Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Richard Prince doesn’t have to describe one of his paintings as a Rhino in Hot Pants Shouting, “Repent, Repent!” for it to be so.
Tom Waits on the “meanings” of his songs:
If you break open a song, you’ll find the eggs of other songs. Misunderstandings are really kind of an epidemic and acceptable. I think it’s about one thing, but someone else will say, ‘That song is kind of a rhino in hot pants on a burnt rocking horse with a lariat shouting, “Repent, repent!” I think that’s great.
Why do I bring up Waits rejoicing in the fact someone might hear one of his songs as a “kind of rhino in hot pants on a burnt rocking horse with a lariat shouting, “repent, repent!” Because the lawyer for Patrick Cariou believes that a work of art appropriating another work can only be interpreted to be sufficiently “transformative” of that earlier work if the appropriator expresses in words a transformative purpose. Richard Prince, in appropriating Patrick Cariou’s photographs for his own artistic purposes, said he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material,” that it was “taking for the sake of taking.”
Cariou’s lawyer thinks that Prince’s inability to state an artistic purpose is fatal to his case. In his eyes, the law requires a 2-step process: “First the defendant has to say” he was engaged in a transformative use of the work he was appropriating. “Only then does the court go on to say, ‘Well let’s see if this is reasonably perceivable.’”
As I made clear yesterday, and as I think Tom Waits makes clear far more vividly, it seems absurd to limit the meaning of a work of art to whatever the artist might state it is. Nor is this particular controversial. The phrase “intentional fallacy” was coined in the title of an influential scholarly article (Wimsatt and Beardsley 1946) claiming that artists’ intentions are neither available nor desirable as a standard for assessing art. As has been pointed out, “Intentionalists disagreed, arguing that any sense of the artist’s intention, however obscure, can be a useful resource in interpreting a work of art.”
But the point is, even “Intentionalists” acknowledge that judging, interpreting, and assessing art calls on attention to the art and all it evokes in the eyes of the viewer. Those judgments, interpretations, and assessments are never limited to what the artist wanted the viewer to see and think.
So Cariou’s lawyer is advancing nonsense when he suggests the court should be limited in that way. Nor is the precedent for court reliance in making fair use decisions on the expressed intent of the appropriating artist particularly compelling support for that nonsense. It is true that in Blanch v. Koons the U.S. Court of Appeals for the 2d Circuit relied on what Jeff Koons stated his purposes were in appropriating a photograph for use in one of his paintings. But there were no competing interpretations submitted to the court. As the court pointed out: “Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it.” Quite simply, the court was persuaded by Koons’ explanations. That the court was so persuaded does not mean, however, that the artist’s explanations are the only means by which the court could be persuaded.already stated their intent to parody. Nor, as Cariou’s lawyer contends, did a lower court find that 2 Live Crew’s re-working of Roy Orbison’s “Oh, Pretty Woman” depended on 2 Live Crew’s assertion their song was a “parody.” In fact, the Court found that 2 Live Crew’s words parodied Orbison’s and remanded the case so a lower court might determine (a) whether there had been any negative economic impact on sales of Orbison’s song in the potential “derivative market” of rap cover versions, and (b) whether the quantity of musical elements taken from Orbison’s song were more than necessary to 2 Live Crew’s purposes. Campbell, 510 U.S. at 590-91. After remand, the case settled, and there were no further court hearings.
There are 2 other important points to be made here. First, the Supreme Court made clear that the extent to which 2 Live Crew had “parodied” Orbison’s song was hardly overwhelming and, to the extent it was, that parody was apparent in the perception of a listener, not in Luther Campbell’s stated purpose:
While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. 510 U.S. at 583 (emphasis added).
Even more important, perhaps — given the widely held misconception that “transformative” uses are only those that comment directly upon the appropriated works — is the Court’s statement that if an appropriating work has no impact on the commercial market for the appropriated work the need to find that it comments upon or otherwise “parodies” the original correspondingly diminishes:
A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives . . . it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, . . . taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. 510 U.S., n. 14.
You can be the judge. First, I am including the lyrics of Orbison’s song and 2 Live Crew’s (courtesy of the Copyright Website). The Supreme Court held that the latter were sufficiently transformative of the former to constitute fair use. Second, I am including a recording of 2 Live Crew’s song itself. Is the second a parody of the first? Or does it use the first as raw material to make express its own view of a woman?
Lyrics
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ADDENDUM: I am also embedding below the amicus brief filed by Google in Cariou v. Prince. It does a far better and more extensive job than I at explaining that a “transformative appropriation” need not at all be one that comments or criticizes the original: