What is Transformative?

A couple of years ago at a holiday party, I had the privilege of meeting a man who has deeply impacted the way I think about art and intellectual property law. This man wasn’t a contemporary artist, or a legal scholar. He was a federal judge, the Honorable Pierre Leval. Serving in semi-retired status for the Second Circuit Court of Appeals in New York, Judge Leval remains a central figure in the theoretical development of the concept of “fair use” in copyright law.1 It’s difficult to overestimate just how much of an effect Leval has had on contemporary interpretations of fair use, from district and circuit court decisions across the country to Supreme Court rulings. Because of his influence, the judicial system is more amenable to the fair use defense than it has been in centuries.

Additionally, in large part because of Leval’s initiative, there has been a recent surge in interest around fair use both in academia and in the trenches of artistic production. Several books and articles have been written on the subject of late, not to mention the Code of Best Practices in Fair Use for the Visual Arts that the College Art Association released in early 2015.2 These publications have provided an alternative to the “sky is falling” copyright narrative that Lawrence Lessig, James Boyle, and other legal scholars propagated in the late 1990s and early 2000s.3 At that moment, one marked by the rapid growth of an internet still in its infancy, perceived copyright overreach was being criticized according to the top-down, corporate model of production and consumption typically encountered in left-leaning intellectual circles (think here of Adorno’s “culture industry”). It was a great scare tactic: all of culture is being locked down by corporate interests! The possibilities digital tools afford us are being foreclosed because of draconian copyright laws! Yet new waves of electronic folk art rolled in anyway. Enter YouTube. Enter social media. Enter remix culture. Even with lawsuits lurking, over the last decade there has been more appropriation of culture’s images, objects and texts, repurposed as new expressions, than ever before. Given this sea-change, scholars such as Patricia Aufderheide and Peter Jaszi have attempted to reframe the debate around copyright not by calling for the law’s demise, but, on the contrary, calling for a recommitment to that part of the law—fair use—that helps serve copyright’s overall mission: to help advance the arts for the benefit of the public. And this renewed interest in fair use would not be what it is today if it weren’t for Judge Leval and his deployment of one, simple word: transformative.

In 1990, Leval wrote what would become a seminal treatise on the subject of fair use in copyright law. “Toward a Fair Use Standard” delivered an articulation of the doctrine seldom attempted since its first, modern treatment in the nineteenth century.4 That a federal judge with lengthy experience in copyright litigation authored the essay gives it all the more weight; it reads almost as if it’s a court opinion without an actual case. One of the essay’s key passages is worth quoting at length:

In analyzing a fair use defense, it is not sufficient simply to conclude whether or not justification exists. The question remains how powerful, or persuasive, is the justification, because the court must weigh the strength of the secondary user’s justification against factors favoring the copyright owner.

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely “supersede the objects” of the original. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.5

In essence, Leval posits that secondary uses of copyrighted materials stand a good chance of being ruled as fair when it can be shown that through their transformation, they contribute to the accretive process that is culture, further facilitating the development of ideas towards a better understanding of ourselves and the world in which we live.

Yet even with these considerations in mind, the reality is that we’re not much closer to a fair use standard today than we were before the rise of the rhetoric of the transformative.

Fair use in this formulation is tolerant. It’s progressive. Yet for all its openness, the transformative model nevertheless has varying degrees of purchase. It seems particularly well-suited for online spaces, in which video mashups, memes, and the logic of copy-tweak-share generally, obtain. In these and other forms, the repurposing of materials towards new understandings—in political commentaries, parodies of celebrity culture, and outright activism—elicits transformative readings without much difficulty. For example, it’s a rare day that I don’t encounter, through various social media feeds, some appropriated image or video clip. In their re-use of form but also, importantly, their recontextualization of content, these appropriations denounce police brutality, or ridicule Donald Trump, or call attention to climate change. They take original expression with the clear intention of turning it on its head. This does not mean, however, that fair use and appropriation on the internet are synonymous. There is plenty of copying and sharing online that is not transformative, with film and music piracy being obvious examples. But the daily debates over representation, meaning-making, and common sense are made all the more egalitarian when a robust fair use mechanism can act as a cultural and legal mediator.

Transformative fair use as applied to the visual arts is a more complicated matter. On the one hand, fair use has mostly been kind to artists since Leval’s introduction of the transformative. A few cases illustrate this. In Mattel Inc. v. Walking Mountain Productions (2003), artist Thomas Forsyth successfully argued that his photo series Food Chain Barbie constituted fair use through his parodying the toy company’s popular doll. In Blanch v. Koons (2006), the courts determined that artist Jeff Koons adequately transformed photographer Andrea Blanch’s fashion advertisement for use in a painting that Koons argued spoke to issues around crass consumption. And most recently (and controversially), in Cariou v. Prince (2013), an appellate court found that artist Richard Prince’s appropriations of photographer Patrick Cariou’s Rastafarian photos could be “reasonably perceived” as transformative, despite Prince’s testimony that his new paintings contained no underlying meanings or even relation to Cariou’s originals.6

On the other hand, there doesn’t seem to be much consistency in the ways courts have determined the threshold for transformative-ness. Parody in art is allowed wide latitude, as it, like the online examples mentioned above, is the easiest to discern from an aesthetic point of view. Parody’s reliance on exaggeration and absurdity as devices for mockery is well-established. But beyond parody, how are “symbolism, aesthetic declarations, and innumerable other uses,” as Leval termed them so many years ago, to be assessed? We gather that artists are not required to directly, critically target the expressions they appropriate, as Blanch demonstrates; a vague “commentary” suffices (and is fitting for an artist such as Koons, who has always hedged on whether his works criticize or celebrate contemporary culture). And if Cariou is any indication, artists need not convey any message at all in their works; altering appropriated material enough can qualify it as fair use. Yet how much “enough” is remains unclear.

If transformative fair use is so malleable and increasingly artist-friendly, how do we account for Friedman v. Guetta (2011), in which Thierry Guetta—the artist known as Mr. Brainwash—was found to have infringed Glen Friedman’s copyright in a picture the photographer took of Run DMC, in the 1980s?7 In the dispute, Guetta appropriated Friedman’s image as the basis for a series of screen prints that the artist altered in varying degrees, including one in which Guetta juxtaposed the hip-hop artists with a nineteenth century portrait of a caucasian couple. Guetta claimed his works were per se fair use; the court didn’t agree. Setting aside that, at the very least, the “Old Family” Run DMC print could be reasonably perceived to parody the bravado of hip-hop culture, or serve as a commentary on the historically complex nature of race relations in the U.S., the outcome in Friedman is striking, given the case’s similarities to Cariou. In both lawsuits, the respective artist blatantly appropriated black-and-white photos from a documentary/lifestyle photographer, manipulating the materials without consideration for their original contexts. Moreover, the manipulations ranged from the subtle to the unmistakable. The new works also differed from their sources in scale and medium, and they were presented in art exhibition settings. The point here is not that both artist deserved a fair use ruling in their favor (or that neither one did); rather, it’s to show that determining transformative fair use is far from a standardized process.

The contrast in outcomes between Friedman and Cariou is just one example, and we should remind ourselves that every case has its own particularities. Even while relying on precedent opinions, no two courts reach their decisions in exactly the same manner. Furthermore, as dominant as the transformative test has become in fair use assessments, it still comprises only one part of an overall analysis.8 We should also be aware that the legal system is dynamic; it could be argued that the difference between the two cases highlights the improved stance courts are taking when it comes to appropriation-based art. And, of course, not all lawyers argue as persuasively as others. Yet even with these considerations in mind, the reality is that we’re not much closer to a fair use standard today than we were before the rise of the rhetoric of the transformative. We might even go so far as to say that, in seeking to establish a common framework for fair use, Judge Leval may have unintentionally helped expand the doctrine to such a degree that it’s now become unwieldy. When looking to the law for guidance, artist who appropriate copyrighted materials are less likely to find a cohesive set of answers that adequately address their concerns. Or, in real world terms, when the painter Damian Loeb capitulates to legal threats from photographer Lauren Greenfield over the appropriation of one of her images—despite Loeb’s use clearly being transformative—while Richard Prince appropriates from Instagram wholesale, and pundits call his “portraits” fair use, something is amiss.9

These sorts of problems are not entirely new. They have been growing steadily in parallel with the act of copying itself, which has become, as in other spheres of cultural production, routine in contemporary art practice. In the meantime, courts are having to adapt quickly. Thus the recent scholarly interest in fair use has led some academics to propose ways in which to respond to the transformative’s seeming shortcomings. Most radically, in her recent essay “Fair Use and the Future of Art,” legal scholar Amy Adler suggests dispensing with the concept altogether. Assessing the transformative qualities of an art work that incorporates copyrighted material imposes an impossible task, Adler suggests, insofar as artistic intention, the purely retinal, and “meaning” are precisely those norms that contemporary art seeks to destabilize. Adler insists that questioning an artist’s intent, or performing strict formal analyses on the works in question, or taking into account what a reasonable observer might conclude, will only ever yield muddled and arbitrary decisions that perpetuate confusion and, in the worst case, stifle artistic output. The solution, for Adler, is to jettison the transformative, and instead return to the economics-based fair use evaluations that defined many copyright cases pre-Leval.10

Ultimately, we should be skeptical of solutions to the limitations of the transformative that seek to attenuate the articulation of intent and meaning, thereby de-intellectualizing art and leaving its legal viability to the whims of market forces.

As much as I wholeheartedly agree with Adler that the transformative test in fair use is less than perfect and deserves scrutinization, it’s difficult to embrace her proposal for the simple reason that her characterization of contemporary art is flawed. Adler states: “To the extent courts search for artistic intent to evaluate ‘meaning’ and ‘message’ in fair use, they are searching for a measure of meaning that has been rejected as meaningless in contemporary art.”11 As both an artist and teacher of art, I find this claim to be too reductive. It might speak to a stereotype of a certain strain of postmodernism, but it cannot possibly account for the mass of copy-reliant practices today. To Adler’s credit, there is some truth to her generalization that “the goal of current art is to throw the idea of stable meaning into play,” but the logic that art therefore floats in a state of suspended relativism, or meaninglessness, or that artists are consequently absolved from taking responsibility for their appropriations, does not follow.12 There are all sorts of artists today who appropriate with the clear intention of providing new ways to rethink established meanings. Candice Breitz, Penelope Umbrico and Paul Pfeiffer are just a few examples of artists who appropriate in order to engage in a de-stabilizing, but then re-stabilizing, meta-process of critical reflection (that is de-stabilized yet again with future art works). “Meaning” in these artists’ works isn’t dissolved so much as augmented. Ironically, by offering the example of artist Sherrie Levine as evidence of the loss of stable meaning in contemporary art, Adler repeats the thoroughly established—which is to say stabilized and meaningful—discourse of Pictures Generation practices. Ultimately, we should be skeptical of solutions to the limitations of the transformative that seek to attenuate the articulation of intent and meaning, thereby de-intellectualizing art and leaving its legal viability to the whims of market forces.

Contrasting Adler’s approach, the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts places creative intent front and center as a key metric in determining transformative fair use. For visual artists, “The use of a preexisting work…should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.”13 Fair use as it pertains to other arts professionals is handled similarly: CAA’s Code recommends that art scholars be prepared to articulate their “analytic objective” when submitting unlicensed copyrighted materials for publication (for example, in an art history book that includes plates of images); instructors of art should strongly consider their “pedagogical objective” when using copyrighted reproductions in the classroom; the inclusion of copyrighted images and texts for museum display should be justified by the “curatorial objective.”14 After discussing fair use with over 100 arts professionals as well as reviewing prior court decisions, CAA has determined that at worst, being able to explain creative intent when using unauthorized copyrighted material is harmless and at best, it could very well mean that explained uses will be found to be fair.

Overall, CAA’s Code of Best Practices in Fair Use for the Visual Arts performs two primary functions. First, it attempts to raise consciousness in order to build consensus within a visual arts community whose relationship to intellectual property has been marked by much misinformation, confusion and fear of litigation. Second, it seeks to unify various professional practices under the umbrella of knowledge production. The application of paint to canvas, the writing of the historical monograph or exhibition catalog, the delivery of the slide presentation; all coalesce around a common ideational project that contains, at its core, the cultivation of a discourse of art. From this perspective, gauging transformative-ness in works of art via artistic intent can be both a rational and a rationalizing exercise. That is, the emphasis on intent, on an artist’s “objective,” equates art with its logical explication through the spoken and written word. Here the practice of art begins to resemble an almost scientific-like operation: hypothesis (artistic concept/intent), experiment (the art), and result (audience reception). Consequently, there is the potential that during this process discourse displaces art, eventually rendering it unnecessary, not unlike some Conceptual Art in the 1960s and ‘70s. Artistic intent might also be fabricated after the point of production, dressing art up with an intent or meaning that it does not otherwise obviously appear to possess, in order to validate itself within the discourse of art, or, in a more urgent scenario, to defend itself against an infringement lawsuit.

There is nothing inherently wrong with artists thinking through their ideas during the act of making. Many artists (and great artists at that) will tell you that often, a work of art does not become entirely legible until after it has been produced and can be grasped in its totality. Yet art is not, and should not be, wholly coterminous with its after-the-fact explanation in the press release, the wall blurb, or, in the legal context, the defense brief. To think otherwise reduces art to a pretext, a means-ends language game devoid of staying power. Thought at the same time, art is incapable of evading language. Duchamp taught us many things, one of which is that an artist enters into a relationship with language as soon as he or she nominates an art work as such. This is especially the case with contemporary appropriation-based practices, in which the act of repurposing materials presupposes a discursive engagement with them. The ontological status of an appropriated object, image or text, now operating as “Art,” is already given over to the discursive. The relationships between authorship and ownership, craft labor and intellectual labor, artistic autonomy and social agency—these are just some of the threads that are bound up with every appropriating magazine cutout, flatbed scan, or screen capture. Thus, intent-based, transformative fair use merely requests that artists intelligently engage in a set of conversations about the production of art in which they have always already been participants.

Is that really so much to ask? Some may think so, arguing that an emphasis on articulating intent in fair use determinations places an undue burden on artists. It puts those who are less “jargon” savvy at a disadvantage. In any event, artists shouldn’t have to explain themselves; they work in visual languages that are self-evident and transcendent. While such a position is seductive, it nonetheless glosses over the historical development of the artist personae. At its most severe, it conjures a cliché image of the artist as some sort of early modernist idiot savant, unable to relate to the world except through his or her (usually his) mystical aesthetic sensibility. Richard Prince enjoys performing this role, though he is of a generation in which such a posture was still tenable. However, since the heyday of postmodernism, artists have only increasingly matured in discourse-friendly contexts such as graduate art programs, residencies and other extracurricular activities. It is now completely commonplace for artists to have gone through at least two years of sustained theoretical education; indeed, it’s almost impossible to be taken seriously as as an artist today without such schooling.

The model of the artist who is answerable only to his or her creative inclinations, irrespective of intent, is one that posits the artist as a special class of producer to whom the law should not apply.

There is also a deeper, legal issue at stake. The model of the artist who is answerable only to his or her creative inclinations, irrespective of intent, is one that posits the artist as a special class of producer to whom the law should not apply. Any legal mechanism that might compromise unadulterated freedom of expression is cast as an obstacle that must be overcome. But artists, perhaps to their dismay, are not special, or at least not above the law. And free speech, as any firefighter who answers false alarms will tell you, is not entirely unregulated. Ensuring that copyright law is as tolerant of appropriation practices as possible is best achieved when artists approach their raw materials with sensitivity and clarity of purpose. It’s not too much to ask.

To that end, I uphold artistic intent as an integral component of transformative fair use. Moreover, I propose that it play an even more prominent role within copyright law itself. Just as the fair use doctrine originated in judge-made law in the nineteenth century, so too could Leval’s “transformative” model be officially incorporated into the next round of copyright legislation. The doctrine as it is currently set forth alludes to “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” as examples of secondary uses of copyrighted materials that could be considered fair.15 Any change to the law would have to begin with wording that specifically addresses artistic strategies in which appropriation plays an important role. The “four factors” test could then be revised to include artistic intent, formal analysis and expert testimony as aids in assessment. Judges could balance these new factors, along with market substitution considerations, in order to reach a verdict.16 In keeping with the current law, the new language should remain as general as possible while responding to the complexity of current copy culture. It should also retain the spirit of Leval’s original essay in its attempt at reinforcing a concept so central to the ideas of progress and the public good.

In conclusion, I return to the holiday party. When I asked Judge Leval how he felt about the effect the transformative has had on the implementation of fair use over the years, he modestly replied that he didn’t think his contributions had amounted to much. “Besides,” Leval chuckled, “I haven’t been following current copyright cases too closely.” I took the reply both as an attempt to keep the conversation light given the festive context, and as a clue that perhaps Leval felt the model of fair use that he introduced in the 1990s hasn’t evolved exactly the way he’d imagined. And despite my impulse to press the matter further, in my star-struck state I opted, instead, for another glass of the red punch.