Sometimes the line between the direct copying a work of art (copyright infringement) and creating an entirely new work of art (fair use) can be very thin. There is a murky gray zone where the two sometimes meet.
For example, take (or leave) the photographer-artist Richard Prince. In one of his most famous images, he simply re-photographed a Marlboro ad, cutting out the text and leaving just the cowboy on the galloping horse. It sold for over a million dollars. Then another copy sold for over three million dollars.
He was sued of course but, after an initial court defeat, he eventually won. The US Court of Appeals, Second Circuit (Cariou v. Prince, 2013) said the photographs (well, 25 of the 30 works in question) were “transformative” so, therefore, “fair use”.
Since Prince has made it his business to copy others I’m sure he wouldn’t mind me posting a photo of the image in question, “Untitled (Cowboy)”. Here it is, original ad on the left and Prince’s “re-appropriated” photograph on the right:
I’ll follow that up with an interesting three-minute video in which Sam Abell, the original Marlboro Man photographer, discusses what Prince has done:
Finally, how about my personal example of a “re-appropriated” work? Does it have a completely new meaning and value as a work of art? Is it transformative? Does it present a “new aesthetic”? Ultimately, then, is it copyright infringement or fair use?
Perhaps you could interpret it as a direct commentary on what Richard Prince has done to Sam Abell, eh?
Explanation: The above is a layered composition I derived from the following works, which you can see at the Denver Art Museum:
Roger Brown’s Surveying the Siberian Explosion (1985, oil on canvas) – all the exploded trees and the surveyor–who initially looked like a photographer to me
Carroll Dunham’s Shootist (2000, mixed media on linen) – man with pistol and balls on his nose–a powerful sexual violence commentary
Julian Opie’s Imagine You are Driving 3 (1997, vinyl stretched over an aluminum frame) – the disorienting highway scene
