Similarly, in 1966 Warhol was sued by photographer Patricia Caulfield for copyright infringement stemming from his use of one of her images of hibiscus flowers. Warhol increased the contrast of the images, replaced the detailed petals with simplified monochrome flowers, and his characteristic pop art color palette. After first exhibiting Flowers at the Leo Castelli Gallery in 1964, Warhol sold hundreds of prints of the image. Caulfield’s case also settled before trial; she was given $6,000 (around $25,000 today), two of the paintings (one for her lawyer), and a royalty on future reproductions of her photograph. After the settlement, Caufield expressed exasperation; she did not have “the time, money or energy to pursue the matter further.” As for Warhol, he resolved to use only on his own photographs after the settlement.
Both of these disputes took place before the 1978 implementation of the Copyright Act of 1976. This overhaul of copyright law shifted legal standards for copyright protection of the underlying work and explicitly addressed fair use, providing more clarity on its use. The act established the four-pronged test for fair use, which requires a court to consider 1) the nature of the original work, 2) the purpose and character of the new work, 3) the amount and substantiality of the work, and 4) the effect of the use on the market for the original work.
The act’s codification of the fair use doctrine attempted to streamline its previously inconsistent and, as evidenced by the sheer number of casesinvoking it, difficult application. Prior to the act, the lack of concrete guidelines for the common law doctrine meant that different courts applied different criteria. Additionally, before the act came into effect, federal copyright protection was limited to works that complied with onerous publication and notice guidelines. Many works fell short of these requirements and would be considered to have fallen into the public domain.
The arguments of these early appropriation artists (that their work transformed the appropriated photographs) are supported by the fact that both resulting pieces are strikingly different from the original works and clearly incorporate stylistic elements unique to Warhol and Rauschenberg. However, despite the merits of their cases, Warhol and Rauschenberg’s preference for settlement would remain the strategy of choice for many artists facing similar matters in later years. That is, until Prince was sued for reproducing images of rastafarians from Patrick Cariou’s 2000 book of photography “Yes Rasta,” using them to create a collage series he called “Canal Zone.” Prince, after an initial loss, eventually prevailed on appeal. The court held that his “composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.”
In court testimony, Prince himself indicated that his work did not “have a message” and that he did not intend to create works with a new meaning or message. Although this would seem to undermine a fair use argument premised on transformation, the court held that “what is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”
It is unclear what effect a judgment like Cariou would have had on art from the Warhol era, had it been decided then. But it might not have been decided in the same way, especially because the fair use doctrine had not been codified at the time. Regardless of the merits of Warhol and Rauschenberg’s cases—particularly in view of Prince’s success in the Cariou case—there is no denying that subsequent changes in the legal and cultural landscape have buoyed the possibility of success for artists who today rely on fair use.
Prince’s approach of testing the evolving fair use doctrine in court, often brazenly, represents a bold departure from artists who faced similar hurdles in the past. The Cariou suit broadens the applicability of fair use to situations where even the artist creating the work does not intend to make a work transformative, but succeeds in doing so anyway. It remains to be seen whether Prince’s most recent legal dispute will end in his favor (early signs point to trouble), but one thing is for sure: Fair use and the legal landscape in which it is invoked will continue to develop in concert with the progression of contemporary art.