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(Left) the original photograph of the Madison mayor, and (right) the tshirt in question. (via US Court of Appeals 7th District opinion)

I’ve been called a lot of things (including, “lawyer”), but one thing I can be proud of is never having been called a liar.

I’ve been saying that appropriation-for-appropriation’s sake is nothing but pure formalist laziness, pretty much since I was born (evidenced here), and others, like this law review article, have also opined on how the Cariou v. Prince case makes no distinction between the right of copyright holder to “transform” her copyrighted work and a secondary user’s fair use right, upheld by a “transformative” judicial standard. Leave it to a Illinois-based judge to pen identical thoughts.

The case concerns the use of a photo of the mayor of Madison, Wisconsin on some t-shirts (see pic above), where the photographer sues the appropriator for copyright infringement.

You have to read the entire seven-page opinion not only to get a good dose of judicial analysis, but also get a sense of how damning the 7th Circuit is of the Cariou court. In fact, I would say that the 7th Circuit (reluctantly) stops short of calling the Cariou court “stupid.”

Noting that the “transformative” aspect of a secondary use is not part of the US Copyright Act but rather judge made (by the US Supreme Court, no less), Judge Easterbrook opines (Brackets added):

“The Second Circuit has run with the suggestion [of transformativeness] and concluded that ‘transformative’ use is enough to bring a modified copy within the scope of [fair use]. [The] Cariou [Court] applied this to an example of ‘appropriation art,’ in which some of the supposed value comes from the very fact that the work was created by someone else.”

That thought alone eviscerates the post-modern art-is-holier-than-anything-else dictum that so many in the art-world and some art lawyers love to profess. The author may be dead in MFA and art history programs, but it’s pretty much still alive in the world of law.

Instead, Easterbrook writes:

“We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect). We have asked whether the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).”

Read: “We think it’s best to stick to the separation of powers and apply the law, rather than play art critics like the 2nd Circuit and just, you know, make stuff up out of thin air.”

To conclude my rant, Easterbrook and the 7th Circuit find the use of the photo, in this instance, to be fair use. What I want you, keen reader, to keep in mind as you put head-to-pillow tonight, is why the 7th Circuit would go out so far out of its way to criticize the 2nd Circuit. Do you think, keen reader, that perhaps they are welcoming a Cariou v. Prince-like case in the 7th Circuit? Just sayin’.

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Sergio Muñoz Sarmiento

Sergio Muñoz Sarmiento is an artist, writer and arts lawyer interested in the relationship between art and law. He currently teaches contemporary art & law at Fordham Law School. You may follow his...

13 replies on “Appropriators Beware: The Author Is Not Quite Dead”

  1. I think this would be open and shut since “Work of the United States government, as defined by United States copyright law, is “a work prepared by an officer or employee” of the federal government “as part of that person’s official duties.”.[1] In general, under section 105 of the Copyright Act,[2] such works are not entitled to domestic copyright protection under U.S. law.

    In this instance the image of the mayor was prepared by the office for public use when displaying images of the mayor in govt buildings correct? If so it has no copyright protection and it doesn’t matter who took the image.

      1. If it walks like a government and quacks like a government it is a government. Besides, I doubt that the T-shirt is a substitute for the original photo in its intended market.

        1. I was responding to the claim that a copyright law which refers specifically to the federal government could somehow also apply to a city government. I’m pretty sure it doesn’t apply.

          There might be a fair use argument to be made, but that’s a different kettle of fish. And apparently this court doesn’t believe in the very expansive definition of fair use adopted (or invented) by the judge in the Cariou/Prince case.

          1. I think it does because the idea that a govt official can profit from their position, outside their regular govt pay scale, is misconduct or corruption. While I’m not certain 100% I’m 99% sure it applies to state and smaller local govt’s.

            That’s not to say they cannot have a 2nd job or endorse things, but the water can get very muddy very quickly if it looks they might be wielding influence in a way that would be an abuse of power.

          2. I don’t follow you at all. But probably the copyright lawyers understand the relevant law a lot better than either of us.

          3. I’ll try again. Federal employees are prohibited from owning intellectual property as a direct result of their federal employment. This makes a clear distinction – if you are found to be profiting from your office: selling govt goods (ie proprietary budgeting software) or other copy protected information it is illegal. For example – the president cannot sell his image when he is president, anyone is allowed to take and use the image provided it comes to you via the govt. He cannot pursue legal action, whereas you could if you found that your image was being used and sold without your express permission. If the image or IP comes from a third party through the govt it’s a different story.

            There is a relevant example, Shepard Fairy was sued by AP for the Obama image he used in HOPE painting. When he did this AP was never suing for the use of the image itself they were suing based on the claim that he personally profited from the sale of the image. The distinction is clear; the image was not taken by a govt photographer, and it was being used commercially (t-shirt sales, stickers etc.). If he had used an image provided by the soon-to-be presidents PR dept there would have been no recourse because a govt photographer forfeits the ability to copyright their work. Generally speaking appropriation for non commercial or artistic purposes is given a pass provided it is transformative. I don’t think they had to go that far since it’s more abstract line of thinking.

            If you read the link to the case you would know the image was pulled from a govt website. At the very least it’s fair to assume underground printing never intended to use a privately owned image and went so far as to use a .gov website instead of a google image search which could have pulled up any number of copy protected images.

            Now, the link that I initially provided clearly states that federal employees cannot copyright work produced as a result of their job, like copyrighting the image of your presidential headshot. I think it’s common sense to assume the same logic would hold true for a mayors headshot coming off a .gov website.

          4. Right, I remember the Fairey/HOPE case. But again, what goes for the federal government does not necessarily apply to a local government. It may or may not be common sense, but the law and common sense do not always align.

          5. Also, from reading the case, it appears that the photo was not taken by a government employee or someone under contract to the government. It was taken by a private photographer, and posted with his permission on the city’s website, but that doesn’t make it city government property, which can then be freely used by virtue of some association with a copyright law concerning the federal government.

          6. I never said it did, I just pointed out that the defendant in the lawsuit went to greater lengths to obtain what they believed to be a govt photo. Which would expel any reasonable doubt that they intended to steal or use ‘any photo’.

            That would blow a pretty big hole in any prosecutors case since the defendant is intending to do the right thing.

          7. Yes, I know about the Supremacy Clause. It does not say that laws binding on local officials and agencies. If you read it that way, you have misunderstood it.

            Ultimately, amateur interpretations of, and debates about, copyright law (or any law) are meaningless. The federal judge here knows a lot more about the relevant laws than you or I.

            (For what it’s worth, while I am not a lawyer, I am married to one, and I edit legal publications for a living.)

            Peace out…

  2. What does the 7th district court (the same panel of judges that today re-instituted Wisconsin voter ID laws) signalling their desire to re-try the Cariou case (which they can’t do) have to do with whether anybody had ever called you a liar?

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