Quinn P. Stine
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Constitutional Copyright Policy Applied to Collage and Appropriation Art in the Digital Age

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Quinn P. Stine

(Or, Make Fair Use of This Expression)

Introduction

Artists have a long history of drawing on society’s body of learning and knowledge to animate their imaginations and dreams, often without asking for permission before they incorporate another’s work into their own. It is a practice that has existed as long as art itself. Whether the artist use of another’s work consists of creating variations or incorporating salient aspects of the work, the artist’s goal is usually the effective transformation of the borrowed pieces into a new work of art. Two art forms: collage and appropriation apply this technique to all tangible mediums of fixation. They not only incorporate shapes or styles of other artists but also pictures, logos, and other cultural symbols from the world around them.

The advent of digital technology has led to the digitizing of humanity’s wealth of knowledge and the uploading of it on to the internet. Many collage and appropriation artists still use traditional methods of producing art. However, there is a new generation of collage and appropriation artists who have grown up with digital technology and are naturally using the medium they know best to create their art. They use image manipulation software and digital images which can be found everywhere on the internet. The internet provides a wealth of images just waiting to be transformed into something brand new.

However, there is one problem. Copyright law considers all these people infringers on the copyrights of the original authors of those used works. This is a case where theory and practice do not exactly equal the same result. Copyright law is designed to “promote the progress of science” through the grant of a limited monopoly for a limited time to the author of an original work. In other words copyright is designed to ensure learning, adding to the wealth of human knowledge, by granting authors exclusive rights over their works for a limited time. The judiciary and Congress do not always hold true to this basic truth of copyright law. Congress is persuaded by interested groups to lengthen copyright duration beyond limit of human life, thereby keeping an authors work out of the public domain and stalling the promotion of learning and the advancement of knowledge. At the same time the judiciary does not always correctly apply the fair use doctrine, finding collage and appropriation artists liable for infringement of copyrights on the author’s work they have used.

This overt push by the law, which has been sponsored as it always has by large corporations and all those who believe they have something to lose, has led to an entire generation of unwitting criminals. People who grew up with digital technology and the freedom of information that it has thus engendered are now being led to believe that any use of an author’s work can never be a fair use, a position that is blatantly wrong. Copyright law is being used to push society away from a culture that is free to a culture that demands one asks for permission and pay a licensing fee. It is important for our culture, society, and country that a balance is struck between copyright holders and society at large before it is too late.

Constitutional Copyright Law

Legislation enacted by Congress under the Constitution must comport with the policies set forth by the Constitution. Copyright law is legislation enacted by Congress under the Constitution. Therefore, copyright law must comport with the policies set forth by the Constitution. Article I, Section 8, Clause 8 (copyright clause), of the Constitution grants Congress the power to enact copyright legislation.1 At the same time it also limits the extent for which that power may be used by setting forth three policies that any legislation enacted by Congress must comport with in order to be constitutional. 2 To ensure the general welfare of the public copyright legislation must be designed to promote learning and the advancement of knowledge, preserve the public domain by only granting to authors an exclusive right to their writings for limited times, and protect the author’s exclusive right subject to the public’s reasonable access of the author’s copyrighted writings.3

These policies are evidenced in the clause itself, which provides:

“The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries.”4

The copyright clause embodies both copyright and patent law and must be separated for a clear reading of the purposes of copyright law. The copyright clause separately read empowers Congress to enact copyright legislation for the promotion the progress of science, by securing for limited times an exclusive right to authors in their writings.5 At the time the Constitution was ratified, the term “science” meant “knowledge or learning.”6

The first and most fundamental constitutional policy set forth by the copyright clause is the promotion of learning and the advancement of knowledge.7 Learning is a process that results in the acquisition of knowledge. Knowledge is the accumulation of information and information are ideas. To promote the learning and advancement of knowledge copyright protection does not encompass ideas. They are free to spread, change, and evolve allowing society’s culture to flourish.8 This means that some parts of an author’s writing are uncopyrightable because they are only ideas. As Judge Learned Hand described in Nichols v. Universal Pictures Corp.,

Upon any work . . . a great number of patterns of increasing generality will fit equally well. As more and more of the incident is left out. The last may perhaps be more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.9

Copyright only protects the author’s expression found in the four corners of his writings and not the ideas on which his writings are based – this is the idea/expression dichotomy.10 The distinction between ideas and their expression ensures that the public will be able to learn from the ideas and create new writings based on them, advancing knowledge in the process. The distinction between ideas and their expression also evidences another distinction by the copyright clause, which is the distinction between the public’s use of an author’s writing and the public’s use of an author’s copyright of that writing. 11 The personal use of a writing is the most basic way learning occurs and knowledge is advanced.

The mechanism for effectuating the copyright clause’s fundamental policy are contained within the other two policies: preserving the public domain by only granting authors an exclusive right to their writings for limited times, and protecting the author’s exclusive right subject to the public’s reasonable access of the author’s copyrighted writings.12 The limited exclusive right given to authors is a proprietary incentive to encourage the creation and distribution of writings.13

However, the copyright clause does not guarantee profit. Only the market and marketing will determine profit and the copyright clause should not be used for a market substitute.14 This was not been entirely lost by all members of Congress during its discussions of the Bern Convention Implementation Act of 1988.

[T]he Constitutional purpose of copyright is to facilitate the flow of ideas in the interest of learning . . . the primary objective of our copyright laws is not to reward the author, but rather to secure for the public the benefits from the creations of authors.15

The intentional grant of a limited monopoly to authors in the expression of their writings is ultimately designed to benefit the public. Authors create and distribute allowing the public to benefit by using the material to learn and advance knowledge. This fundamental policy is sometimes obscured by authors who zealously seek an absolute monopoly of any use of their writing or copyright.

The second policy embodied in the copyright clause is the preservation of the public domain by only granting to authors an exclusive right to their writings for limited times.16 The public domain is a collection of “writings” whose expression no longer have a copyright and may be freely used by authors to create new writings which may then qualify for copyright protection. The copyright clause preserves the public domain by restricting the grant of exclusive rights to “limited times.” After a limited amount of time, an author’s writing loses its copyright and falls into the public domain ensuring the fulfillment of the fundamental policy of the copyright clause, the promotion of learning and the advancement of knowledge.17

Once the limited time has passed those writings become part of the public domain and cannot be recaptured by copyright protection.18 Preservation of the public domain is imperative since all of an author’s writings in essence come from the public domain. The copyright clause grants Congress the power to give a “limited proprietary control of writings composed of ideas and words – materials taken form the public domain.”19

Authors are not free to take and recast public domain material and [then] use copyright to obtain a private benefit without making the work available through public access for the advancement of learning.20

When the Constitution was ratified “limited times” meant fourteen years from the time the writing was published and included a renewal period of another fourteen years.21 Today “limited times” as codified means a copyright on an author’s writing lasts from the time it was fixed in a tangible medium until the end of author’s life, plus another seventy years.22 Corporations who are authors enjoy copyright protection for ninety five years from the date of publication or one hundred and twenty years from the date of creation, whichever is shorter.23

The third policy embodied by the copyright clause is the protection of the author’s exclusive right subject to the public’s reasonable access of the author’s copyrighted writings.24 The public’s reasonable access in the context of copyright law is personal use and the doctrine of fair use.25 In the context of the 18th century the author’s “exclusive right” was only the right to publish which fulfilled copyright’s fundamental policy the promotion of learning and the advancement of knowledge by incentivizing distribution. 26 Today copyright is actually a bundle of exclusive rights including the right of reproduction, the right to prepare derivative works, the right to publicly distribute and display, and the right to publicly perform.27

The definition of “writings” has also been expanded to include all types of tangible medium that represent “original works of authorship.”28 These exclusive rights only exist because they are granted to authors by statute. Therefore, copyright law exists as a statutory grant of a limited monopoly to an author in his writings.29 This again is evidence of the distinction between ideas and their expression and the distinction between the public’s use of an author’s writing and the public’s use of an author’s copyright of that writing. 30 The difference between use of an author’s writing and use of a writing’s copyright is the difference between personal use of the writing and fair use of the writing’s copyright by the public.31 Since the copyright clause only authorizes the grant of a limited statutory monopoly in the form of a series of rights it follows that those rights granted are not proprietary in nature but regulatory.32

The personal use of a copyrighted writing is logically always allowed.33 Without this crucial ability of the public to make personal use of any particular writing the fundamental policy of copyright goes unfulfilled. Fair use is the public’s ability to infringe the copyright of a writing. Without an exception for fair use, copyright protection would inhibit the promotion of learning and the advancement of knowledge by making copyright a complete rather than a limited monopoly.34 Although authors have the right to seek profit from their writings, a complete monopoly would extend that right to an unacceptable extreme. “To deny [personal and fair use by the public] would be to employ copyright law to control the conduct of countless citizens for alleged financial benefit of a few.”35 The market and marketing method will determine the success of a writing not the presence of a copyright.36 In Folsom v. Marsh, Justice Story described fair use as a question.37

The question, then, is, whether this is a justifiable use of the original materials, such as the law recognizes as no infringement of the copyright of the plaintiffs . . . . [I]n deciding question of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profit, or supersede the objects, of the original work.38

Personal use can be equated to the use of the writing and is mainly non commercial, while fair use can be equated to the use of the copyright and potentially commercial.39 The role of fair use in copyright law is to ensure that copyright law does not unduly burden the dissemination of knowledge or burden the public’s First Amendment rights.40 If copyright protection were a proprietary right instead of a set of regulatory rights copyright law would conflict with the First Amendment right to free speech by giving the owners of copyrights a complete monopoly over both the writing and the copyright in the writing.41

Copyright protection is a burden on free speech rights because of the limited monopoly given to authors that governs how the public may use the author’s expression of his ideas. However, as copyright protection burdens the public’s First Amendment rights, fair use lessens the burden.42 Fair use acts as a pressure release valve to minimize the effect the grant of a limited monopoly in writings has on the First Amendment. Fair use has become particularly important in today’s world as exclusive copyrights given to authors have become more expansive and draconian.43 The advent of the licensing of information is a specific example of how copyright burdens free speech.44 Licensing amounts to a user tax on the ideas a writing contains, impeding the copyright clause’s fundamental policy of the promotion of learning and advancement of knowledge.45

Fair use began as a judicially created doctrine but is now codified and plays a major constitutional role in ensuring copyright law adheres to the constitutional policies set forth by the copyright clause.46 The founding fathers of the United States understood the importance of the limitations placed on Congress through the copyright clause when granting authors an exclusive right and the importance of learning and the advancement of knowledge through the spread of ideas.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He, who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. [Ideas] then cannot, in nature, be a subject of property. – Thomas Jefferson.47

Good Artist Borrow, Great Artists Steal

Art is not created in a vacuum. An artist is inspired by his environment and makes use of the ideas and expressions that surround him, borrowing them consciously or unconsciously. An artist reinterprets ideas and expressions bringing to life his own vision. Traditionally, artists freely use and transform anything that inspires their own art. An artist might use other art forms, styles, personal experiences, past and current events, or anything particularly interesting to the artist. An artist in his creative process draws on the sum of their learning and knowledge and distills it into a visual medium, the final product of a vision that was once only in the mind of its creator.

Using ideas and expressions from the world and transforming what was used into a new creation has been recognized as a common practice of artists.48 New art builds on the ideas and expressions of previous generations. As art historian Leo Steinberg wrote:

Art is always about art, and art history is a cumulative progression of what has come before. Artists, because of their obvious interest in the knowledge of art, draw on this knowledge and familiarity as readily as they draw on other experience. An artist may reuse existing images, along with other elements, because they are available and suitable; and because they may give the borrower and the newly formed work a place within the ongoing history of art.49

Drawing on ideas and expressions with the intent to transform them will continue despite the enlargement of the copyright monopoly given to copyright owners. Artist will continue to create and use their environment as a template, it is their way. If personal and fair use is given as much weight as it should be accorded much of what an artist will create will fall within them. Many artists fail to ask permission to use the copyright of another’s work let alone even consider if a particular work is copyrighted while they are in the process of creating.

Joy Garnett draws inspiration from photographs, often anonymous ones, she finds on the internet for imagery in her paintings.50 “Part of the subject of my work is the relationship between found sources, such as photographs, and the transformative act of painting.”51 She found one of the photographs she chose to transform on an anarchist website; a photograph of a man preparing to throw a Molotov cocktail.52 Little did she know that the photograph was taken by Susan Meiselas and published in a book called Nicaragua.53 Ms. Garnett was shocked to say the least.

I didn’t even know. How could I ask her permission? I wouldn’t have asked her permission anyway. I mean, implicit in that would be that for every moment of my creative process, I would have to be concerned with finding the authors of these photographs, contacting them for permission, and dealing with their attitudes about permission.54

It is important to note that using another’s work to transform is not copying. Copying is traditionally regarded as a replica of another work. 55 In today’s terminology, a photocopy can be a replica because every aspect of the work is duplicated exactly as if it were the original. As the philosopher Arthur Danto suggests, a “copy[ist’s replica] lack[s] the properties of the original they denote and resemble. A copy of a cow is not a cow; a copy of [a work of art] is not [a work of art].”56

Vincent Van Gogh is recognized as one of the first artists to widely and actively use the work of other artists. He borrowed from a wide range of sources including Rembrandt, Delacroix, Millet, Daumier, and Doré.57 Van Gogh used the work of other artists as a starting point then transformed the desired components into his own works of art.58 He took a “multivalent approach to [using other’s works] and the freedom he took in translating a work of another artist into his own idiom.”59

Pablo Picasso built his art on the tradition Van Gogh helped establish. Picasso once said, “A[n artist]’s atelier60 should be a laboratory. One doesn’t do a monkey’s job here: one invents.”61 Picasso regularly used multiple sources and combined them into a single work of art. He would use prominent features of well-known paintings or the paintings themselves then use them in a new context in his own work.62 Picasso used Jorge Manuel Theotocopuli’s El Greco, Portrait of a Painter to create his own work which he entitled Portrait of a Painter after El Greco (See supplement 1-A).63 Under today’s copyright law Picasso, absent a defense of fair use would likely found to have infringed Jorge Manuel Thotocopuli’s copyright in El Greco, Portrait of a Painter.

Pablo Picasso extended the idea of incorporating other’s works into his art to items found in modern life and created an art form that is now familiar to all school children – the collage.64 The collage’s very premise is using imagery and materials from the surrounding environment to create a work of art. Picasso’s The Dream, one of the first examples of collage, began with a brown cardboard sheet bearing a logo of a Paris department store. 65 He then proceeded to transform the thoroughly bland piece of modern life into art by turning the logo upside down and adding drawings to it that emphasized the logo.66 The Oxford English Dictionary defines collage as, “[a]n abstract form of art in which photographs, pieces of paper, newspaper cuttings, string, etc., are placed in juxtaposition and glued to the pictorial surface.”67 The definition describes what a collage can physically be, but what a collage stands for is often entirely up to the viewer.

Picasso’s collages are thought to emphasize the material existence of the components in the collage.68 The components of a collage “allows us to see that it is somewhere in the gulf between the bright optimism of the official world and its degraded material residue that many central experiences of modernity exist.”69 The idea of using objects from modern culture as a means of social commentary has endured to the present day in the form of appropriation art, of which collages are still a part.

The Oxford English Dictionary defines appropriation art as “[t]he practice or technique of reworking the images or styles contained in earlier works of art, esp. (in later use) in order to provoke critical re-evaluation of well-known pieces by presenting them in new contexts, or to challenge notions of individual creativity or authenticity in art.”70 This definition accurately describes appropriation art which can be viewed as a modern day expression of Picasso’s use of the collage. Appropriation artists, as Picasso did, transform images found in modern society into works of art. Appropriation artists feel that today’s culture is saturated with imagery to the point that the only way to effectively comment on and communicate with society is to appropriate the images found in modern society.71

Douglas Crimp is considered to have “given birth” to a more recent permutation of appropriation art with his Pictures exhibition in 1977.72 Pictures was an exhibition of the work of several different artists that was designed to describe the abandonment of the artistic medium in favor of works “whose dimension[s are] literally or metaphorically temporal, and which do not seek the transcendence of the material condition of the signs through which meaning is generated.”73 Crimp described his exhibition the following way,

In choosing the word pictures for this show, I hoped to convey not only the work’s most salient characteristic – recognizable images – but also and importantly the ambiguities it sustains. [T]his new work is not confined to any particular medium; instead, it makes use of photography, film, performance, as well as traditional modes of painting, drawing and sculpture. Picture, used colloquially, is also nonspecific: a picture book might be a book of drawings or photographs, and in common speech a painting, drawing or print is often called, simply, a picture. Equally important for my purposes, picture, in its verb form, can refer to a mental process as well as the production of an aesthetic object.74

Crimp appropriated images and medium to convey his view of culture and society, as he put it, “underneath each picture there is always another picture.”75

In the wake of the digital age, many facets of public life have moved to a digital format, including the art forms of appropriation and collage artists. If appropriation artists did not feel that society was saturated with imagery before, they certain must now. The challenge for any artist has always been to create art that compels the viewer to think about what they are viewing, especially in appropriation and collage art. In the age of digital technology this has become increasing difficult. Today’s world “has become numb and spoiled, bombarded as it is with an onslaught of images.”76 Modern culture is more than saturated, with images, they are everywhere. People are inundated with them everyday, by billboards that change images in the time it takes to drive by them; by televisions located everywhere from classrooms to bathrooms; and smart phones that can be directed to recall a seemingly endless supply of images, videos, and advertisements. Images are everywhere and they are more or less unavoidable. This has led digital art to, in some cases, depict the blatantly impossible to draw the attention of the viewer.77

Collage is one form the digital art can take. Valie Export and John Stezaker are digital appropriation artists who create their works of art using collage.78 Export, who was one of the first artists to employ a computer in her collages, creates collages that are computer-generated mixes of female anatomy and architecture.79 Like other appropriation artist before her, Export uses the juxtaposition of the images to comment on the society and culture from which they come.80 In her words, “self representation and social representation qualify each other in images which show the trace of reality’s menace, and the strength of its utopia.”81

In a similar vein, Stezaker appropriated photographs from Edwardian magazines on posture for an art series on the human body.82 By digitally splicing photographs of male and female halves together, Stezaker created an optical illusion for the viewer, whose eyes attempt to reconcile the two halves, deconstructing the halves in the process.83 These artists show how appropriation’s need to “borrow, plunder, and rework the image” through technical resources and has become part of the digital art culture.84 Digital technology has become just another tool artists may call upon to bring their visions to life in a fixed tangible medium.

Shepard Fairely is a digital appropriation artist that has recently received a lot of attention for his Obama “Hope” poster (See supplement 1-B).85 Like Joy Garnett, Fairely found a photograph of Obama on the internet.86 Also like Joy Garnett, he transformed the photograph into a work of art. Fairely used a photograph taken by Mannie Garcia for the associated Press as a reference for this poser.87 After being confronted by both the Associated Press and Mannie Garcia for credit and compensation for his use of the photograph, Fairely is seeking declaratory judgment that his use of the photograph was a fair use. 88 However, this question has yet to answer by the court.89 Digital appropriation and collage artists have a vast amount of digital media work with, mainly thanks to the internet. Print is relatively easy to understand, but how are digital images made?

The Magic of Digital Images

In the movie Explorers three young teenager boys build a spaceship with technology given to them by aliens in a dream. These teenagers meet the aliens in space where they are given a glowing device. When the boys ask what the object is, the aliens simply reply “the stuff dreams are made of.”90 This phrase seems to describe the accumulated images and perception used to bring our dreams and our imagination to life.

It is fitting that the Explorers’ audience is led to believe the object given to the boys is technological in nature because today developments in digital technology have advanced to the point that it is possible to bring one’s dreams and imaginations to life through technological means. However, the material used is not a glowing object but computer programs. In becoming a trained artist, Picasso studied and used the works of those who came before him. A digital artist must also do as Picasso did, however instead of paint and brushes, a digital artist must understand the dynamics of how digital images are constructed and manipulated by digital technology.

Information contained in a digital device is perceived by the device as series of ones and zeros.91 Each zero and each one in any given series is called a bit.92 When eight bits are combined they are collectively called one byte.93 A byte contains 256 possible combinations of bits and is the smallest unit a typical digital device needs to process usable information.94 Through different combinations of bits, the device is able to produce any given image that appears on its screen encompassing both color and text.95 In a black and white image, each bit represents one color.96 Zeros represent white and ones represent black.97 Color variation of the image increases as more bits are added to the image.98

When digital artists set out to recreate their dreams and imaginations, they use pixels to do it. Digital image manipulation software enables the user to “manipulate pixels like a sculptor molds clay.”99 Software like Photoshop mainly focuses on the digital image known as the bitmap.100 A bitmap is the digital equivalent of a mosaic; both are comprised of a grid of smaller pieces.101 The smaller pieces when put together make up the image in its entirety. In the case of the digital images these smaller pieces are called pixels.102 Pixels are the smallest part of a digital image and its most basic component.103

A bitmap is then subjected to two considerations, bit depth and resolution.104 Bit depth describes the amount of bits contained within an image vis-à-vis color variation.105 The more bits contained in an image the greater the color variation of that image.106 Resolution describes the amount of pixels per inch (ppi) there are in an image, which determines what size an image can be reproduced at for print or another digital medium without becoming pixilated.107 Pixilation occurs when an image’s resolution or ppi is low causing the bitmap (the grid of pixels that embody the image) to show.108 The higher the resolution the more pixels are contained within the image, which means greater color variation within the image.109

An increase in the amount of pixels means an image has a larger bit depth and resolution and as a consequence capable of producing greater color variation. This is because each pixel contains its own individual color.110 The colors contained in the pixels are then blended by our eyes, an effect known as optical mixing, and are combined into the image that appears on the screen.111 Digital images are not the only images created through optical mixing. The Georges Seurat painting A Sunday Afternoon on the Island of La Grande Jatte is also an example of optical mixing. When created by traditional methods, such as painting, the method is called Pointillism.112 Pointillism is a method of creation in which tiny dots of color are carefully combined (in the same way a digital picture combines pixels) so that when the image is viewed from a distance the dots of color form a whole image.113

Once a digital artist masters the manipulation of the pixel and begins to bring their dreams to life through images, a host of possibilities emerge. Digital collage and appropriation artists have, thanks to the internet, an almost endless stream of digital images containing pixels waiting to be manipulated in every way imaginable. However, once their manipulation is complete these artists must still grapple with accusations of infringement under copyright law, as Shepard Fairely is finding out.

Requirements to Obtain Copyright Protection

To secure a copyright in a work, the work must have an author and be original.114 Section 102 of the 1976 Copyright act requires that the work be an “original work of authorship.”115 An author is simply “he to whom anything owes its origin; originator; maker.”116 An original work is new and contributes to the promotion of learning and the advancement of knowledge, thereby fulfilling copyright’s constitutionally mandated purpose and deserving of copyright.117 “The sine qua non of copyright is originality,” it just could not be any other way.118 The requirement of originality also means that there is some level of creativity that has been put into the new work by the author.119 However, the level of creativity necessary to be original is minimal.120 The minimal level of creativity can be “utterly lacking or so trivial as to be virtually nonexistent,”121 but it must be there.

In addition to being original and possessing a minimal level of creativity an author’s new work must also be,

fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.122

The requirement of fixation has a constitutional basis. In Goldstein v. California the Supreme Court interpreted the copyright clause’s protection of writings “to include any physical rendering of the fruits of creative intellectual or aesthetic labor.”123 The 1976 Copyright Act requires fixation in “any tangible medium”124 which is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”125 A “tangible medium” is broken into “phonorecords (which are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work)”126 and “copies (which are material objects, other than phonorecords, that a work may be fixed in).”127

The 1976 Copyright Act considers “a work ‘created’ when it is fixed in a copy or phonorecord for the first time.”128 The 1976 Copyright Act did away with the requirement that a work be published before it was eligible to receive copyright protection. Modern copyright protection begins the moment the original work of authorship is fixed in a tangible medium of expression (copies and/or phonorecords). Given the rather low bar at which original works are judged, it is fair to say that much of what is created by authors will qualify for copyright protection, including digital collages and appropriation art.

The Bundle of Copyrights under a Digital Regime

Digital technology has led to the enlargement of the limited monopoly granted to authors by the copyright clause. This is due to general confusion about the function of copyright law and whose interests it was primarily established to protect. The expansion of the limited monopoly is also a result of disagreement about how copyright protection should apply to digital technology given the nature of its properties. The various positions are summed up by John Barlow’s description in his piece Economy of Ideas written for Wired magazine:

If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without it even leaving our possession, how can we protect it? . . . Since we don’t have a solution to what is a profoundly new kind of challenge, and are apparently unable to delay the galloping digitization of everything not obstinately physical, we are sailing into the future of on a sinking ship. This vessel, the accumulated canon of copyright . . . law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as from without. Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial.129

Digital technology presents certain problems for copyright law that will not be solved by disregarding the constitutional policies of the copyright clause by further enlarging what is suppose to be limited monopoly. Despite the fact that copyright law has allowed the enlargement of the limited monopoly, it is the current law and it applies to digital technology. An author’s exclusive rights are granted in section 106 of the 1976 Copyright Act and include the right of reproduction, right to prepare derivative works, the right to distribute, the right to display, and the right to perform.130 In the digital age it is possible to infringe on these exclusive rights in a single act. Digital works will likely always be considered either visual art or pictorial, graphic, and sculptural works as defined by the 1976 Copyright Act.

The 1976 Copyright Act defines pictorial, graphic, and sculptural works to include “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions . . . such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.”131 Visual art is defined by the Act as “a painting, drawing, print, or sculpture [a still photographic image produced for exhibition purposes only], existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author . . . A work of visual art does not include any . . . motion picture or other audiovisual work.”132

Right to Reproduce

Digital collage and appropriation artists use images that have already been created. Artists employ many methods to incorporate others images when creating a digital collage or piece of appropriation art. Images can be digitized by a variety of devices including digital cameras and scanners or could be downloaded from the internet. Using any of these methods to obtain a copy of the desired images could potentially infringe the exclusive rights granted to the author. In the act of capturing these digital images, the digital device the artist is using makes a series of copies that are eventually are saved in the device’s permanent memory.

The right to reproduce is implicated when making “copies” under the 1976 Copyright Act. The Act defines “copies” as, “material objects . . . in which a work is fixed by any method . . . from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”133 In addition the “fixed” work needs to be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”134 When this definition is literally applied to digital images or art, every time a digital file is reproduced intentionally by a person (saved on a device’s permanent memory) or mechanically by a digital device (stored in temporary memory) a potential infringement occurs.

This proposition is supported by case law, despite a House Report stating “the definition of ‘fixation’ would exclude . . . purely evanescent or transient reproductions . . . captured momentarily in the ‘memory’ of a computer.”135 In MAI Systems Corporation v. Peak Computer Incorporated the court applied the 1976 Copyright Act literally and held that “copying for purposes of copyright law occurs when [digital information] is transferred from a permanent storage device to a computer’s random access memory (RAM)”136 RAM is the temporary storage unit of a digital device. Once the device is turned off the digital information is deleted. However, since the copyrighted work is “sufficiently permanent or stable to be perceived . . . for a period of more than transitory duration”137 the court in MAI Systems held it was sufficiently “fixed” to constitute a copy under the copyright law.138

Digital information can then be saved into the device’s permanent memory which would constitute another copy of the copyrighted work. The saved information would be considered an “affirmative step to cause copies to be made”139 becoming another potential infringement. The act of saving the digital information to a device’s permanent memory will meet the conditions of infringement in most cases; the digital information is fixed in a permanent or stable form (in the devices permanent memory), which is able to be perceived with the help of the digital device for more than a transitory period. In essence nearly every action taken with the work of another in the digital context could be considered an infringement of the copyright.

Right to Prepare Derivative Works

Collage and appropriation artists use images that have already been created and turn them into a new piece of visual or pictorial art. Regardless of the medium the artist chooses, the process is the same. For an artist creating with image manipulation software, their medium is the pixel and their tools are those found in software’s tool box. Image manipulation software can be complicated. New works made by incorporating other works are considered “derivative works” under copyright law. A derivative work is defined by the 1976 Copyright Act as, “a work based upon one or more preexisting works . . . which . . . may be recast, transformed, or adapted.”140A digital collage or piece of appropriation art is also a derivative work (like Picasso’s use of Jorge Manuel Theotocopuli’s El Greco, Portrait of a Painter to create his own work which he entitled Portrait of a Painter after El Greco (See supplement 1-A)).141

The derivative work right overlaps with the right to reproduce because in creating a derivative work a person must often reproduce in part or in whole the copyrighted work. However, the derivative work right is differentiated from the reproduction right by its broad and almost all encompassing nature. The derivative work must recast, adapt, or transform the original work from which it is based while still remaining substantially similar to the original work.142 Potential infringements can occur when a derivative work transforms the original while being substantially similar but is not authorized by the copyright holder of the original.

Digital collage and appropriation artists often do not obtain authorization to use a work or part of the work while they are in the process of creating their own derivative work, (Joy Garnett and Shepard Fairely). This potentially limits the copyrightable material of the artist’s derivative work to the material added to the original work, excluding from the copyright all preexisting material.143 The digital collage and appropriation artist’s derivative work must also conform to copyright law’s requirements of being fixed in a tangible medium, originality, and possessing a minimal amount of creativity.144 Additionally, a derivative work is not copyrightable if it is a “slavish” copy (blatant reproduction), it must contain a distinguishable variation on the original.145 Although exclusive rights granted to an author under the 1976 Copyright Act are seemingly broad and expansive, they are limited by the Constitution and fair use.

Applying the Fair Use Doctrine

The Constitutional purpose of the copyright clause is to promote of learning and the advancement of knowledge. Copyright law attempts to accomplish this policy by preserving of the public domain, which is fostered by limiting the duration of the exclusive rights, and protecting the author’s exclusive right subject to the public’s reasonable access of the author’s copyrighted writings.146 Protecting the author’s exclusive right subject to the public’s reasonable access of the author’s copyrighted writings presupposes the right of the public to make personal (typically non-commercial) and fair use (typically commercial) of the copyrighted works.147 However, the public’s reasonable access is often downplayed or ignored by owners of copyrights and courts, especially in the digital age.148 Whether or not a person’s use of a copyrighted work is a personal or fair use must be analyzed in accordance with the constitutional policies of the copyright clause.149 The personal use of a copyrighted work is logically always allowed.150

Fair use was codified by 1976 Copyright Act in Section 107 and states,

[F]air use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified . . .for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education 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.151

Section 107 lists several purposes for which fair use might be used. However, it is important to remember that the words “such as” indicate that, the list of purposes set out in the statute is not an exhaustive list.152 Also, the factors are to be considered in light of the public’s interest and not all factors will be given the same weight in every case where the affirmative defense of fair use is raised.153 There is no bright line rule for fair use and no single factor is determinative, the doctrine’s use as a defense must be judged on a case to case basis.

Blanch v. Koons was a case where all four factors found in Section 107 were satisfied.154 Koons is a collage and appropriation artist who used a portion of a photograph of a woman’s legs.155 Blanch is the owner of the photograph he appropriated.156 The purpose and character of the use element of the test was satisfied by Koons because his use was transformative in nature.157 The court found that his use of the women’s legs “adds something new, with a further purpose and character” and did not supersede the Blanch’s photograph by taking any of the photographs “original creativity or imaginative aspect.”158 Koons’s use of the legs were contained within a new context designed to promote learn and the advance knowledge without unduly causing harm to the copyright owner.159 The court found that his use furthered the policies of copyright and were fair even though the use was commercial.160

Koons satisfied the nature of the copyrighted work because the portion of the photograph he appropriated was essentially public domain material.161 A woman’s legs are in the courts words “banal rather than creative.”162 Public domain material concerns the content of the work and is vested with a public interest.163 The amount of the copyrighted work used is satisfied if the amount is reasonable in both qualitative and quantitative terms when the use is not exploitative.164 The court was concerned with the “amount and substantiality of the copyrighted expression . . . not the factual content” that had been used in the copyrighted works.165 The court found a woman’s legs were not substantial expression and were more factual in nature.166

Koons’s use of the women’s legs did not effect the value of or potential market for Blanch’s photograph.167 The court found Koons’s use was “not a substitute . . . and is in no way competitive” with Blanch’s photograph.168 Koons use of the women’s legs was in a niche market that Blanch could not nor had any interest in taking advantage of.169 In this case harm to a potential market was imaginary.170 Courts normally require the copyright owner to present substantial evidence supporting any claim that a potential market would be adversely affected.171 Blanch v. Koons is a case that shows when fair use is applied correctly and with constitutional policies in mind constitutional ends will be achieved.

Conclusion

While the rights granted to authors under copyright law seem to be expanding as quickly as the technology facilitating it, the doctrines of personal use and fair use remain an important limit on the copyright monopoly. Without devices ensuring reasonable access to the public, authors may stand to gain a profit, but at much too high a cost. The more substantial the copyright monopoly becomes, the less material will be in the public domain. Although it may benefit artists financially at first glance, if the publicly accessible material continues to shrink, they may have trouble creating “original” artwork in the future. The Founding Fathers recognized the correlation between sharing ideas and information and the promotion of learning and the advancement of knowledge in our society. Without the freedom to continue building on the accomplishments of the past, our culture and creativity will be smothered by the greed of old concepts grasping onto the bow of a sinking ship.

Notes

  1. 1U.S. Const. art. I, § 8, cl. 8.
  2. 2Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966).
  3. 3L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  4. 4U.S. Const. art. I, § 8, cl. 8.
  5. 5Id.
  6. 6L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  7. 7Id.
  8. 8John Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, Wired, March 1994.
  9. 945 F.2d 119, 121 (2d Cir. 1930).
  10. 10Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
  11. 11L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  12. 12Id.
  13. 13Id.
  14. 14Id at 222.
  15. 15Berne Convention Implementation Act of 1988, H.R. Rep No. 609, 100 Cong., 2d Sess. 23 (1988).
  16. 16L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  17. 17Id.
  18. 18Id.
  19. 19Id at 50.
  20. 20Id at 53.
  21. 21Eldred v. Ashcroft, 537 U.S. 186 (2003).
  22. 2217 U.S.C. § 302 (2009).
  23. 23Id.
  24. 24L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  25. 25Id.
  26. 26Id.
  27. 2717 U.S.C. § 106 (2009).
  28. 2817 U.S.C. § 102(a) (2009).
  29. 29Id.
  30. 30L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  31. 31Id.
  32. 32Id.
  33. 33Id.
  34. 34Robert Spoo, Fair Use of Copyrighted Works in the Digital Age, California Business Law Practitioner vol. 23 num. 2 (Spring 2008).
  35. 35L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights 193 (University of Georgia Press, 1991).
  36. 36Id.
  37. 379 f. Cas. (No. 4901) 342 (C.C.D. Mass. 1841).
  38. 389 Cas. at 348.
  39. 39L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  40. 40Id at 196.
  41. 41Id at 132.
  42. 42Id at 128.
  43. 43Id at 128.
  44. 44Id.
  45. 45Id.
  46. 46Robert Spoo, Fair Use of Copyrighted Works in the Digital Age, California Business Law Practitioner vol. 23 num. 2 (Spring 2008).
  47. 47John Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, Wired, 84 (March 1994).
  48. 48Susan Grace Galassi, Picasso’s variations on the masters: confrontations with the past (Harry N. Abrams, Inc., 1996).
  49. 49Preface to Jean Lipman & Richard Marshall, Art about Art 6, 6-7 (1978).
  50. 50Marjorie Heins and Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright Control, http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf (Nov. 16, 2005).
  51. 51Id at 22.
  52. 52Marjorie Heins and Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright Control, http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf (Nov. 16, 2005).
  53. 53Id.
  54. 54Id at 22.
  55. 55Susan Grace Galassi, Picasso’s variations on the masters: confrontations with the past (Harry N. Abrams, Inc., 1996).
  56. 56Id at 9.
  57. 57Id.
  58. 58Id.
  59. 59Id at 14.
  60. 60An artist’s studio.
  61. 61Susan Grace Galassi, Picasso’s variations on the masters: confrontations with the past 8 (Harry N. Abrams, Inc., 1996).
  62. 62Id at 12.
  63. 63Id at 13.
  64. 64Brandon Taylor, Collage: The Making of Modern Art (Thames & Hudson Inc., 2004).
  65. 65Id.
  66. 66Id.
  67. 67Oxford English Dictionary Online, Collage, http://0-dictionary.oed.com.library.utulsa.edu/cgi/entry/50043853?single=1&query_type=word&queryword=collage&first=1&max_to_show=10, (last updated 1989).
  68. 68Brandon Taylor, Collage: The Making of Modern Art (Thames & Hudson Inc., 2004).
  69. 69Id at 9.
  70. 70Oxford English Dictionary Online, Appropriation Draft Additions. http://0-dictionary.oed.com.library.utulsa.edu/cgi/entry/50010965?, (last updated Sep. 2001).
  71. 71Emily Meyers, Art on Ice: the Chilling Effect of Copyright on Artistic Expressions, 30 Colum. J.L. & Arts 219, (2007).
  72. 72Isabelle Graw, Fascination, Subversion, and Dispossession in Appropriation Art, Appropriation, (David Evans, Whitechapel Gallery and the MIT Press 2009).
  73. 73Douglas Crimp, Pictures, Appropriation, 78 (David Evans, Whitechapel Gallery and the MIT Press 2009).
  74. 74Id at 78.
  75. 75Douglas Crimp, Pictures, Appropriation, 78 (David Evans, Whitechapel Gallery and the MIT Press 2009).
  76. 76Patrick De Warren, Foreword, in Martin Dawber, Pixel Surgeons: Extreme Manipulation of the figure in Photography 7 (Octopus Publishing Group Ltd, 2005).
  77. 77Patrick De Warren, Foreword, in Martin Dawber, Pixel Surgeons: Extreme Manipulation of the figure in Photography (Octopus Publishing Group Ltd, 2005).
  78. 78Brandon Taylor, Collage: The Making of Modern Art (Thames & Hudson Inc., 2004).
  79. 79Id.
  80. 80Id.
  81. 81Id at 211.
  82. 82Brandon Taylor, Collage: The Making of Modern Art (Thames & Hudson Inc., 2004).
  83. 83Id.
  84. 84Id at 211.
  85. 85http://www.pdnonline.com/pdn/photos/stylus/70085-faireyapcase.jpg
  86. 86Liz Robbins, Artist Admits Using Other Photo for ‘Hope’ Poster, http://www.nytimes.com/2009/10/18/arts/design/18fairey.html (October 18, 2009).
  87. 87Id.
  88. 88Id.
  89. 89Id.
  90. 90Explorers (Paramount 1985) (motion picture).
  91. 91Annesa Hartman, Exploring Photoshop CS: A Designer’s Guide to Image Editing with Adobe Photoshop (Thomson Learning Inc., 2005).
  92. 92Id.
  93. 93Rhys Lewis, Practical Digital Image Processing (Ellis Horwood, 1990).
  94. 94Id.
  95. 95Annesa Hartman, Exploring Photoshop CS: A Designer’s Guide to Image Editing with Adobe Photoshop (Thomson Learning Inc., 2005).
  96. 96Id.
  97. 97Id.
  98. 98Id.
  99. 99Annesa Hartman, Exploring Photoshop CS: A Designer’s Guide to Image Editing with Adobe Photoshop (Thomson Learning Inc., 2005).
  100. 100Id.
  101. 101Id.
  102. 102Id.
  103. 103Rhys Lewis, Practical Digital Image Processing (Ellis Horwood, 1990).
  104. 104Annesa Hartman, Exploring Photoshop CS: A Designer’s Guide to Image Editing with Adobe Photoshop (Thomson Learning Inc., 2005).
  105. 105Id.
  106. 106Id.
  107. 107Id.
  108. 108Rhys Lewis, Practical Digital Image Processing (Ellis Horwood, 1990).
  109. 109Id.
  110. 110Annesa Hartman, Exploring Photoshop CS: A Designer’s Guide to Image Editing with Adobe Photoshop (Thomson Learning Inc., 2005).
  111. 111Id.
  112. 112Id.
  113. 113Id.
  114. 114Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
  115. 11517 U.S.C. § 102 (2009).
  116. 116Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
  117. 117Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
  118. 118Id at 345.
  119. 119Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
  120. 120Id.
  121. 121Id at 359.
  122. 12217 U.S.C. § 102 (2009).
  123. 123412 U.S. 546, 561 (1973).
  124. 12417 U.S.C. § 102 (2009).
  125. 12517 U.S.C. § 101 (2009).
  126. 126Id.
  127. 127Id.
  128. 128Id.
  129. 129John Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, Wired, March 1994.
  130. 13017 U.S.C. § 106 (2009).
  131. 13117 U.S.C. § 101 (2009).
  132. 132Id.
  133. 133Id.
  134. 134Id.
  135. 135H.R. Rep. No. 1476, 94th Cong., 2d Sess. 53 (1976).
  136. 136991 F.2d 511, 518 (9th Cir. 1993).
  137. 137Id at 517.
  138. 138Id at 519.
  139. 139Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F.Supp. 1361, 1381 (Northern District of California 1995).
  140. 14017 U.S.C. § 101 (2009).
  141. 141Id at 13.
  142. 142Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984)
  143. 14317 U.S.C. § 103(a) (2009).
  144. 144Lee v. Deck the Walls, Inc., 925 F. Supp. 576 (N.D. Ill. 1996).
  145. 145Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).
  146. 146L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (University of Georgia Press, 1991).
  147. 147Id.
  148. 148Id at 199.
  149. 149Id at 200.
  150. 150Id.
  151. 15117 U.S.C. § 107 (2009).
  152. 152Robert Spoo, Fair Use of Copyrighted Works in the Digital Age, California Business Law Practitioner vol. 23 num. 2 (Spring 2008).
  153. 153L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights 209 (University of Georgia Press, 1991).
  154. 154396 F.Supp.2d 476 (9th Cir. 2005).
  155. 155Id.
  156. 156Id.
  157. 157Id at 480.
  158. 158Id at 481.
  159. 159L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights 200 (University of Georgia Press, 1991).
  160. 160Id at 201.
  161. 161Blanch v. Koons, 396 F.Supp.2d 476, 481 (9th Cir. 2005).
  162. 162Id at 482.
  163. 163L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights 202 (University of Georgia Press, 1991).
  164. 164Id at 203.
  165. 165Blanch v. Koons, 396 F.Supp.2d 476, 482 (9th Cir. 2005).
  166. 166Id.
  167. 167Id.
  168. 168Id.
  169. 169Id.
  170. 170L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights 202 (University of Georgia Press, 1991).
  171. 171Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).

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