Matthew Deleget, Information & Research, NYFA with special guest John Palattella, Research Assistant, NYFA Source

Have you ever heard the classic George Harrison song, “My Sweet Lord”? It goes something like: “I really want to see you / Really want to be with you / Hallelujah / Hare Krishna. . . .” In 1976, United States District Court Judge Richard Owen, arguing that Harrison had heard the song’s melody in someone else’s song long before having written his own, ruled that Harrison was guilty of copyright infringement. Although not deliberate on Harrison’s part, his song too closely paralleled the Chiffons’ “He’s So Fine,” a #1 hit in the US for five weeks during the summer of 1963.

The case raises an important question: How much can you draw on the work of others when you start your next project? In this issue’s installment, Dr. Art discusses the history and parameters of copyright, as well as its fair use in appropriation and parody.

Copyright Basics

American copyright law began over 200 years ago when the framers of the US Constitution saw the need in a fledgling democracy to provide an incentive for the creation of new work. Copyright law allows a creator of an original work that has been fixed in a tangible medium the exclusive right to reproduce and sell that work for a set period of time. Once copyright protection expires, a work enters the public domain, where it can be reproduced without permission. Traditionally speaking, the difference between an original work fixed in a tangible medium and the work’s underlying ideas has been the most widely misunderstood aspect of copyright. But there are easy ways to distinguish between the two. For instance, you can’t copyright an idea, such as the idea of the still life. You also can’t copyright a simple list of facts, such as a list of names and corresponding numbers you find in a telephone book. You can, however, copyright a photograph that depicts a still life, or a painting of a list of telephone numbers.

Copyright, in summary, is a limited-term monopoly on an original work. The government still allows for its fair use by the public, which over the past two centuries has devolved into the tangled web of legalese today referred to as intellectual property rights. This is the stuff that keeps creative individuals, lawyers, and judges up at night (more on that in a moment). At its core, copyright’s basic principle has remained the same since 1790—to balance the limited ownership of a work as a reward for creativity with the access to original work that all creativity and education demands. As we all know, every creative individual arrives at an original work by first standing on the shoulders of her or his predecessors, by borrowing and extending preexisting ideas.

Fair Use

Copyright prohibits an original work from being copied and distributed without the owner’s permission. It also prohibits derivative works from being produced without permission, including adaptations and translations.

Copyright law does, however, allow the public to engage with an original work for specific fair uses. Fair use protects the public’s access for purposes of criticism, comment, reporting, teaching, scholarship, or research. But, before you use a copyrighted work for your own purposes—artistic or otherwise—it’s important to consider the following fair use factors as excerpted straight from the current copyright statute:

In determining whether the use made of a work in any particular case is a fair use, factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational 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;
4. the effect of the use upon the potential market for or value of the copyrighted work.

These factors protect you when photocopying an article from a book for later personal use, or copying songs from a CD you own onto your MP3 player. Yet even with these examples in mind, determining fair use is not a straightforward analysis, especially when it comes to parody.

Parody as Fair Use

Parody depends on fair use since it is impossible to lampoon a work without duplicating or referencing part of it. For a parody to be funny, the target must be immediately recognizable. Although not specifically mentioned in the copyright statute, parody is protected by the four factors listed above. However, not all parodies have qualified for protection under the fair use doctrine. Historically, the courts have ruled both ways on this issue and have based their rulings primarily on how effectively the parody lampoons its target. The following two landmark cases involving artists are illuminating in this regard.

In 1994, the US Supreme Court defended the social value of parody in a case involving rap music. The group was 2 Live Crew led by rapper/producer Luther Campbell. 2 Live Crew’s 1991 album As Clean As They Want to Be, following closely on the heels of their As Nasty As They Want to Be release, included a song called “Pretty Woman.” The song relied heavily on the melody of Roy Orbison’s hit song, “Oh, Pretty Woman.” Although 2 Live Crew applied for and was subsequently denied permission by Orbison’s publishing company, Acuff-Rose Music, Inc., to parody the song, 2 Live Crew decided to release their version of the song anyway. The legal case that followed went all the way to the Supreme Court, which decided unanimously in favor of 2 Live Crew. The court determined the group not only made sufficient fun of the original, but made a critical statement about it by bringing a canonical white song into a black rap context. The court ruled 2 Live Crew’s parody was indeed in fair use.

In a second case, the ruling was different. This case involved the artist Jeff Koons and his work String of Puppies, and its appropriation of a 1980 photograph by Art Rogers of a rural American couple holding a litter of German shepherd puppies. Rogers was commissioned by the couple to photograph their portrait, after which he licensed the image to a graphics company, which produced 10,000 copies of a card. Koons saw the card and instructed his Italian woodcarving studio to replicate it in a sculptural edition of four. Koons sold three of the four sculptures for a total of $367,000 during his Banality Show in November 1988 at Sonnabend Gallery, New York. In the legal case that followed, Koons defended his work by arguing that his sculpture was a parody of society in general. The court, however, ruled in favor of Rogers, stating that a parody must target something specific, i.e., Rogers' photograph. Koons’ work, therefore, was a copyright infringement.

What’s New with Copyright

How has copyright law changed in the digital age? In 1998, Congress passed the Digital Millennium Copyright Act and the Sony Bono Copyright Term Extension Act. These two acts substantially changed the terms and length of copyright in the US.

Digital Millennium Copyright Act (DMCA)—The DMCA grants authority to the copyright holder to allow or deny access to a work. The holder therefore can completely cut off a work to anyone at any time, including for legitimate fair use purposes. In order to gain access to a work, a fair use user now has to agree to the copyright holder’s terms in the form of a binding contract. Think about this the next time you install new software on your computer. Just by cutting off the plastic wrapper and opening the software box, you are automatically bound by the software producer’s licensing agreement (even though you needed to open the box in the first place to see the contract). New digital rights management technology is also increasingly being used for copyright protection. This is basically a technological lock placed on electronic media, which is illegal to break even for fair use purposes. The DMCA places an unmitigated stranglehold on the public’s fair use access to work.

Sony Bono Copyright Term Extension Act (SBCTEA)—This extends the life of a copyright from the length of the creator’s life plus 50 years (in 1976) to life plus 70 years for individuals and 95 years for corporations. It also extends the term for existing copyrights by 20 more years. The SBCTEA is the 11th time in the last 40 years that Congress has extended the length of copyright, and it greatly curtails the amount of work entering the public domain each year. All told, copyright now extends longer than the average lifetime of a single person. New works will not enter the public domain for over two generations.

Adieu, Readers!

This issue marks my last column as Dr. Art. I want to thank you all for sharing in my ideas over the past five years, and I’d also like to extend a heartfelt welcome to the new Dr. Art—Melissa Potter, a working visual artist and Program Officer of NYFA Source—who will be taking over the prescription pad beginning with the spring issue of NYFA Quarterly, while I focus on a variety of other projects at NYFA.

(The preceding article is for informational purposes only and should not be understood as legal counsel. For further information, please contact your local chapter of Volunteer Lawyers for the Arts.)

Previous Ask Dr. Art articles are archived on NYFA’s website at www.nyfa.org/quarterly.

A regular column in NYFA Quarterly, Ask Dr. Art is made possible by the NYFA Source funding consortium. Major support for NYFA Source has been provided by The Ford Foundation and Cordelia Corporation. Additional support has been provided by Basil H. Alkazzi; Lily Auchincloss Foundation; The Cowles Charitable Trust; The Elizabeth Foundation for the Arts; The Robert and Helen Gould Foundation; Independence Community Foundation; The Liman Foundation; Albert A. List Foundation, Inc.; Virginia Manheimer; The Joan Mitchell Foundation, Inc.; New England Foundation for the Arts; a gift in honor of Eva J. Pape; Pew Fellowships in the Arts; The Pollock-Krasner Foundation, Inc.; The Judith Rothschild Foundation; The Marie Walsh Sharpe Art Foundation; The Andy Warhol Foundation for the Visual Arts, Inc.; and the Urban Institute.