offers��occasion to question our current copyright system. As fair use is an institution whose purpose is to “,” it is a legitimate concern to ensure��its��current boundaries allow copyright law to successfully meet that goal. New Portraits might not please everyone, but��changes are��often��sparked by controversy and that is a game at which Richard Prince clearly excels.

Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal��

The post New Portraits: May Richard Prince Fair(ly) Use Your Picture? appeared first on IPOsgoode.

Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.

A has led to some uncertainty as subject to protection.

The case involved a Marseille-based photographer, Patrick Box, who authored a photo originally published in a book dedicated to bouillabaisse, a fish stew popular in the south of France.�� The photo depicted two fish, their bodies curved so that they were joined at the face and tail, on a yellow plate on a black background. ��Box later transferred the photograph (among others) to the City of Marseille’s publication, La revue culturelle de la Ville de Marseille, to be used in an upcoming article on the topic of the city’s famous culinary delight.�� The 211th edition was released in December 2005 containing a photo authored by another photographer.�� The new photo contained parts of Box’s original which had been modified by the addition of more fish, all without his permission ( for photos of the original and modified works).�� Unable to reach an amicable solution with the publishers, Box took the case to trial.

Box’s argument is based on (CPI) which grants the author of an original work an incorporeal exclusive right which can be set up against others.�� The existence or conclusion of a rental contract for a work or service by the author of an original work does not bring about a derogation of the author’s rights of enjoyment except where prescribed by law.�� In other words, if the court deemed that Box’s photograph is an original work under Art. 111-1, he is granted protection against moral harm stemming from non-authorized use even though he transferred the photos.

At first instance, the trial judge found in favour of Box.�� The defendants did not contest that the work had been partially reproduced.�� The judge ruled that the photograph, by the choice of the elements which composed it including the colour, lighting, and angle, sufficiently demonstrated a mark of personality of the author constituting an original work.�� The co-defendants were found liable in solidum for €15,165.

The Ville de Marseille appealed the decision, contesting primarily that the photograph should be denied protection accorded to an intellectual work under Art. 111-1 because it does not constitute an original work.�� The Court of Appeal explained that originality signifies the reflection of the personality of the author or the revelation of a creative talent.�� The court warned against confusing originality with mere professional competence possessed by a photographer in general, the latter amounting to a mere prestation of services rather than the creation of a protected work.�� The Court of Appeal was not convinced that Box’s photo sufficiently demonstrated his personality as author and overturned the initial ruling.

The Supreme Court essentially upheld the decision of the Court of Appeal.�� While somewhat reticent about the Court of Appeal’s reasoning which invoked factual elements, the Supreme Court agreed in principle that the explanation that Mr. Box’s services were merely technical was a sufficient response to the arguments brought forth by the parties ( for a more detailed judicial history).

Article 112-2 of the CPI explicitly includes photographs as protected works.�� But if no other formal legal process has been followed to guarantee protection, .�� Proving originality in a legal sense because there are no formal criteria for determining such a subjective question.�� Yet, the stakes are high since the absence of originality will deny the author any protection.�� The law must utilize a similar framework for fields as diverse as software and modern art.�� The decision has that the legal standard for their particular profession is moving in the wrong direction because it demonstrates that even works destined for publication may not be protected.

Others contend that the decision does not demonstrate a problem with the judicial notion of originality or even the capacity of courts to apply such principles.�� This is especially the case with photography, which is highly susceptible to infringement.

The current decision does not draw any particular bright line rule as the court explicitly states that a photograph is still an original work when the personality of the author is revealed through the choices he or she makes in its production.�� Yet, some disciplines may be more susceptible to the difficulties of demonstrating one’s personality in the final work.

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