When can one use another's work?
In 1984 a black and white photograph of Prince, the singer-songwriter, was snapped by Lynn Goldsmith. This photo was then licensed by Vanity Fair for US $400 to be used by Andy Warhol in making an illustration for an article about one of Prince’s songs, Purple Rain. In adapting the photograph for the Vanity Fair article, Warhol reproduced this photograph many times, tracing it and then colourising it in his well-known silkscreen style. Later on, in 2016, when Prince passed away, this artwork and other images were distributed by the Warhol Foundation and sold to galleries where they can still be seen as artworks ‘created solely by Warhol’. Thereafter, a dispute arose because Goldsmith – the original photographer – did not receive recognition for any of the artworks as they were exhibited in 2016. She felt that in distributing these works the Warhol Foundation needed her permission, or should (at the minimum) give her her due recognition. The Supreme Court of America found in favour of Goldsmith, and so, has set a new, strict precedent in terms of Copyright Law in the United States.
It is commonly known that copying another’s work is not permissible. Within copyright law there are rules which limit how much one can copy of another person’s work – be it artwork or any other creation protected by copyright law. Different nations have different regulations in place: in South Africa and Australia, for example, a reproduction of artworks is regulated by the Doctrine of Fair Dealing. While in the United States of America, it is regulated by the Doctrine of Fair Use, which is more flexible than fair dealing.
Section 12 of the Copyright Act of South Africa contains a closed list of instances when the reproduction of works is allowed. However, in the United States, the Copyright Law defines circumstances with greater ambiguity, by use of the words ‘such as’ before the list of instances, thereby creating an un-closed list. In South Africa reproduction is allowed for research or private study, for personal or private use, for criticism or review, for reporting, for use in court proceedings and in quoting (still only a fair portion of the work). So, for research purposes, one may make a copy of a chapter of a textbook to study it, but obviously one cannot copy the whole textbook. To criticise or review a work, one may copy it in order to undergo an analysis of the work and to judge the material within it: for example, if one is reviewing a film, one may play a clip wherein one is criticising a particular scene or aspect thereof, but one cannot play the whole film whilst critiquing it. Furthermore, all of the above is subject to a reasonableness test. In short, the use must be fair.
Fair use, on the other hand, is much more flexible on what is understood to be ‘used fairly,’ as is the consequence of the wording of the law. The Doctrine of Fair Use is found in Title 17, Section 107 of the U.S. Copyright Law, and recognises that reproductions – in certain instances – do not require permission from copyright owners, which is an aspect similar to fair dealing. Fair use, however, is more adaptable than fair dealing in order to overcome legislative issues arising from the open-ended nature of the written law in the U.S. – as opposed to the relevant Act in South Africa which is not open-ended.
In South Africa, the Copyright Act has in the past been found to make inadequate provisions for new types of technologies. As in the case Golden China TV Game Centre v Nintendo Co Ltd 1996 (4) All SA 667 (A), the court had to determine whether a short clip of images used in a video game could be categorized in terms of being a film, or whether it needed a new definition which was not included within the Copyright Act of the time – considering that the legislators could not have foreseen new technologies such as video games needing copyright protection. As opposed to the restrictive interpretation of the Copyright Act of South Africa, fair use is much more lenient with regards to new technologies as it is more flexible in interpretation.
To assess fair use or fair dealing, the list of factors is largely similar in both South Africa and the United States. Both seek to identify the nature and purpose of the copy, the type of work being copied, the effect of the copy on the original, how much is copied and whether any recognition has been given to the original work and the creator. These considerations aim to determine whether there is a valid reason for using someone else’s work.
In The Warhol Foundation v Goldsmith, the court held that the Foundation’s use of the photograph failed to qualify as fair use and that the new artwork created by Warhol held the same commercial impact and value as the original photograph taken by Goldsmith. When considering the first factor of fair use (the purpose of the copy), the initial copy in Vanity Fair did indeed qualify as fair use. Moreover, it is important to note that the photograph was licensed, and the original photographer did receive compensation for her work. Unlike, in 2016, when no such compensation was received, the purpose of the copy was to exhibit the work as Warhol’s original piece, on a much larger scale, and with greater financial value than the US $400 as it was in 1984. In another U.S. Supreme Court case, Campbell v Acuff-Rose Music, the court held that copying a work was allowed as long as the work was transformative and added new expression and purpose to the work. While in the 1984 Vanity Fair article this photograph of Prince did such, the subsequent distribution upon Prince’s death did not fairly transform the initial work.
Many online forums have expressed that the decision in The Warhol Foundation v Goldsmith is a good one, as it prevents appropriation of smaller artists’ works by greater forces with higher status in the art world. Yet there are opposing views to this that hold the decision as stifling to creativity and the right to fair use which exists within America. It is the opinion of this entry that it depends on the type of work that is being copied. For example, Goldsmith makes a living off of licensing her photographs for reproduction (and many other artists perhaps also depend on this) but there are other artists who have had the rights to their work expropriated, or have had the copyrights to their work infringed. Hence, it is always important to take note of the factors which indicate fair use or fair dealing and to so ensure that the reason behind copying a work is strong enough, and fair, so as to outweigh the reproduction.
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