The Challenging Copyright Issues of Contemporary Art: Differentiating between Fair Use and Copyright Infringement

Subject: Culture
Type: Exploratory Essay
Pages: 12
Word count: 3125
Topics: Postmodern, Popular Culture


One of the challenges that the courts have faced on cases related to copyright issues is the difficulty in establishing fair use and copyright infringement. The copyright law protects the original work of an author from use by unauthorized person. Any use of another person’s original piece of work including musical, literary, artistic or any other intellectual work without the consent of the author amounts to copyright infringement. However, the copyright law has also developed some guidelines for fair use which allow a third party to use an author’s work without their consent, especially for research and educational purposes. Several cases involving copyright law pose a big challenge of differentiating between fair use and copyright infringements. Complainants often make claims for copyright infringements while defendants argue for fair use. The contemporary art and the use of new media has caused more challenges as many artists appropriate images and photographs of other artists to create their own artworks. The use of internet and the new media makes it more difficult to establish copyright infringement (Driscoll, 2014). This research paper will explore the manner in which copyright laws can be used to protect contemporary artists from copyright infringement in the new media era without compromising on fair use.

Overview of the Copyright Law

Most defendants of copyright infringement cases often defend their course based on the fair use clause of the copyright law. Before differentiating between fair use and copyright infringement, it is necessary to define copyright law and put it into a clear context. In American system, the copyright law is a type of law that gives artists and authors the exclusive rights to create, sell copies, make derivatives, and display or perform their original work (Driscoll, 2014). These rights expire after some period of time, in most cases seventy years after the death of the artist or author. The purpose of the copyright laws is to promote useful arts and science. Currently, the Copyright Act of 1976 is the primary copyright law of the United States. The Act spells out the exclusive rights, guidelines for fair use, the subject matter protected by the copyright, and copyright transfer, and term of protection. Section 106 is of the Act provides five exclusive rights to copyright holders – reproduction, derivation, distribution, performance and display of original artistic or intellectual work.

Copyright Infringement

Copyright infringement is the unauthorized use of any work protected by the copyright law. It is also the act of infringing the exclusive rights of copyright holders by using or appropriating their work. Copyright infringement occurs when a person reproduces, distributes, displays or performs the work of another person without the owner’s consent. The law allows copyright holders, authors or artists to invoke certain technological and legal measures to penalize or prevent the infringement of their copyrights (Shonack, 1994). Disputes involving copyright infringements may be resolved through civil court litigations or negotiations. In this regard, copyright infringement is considered to be an issue of civil law. However, large scale copyright infringements of commercial nature such as counterfeiting may be resolved through the criminal justice system. 

The advancement of digital technology, increasing internet coverage, and widespread use of the digital media have led to increased copyright infringements. For this reason, it is becoming more difficult to apprehend and punish people for copyright infringements. In fact, large companies and associations that depend largely on copyrighted materials pursue and seek penalties on service providers and software distributors who facilitate copyright infringement activities (Shonack, 1994). 

Copyright infringement has become specifically common in the contemporary art through appropriation. Artistic appropriation refers to the process of using pre-existing images or objects without making significant changes to it. Appropriation poses a significant challenge to copyright law because it has been used for a long time as an important aspect in the history of art. In the field of visual arts, appropriation is used to mean a proper way of borrowing and recycling or reusing a part of entire form of a visual culture (Driscoll, 2014). For instance, the Marcel Duchamp’s Ready-mades were appropriated from ordinary objects into works of art, and published under the name of Marcel Duchamp. Appropriation puts an original piece of work into a new context without changing the components or body of the original work. Several cases of appropriation have been considered as copyright infringements, but some people see it as fair use.

Need a custom paper ASAP?
We can do it today.
Tailored to your instructions. 0% plagiarism.

Fair Use

Under the copyright law, fair use is the limitation or exception to the exclusive rights of an author or artist. It was codified in the section 107 of the Copyright Act of 1976. Before the term ‘fair use’ came into use in 1976, federal courts had been using an English version of common law since 1840s. The Copyright Act adopted the common law provisions with little changes. Section 107 states that the fair use of a work of art is not an infringement regardless of whether it technically violated section 106 of the Act (Driscoll, 2014). 

The Fair Use concept applies to works of news reporting, criticism, research purposes, scholarship, and teaching. However, the Act suggests that fair use is not limited to these areas. There are four factors that must be considered when determining whether the use of a piece of art qualifies to be a fair use: purpose and character of the use; the nature of the work; the substantiality and amount of the original work used; and the market effects of the use. The Act was also amended later to include fair use as a defense for unpublished material. For one to justify the fair use of a piece of art, he must justify that it was intended to advance knowledge or progress of the arts. Anything of commercial nature does not qualify for defense under fair use. 

Case Laws

Many of the cases handled by federal and state courts in the U.S. involve the question of whether they involved copyright infringement or fair use. Through these cases, it can be noted clearly that the arguments and counterarguments about copyright law as pertaining the contemporary art are inescapable part of an ongoing process. The cases provide different perspectives on how copyright issues are handled and interpreted; and the impact of new media and technology.

Rogers v. Koons

Art Rogers shot a photograph of a couple holding puppies in a line in 1985 and sold it to be used in greeting cards and other graphic design products. In 1988, an internationally known artist, Jeff Koons, created a statues similar to Rogers’ image (appendix 1). He sold the images at high prices and made huge profits. Rodgers sued Koons for copyright infringement; but Koons defended himself on the basis of fair use by parody. The court ruled that the similarities between the two works were significantly close, and that an ordinary person would recognize the similarity. The judge argued that Koons should have adopted a more generic source to give the same idea without copying the original work of Rogers. Koons paid money to Rogers to settle the case.

This case addressed one of the most controversial issues in art – appropriation. The question is whether one can be able to build on the work of others to create their own work without infringing on their exclusive right of derivative. The case also addresses the issue of photography as a form of art. Do photographs qualify as protected works of art under the copyright law? This case was the starting point in establishing the artistic forms of photography.

Deadlines from 1 hour
Get A+ help
with any paper

The Associated Press vs. Fairey

Shephard Fairey is a famous street artist who created the Hope poster for President Obama’s campaign posters in 2008 when he was running for the presidency. The Associated Press revealed that the design of the poster was based on a photo shot by one of its freelancers, Mannie Garcia (appendix 2). The Associated Press demanded for compensation, but Fairey argued in defense by fair use; arguing that the poster did not reduce the value of the AP’s original photograph (Kennedy, 2011). Settlement was made privately between the parties involved, including sharing of profits made from the work. 

Although this case was never brought to court, nor involved any formal verdict, it has contributed significantly to the understanding of the value of an artwork. Garcia’s photograph gained significant value and fame following Fairey’s appropriated poster. However, Fairey did not seek permission or acknowledge the original artist. 

Cariou vs. Prince

Richard Prince is a highly controversial new media appropriation artist. In this case, he appropriated approximately 41 images from French photographer Patrick Cariou, for use in the Gagosian Gallery. He argued based on the fair use that he created a new meaning out of the original work. In 2011, the Southern District Court of New York held that Prince’s work was infringing on the copyrights of Cariou. The court ordered the unsold works of Prince be compounded and destroyed. The court argued that the work was not transformative because the artist did not justify that he was commenting upon the original work. However, Prince appealed in the Second Circuit where he won the case. The Second Circuit ruled in 2013 that a reasonable observer would see that most of Prince’s work were transformative; hence fair use. The new work was found to be transformative because they created a new aesthetic value. Only five of thirty works under scrutiny did not meet the standard of transformation under fair use. 

This case had a significant impact on contemporary art because it set a new precedence for rulings for fair use. It sets new questions of when and how a piece of art can be considered to be transformative, and when it does not meet that standard. After the case ruling, Prince continued to appropriate works of art, especially images posted on social media, for use in arts galleries; making millions of money out of them. For instance, he made $90,000 for each piece of images pulled from an instagram post and printed on canvas with only a few creepy comments added underneath (Sola, 2015). This issue caused a lot of controversy, but it is most likely that if the case was brought to court there would be a likelihood that Prince would win because he edited the photos to include his comments which would make it transformative. Therefore, there is a big challenge establishing a clear-cut line between copyright infringement and fair value. 

Analysis and Discussion

Based on the three cases above, various issues of copyright infringement and fair use have caused controversies on copyright law. There are cases when artists seem to have infringed on the exclusive rights of others, but the court outcome is different because there are some aspects of fair value that would support the defense. It seems that the application of the copyright laws in the courts is inconsistent; hence the infringement of copyrights may continue. In other cases, however, application of the copyright laws may limit appropriation art which has been of significant transformative value to the world of art.

We can write
your paper for you
100% original
24/7 service
50+ subjects

Copyright infringement occurs when an individual infringes upon the exclusive rights of an author or artist to create, sell copies, make derivatives, and display or perform their works without their consent. However, this law might also limit the ability of artists to appropriate and add new ideas to existing works of art as a way of improving art. If the exclusive rights are overprotected to the extent that artists cannot transform existing art, then art may not be progressive. The purpose of appropriation art is to transform art and make it more progressive. Therefore, the fair use helps in promoting new ideas in art.

The case of Cariou vs. Prince is significant case because it gives room for appropriation of art. The judges recognized the elements of fair value that enables an artist to use other people’s artistic works. One of the factors that are used to determine whether the use of a piece of art is a fair use is the extent to which the artist has transformed the original work. If the author’s work is transformative, then the use of the work is a fair use. The Second Circuit in the case of Cariou vs. Prince ruled on this basis. The judge argued that a reasonable person would see that the work has been transformed from its original form. In a later case, Prince continued to appropriate images he found on the social media, adding only a few comments to make the work transformative. 

Some people such as artist Audrey Wollen of Los Angeles think that Prince is infringing on the rights of original artists by making a lot of profits from an internet community of innocent young girls (Sola, 2015). However, one of the girls whose photos were appropriated from the social media says that she feels honored when she sees her photos at the Gagosian Gallery where Prince displayed them. While Prince transforms and exposes art, there is still an element of profiteering from other people’s work, which is captured in the fair use. These social media fracas and warbles may as well pose new challenges for the interpretation of copyright laws in the future (Edwards, 2016). It is difficult to establish the originator and the substantiality of the use of work of art from the social media because it is mostly a public place.

One of the factors to be considered when determining fair use is the purpose and nature of a commercial nature. In the case of Rogers vs. Koons, the judge ruled against Koons for using Rodgers’ photo to create a statue for commercial purposes. If the concept of transformation was to be applied, Koons would argue that his work is transformative because he has used his new idea of sculpture rather than photography to appropriate an original work. However, the court ruled that he would have used a more generic source to come up with his new work because an ordinary person would notice significant similarities between the new and the old works. If this was to be true, then it would also be argued that there were significant similarities between the original work and the appropriated images in Cariou vs. Prince, because the only thing Prince did was to add some comments; there was no generic source used as required under Rogers vs. Koons

This situation brings out a controversy on what transformative art should look like. Based on Rogers vs. Koons, transformative art is one that uses generic source to come up with a new work, and does not have close similarities with the original work. In the case of Campbell v. Acuff-Rose Music, transformative art is used to mean a piece of art that supersedes the original object, adding new message or meaning. In this case, the judges ruled that a significant transformation overrides the other factors of fair use, such as commercialism. Therefore, the courts will try to see whether the new messages or parts added to an original work adds a significantly new meaning or message to the original work. If the court is persuaded to believe that the extent to which the new content is transformative is significant, then the transformation factor should be given more weight than the commerciality factor. The use of ‘transformative’ versus ‘commercial’ in determining the fair use has become dominant in many court cases nowadays; hence the first factor and transformation are the most important elements of fair use in contemporary art. Nonetheless, the courts may also use other factors to determine fair use.

Get your paper done on time by an expert in your field.
plagiarism free

One of the other factors that are significant in contemporary art is the effect on the value of the work. In this case, the court must determine the extent to which the infringement affects the ability of the original artists to exploit their original work. The court will also establish whether the infringing use has potentially harmed the market of the original owner. The Supreme Court argued in the case of Harper & Row that this principle is the most important in determining fair use; but in the more recent case of Campbell v. Acuff-Rose Music Inc. the same court suggested that all the four factors must be explored and the results weighed together to determine fair use. The four factors are: purpose and character of the use; nature of the work; amount and substantiality; and effect on the value. The third element of amount and substantiality is also very relevant to contemporary art. Generally, fair use occurs when less of the original work is used in the new work. 


This research has explored the aspects of copyright infringement and fair use to determine the factors that the courts might use to differentiate between infringement and fair use in their cases. Recent cases have shown that courts have different verdicts on different scenarios, using different factors of fair use to make their judgment. However, the development of the internet, new media technology and the social media is likely to change the trend of copyright law application in the future. For example, the famous artist Richard Prince has been involved in court battles on the use of appropriation art through technology and the social media. In the ruling of Cariou v. Prince, the work of Prince was found to be substantially transformative, so the court did not find any infringement of copyrights despite the large amount of commercial benefits involved. In this case, it seems that the issue of transformation is taking precedence over commerciality of use; but as noted in Campbell v. Acuff-Rose Music Inc., the four factors of fair use must be explored and weighed together to establish fair use over copyright infringement.


Appendix 1: The art works of Rogers vs. Koons

The art works of Rogers vs. Koons

Appendix 2: The works of The Associated Press vs. Fairey

The works of The Associated Press vs. Fairey

Appendix 3: The Artworks of Cariou v. Prince

The Artworks of Cariou v. Prince

Did you like this sample?
  1. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) 
  2. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
  3. Driscoll, J.M. (2014). It’s a Small World After All: Conflict of Laws and Copyright Infringement on The Information Superhighway. University of Pennsylvania Journal of International Law, 20(4), 939-986.
  4. Edwards, C. (2016). The art of posting: social media, copyright and artist attribution. Internet Law Bulletin, May Issue, 326-330.
  5. Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).
  6. Kennedy, R. (2011). Shepard Fairey and the A.P. Settle Legal Dispute. The New York Times, Jan 12, 2011.
  7. Shonack, S. (1994). Postmodern Piracy: How Copyright Law Constrains Contemporary Art. Loyola of Los Angeles Entertainment Law Review, 14, 281-329.
  8. Sola, K. (2015). Artist Richard Prince Sells Instagram Photos That Aren’t His for $90K. The Huffington Post, May 27, 2015.
Related topics
More samples
Related Essays