【Research Center for the Legal System of Intellectual Property】

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FAIR use of works of art

RA Akiko Ogawa

A Japanese artist who was awarded the Education, Science and Technology Minister's Art Encouragement Prize in 2006 was accused of plagiarism of the works of an Italian artist. The media widely covered the issue as a big story. Although the alleged artist claimed his works were original, inspired by the paintings of the Italian artist, it was revealed that not only one work but also many works bore an extreme remembrance in composition. In addition, he actually visited the Italian artist's atelier many times and took pictures of his works. All of these reasons created a climate of public opinion concluding that it was not fair to appreciate his works because they were plagiarized. As a result, the award was stripped from him. How should his act be understood in the world of copyright law, then?

Common law has the doctrine of "fair use" or "fair dealing" that does not constitute copyright infringement because a use is "fair". In the United States, the four factors are set to determine the fair use; (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use. In judging the purpose and character of the use, a key point is to determine whether or not the use is transformative.

As a precedent of the art field, there was the case of Roger v Koons(*1) judged at the US Court of Appeals for the Second Circuit in 1992. Art Rogers, a photographer, took a photograph of a couple with their arms full of puppies on a bench. Jeff Koons who found the picture on a postcard made a sculpture using the very same composition. However, the court found copyright infringement because it concluded that no new expression had been added to Koons' work and thus the work was not transformative It was true that Koons made each part of the work in an attempt to make it completely resemble the picture, though there remains a question whether Koons' work had really no single transformative element, in the context of the fact that Koons reconstructed the two-dimensional picture into a three-dimensional sculpture.

Fourteen years later, in October 2006(*2), Koons won another infringement lawsuit for fair use. The work he chose this time was focused a woman's ankles with a pair of sandals taken by Blanch, a photographer, for a magazine ad. The feet placed erotically in a man's lap in a seat what looked like a first class airline seat. Koons saw this ad in a magazine and completed a collage titled "Niagara" by cutting only a woman's leg part out of the photograph and placing it with two other pairs of ankles against various sweets in the background. Eventually Koons was sued again, but this time, the court found his work was transformative and Koons' use of the photograph was fair use.

Referring to the award winning work by the famous artist in question, not only its composition but also coloring, background and atmosphere are full of the elements of the original work by the Italian artist. It seems difficult to determine that it has creativity enough to be considered as transformative. Furthermore, high creativity is presumably needed so as to prove transformative as long as the judgment must be made for the work in the same field of the picture with the same composition and the same materials with the original work.

However, it is not impossible. For example, "Le de'jeuner sur l'herbe d'apre`s Manet(*3)" drawn by Picasso as a homage to Manet's "Le de'jeuner sur l'herbe(*4)" takes on Manet's composition while it is a kind of typical Picasso's work as if it had a carved seal of Picasso on it and anyone can know it is obviously Picasso's work.

Under the condition that his tricks in production process were already revealed, it is interesting to see what kind of works this artist will create in the future. If he continues to insist it is not a copy, I expect his next work which I could catch full of his originality from it.

(*1)751 F.Supp.474 SDNY 1990, 960F.2d301 2d Cir.1992 Also, the picture can be seen at the Harvard Law School's website.
(*2)Blanch v. Koons 05-6433-cv 2d Cir.2006
(*3)Refer to here for the image.
(*4)"Le de'jeuner sur l'herbe" by Manet and Picasso can be seen at the following websites.
Manet
Picasso