The New Copyright Small Claims Bill: A Ray of Hope for Independent Photographers

By Adelaide Dunn*

screen-shot-2016-10-18-at-4-11-35-amThe U.S. Copyright Act’s single regulatory system fails to accommodate the diversity of production methods, output speeds and business models of today’s creative entrepreneurs. In the eyes of independent and freelance artists, one of copyright’s greatest flaws is its requirement that an infringement claim be litigated in a federal court – an endeavor accruing costs that often far surpass the value of the work at issue. Since 2006, the United States Copyright Office has been questioning creators, holding panel discussions and conducting research pertaining to a new model for resolving small claims. The Copyright Alternative in Small-Claims Enforcement Act of 2016 (“CASE Bill”), introduced in July this year, would create a new Copyright Small Claims Board (“Board”) facilitating the resolution of claims valued below $30,000 in actual damages. The aim is to overcome two of the most common criticisms of copyright law: that its systems favor large corporations over independent and freelance creators, and that it is an abstract set of rules that the general public chooses to ignore. The CASE Bill sketches out an ambitious yet promising new system that has the potential to facilitate settlements, dissuade infringing activity (particularly online), and ensure remedies for copyright infringement are available to low-income creators.

The proposed Board is a streamlined, inexpensive, Internet-based dispute resolution system to be administered by the Copyright Office. Three Officers are to act as adjudicators – two having had significant experience representing or presiding over a diversity of copyright interests, and the third having expertise in alternative dispute resolution. Decisions are primarily made on the papers filed with the administration. Hearings or discussions towards settlement can take place over teleconferencing facilities where needed. The system is designed without the need for attorneys, such that rules of procedure are relaxed, discovery is minimal, and costs are only awarded for cases brought in bad faith. All copyright defenses, including fair use, are available. Because of constitutional limitations, participation with the Board is voluntary, and its decisions do not create precedent.

Creative associations such as The Professional Photographers of America (“PPA”) and the Authors’ Guild are seeing their long-term lobbying efforts come to fruition. The type of creator in need of the new system is what the PPA describes as “low value, high volume” – individuals such as designers, illustrators and photographers – who spend time creating many copyrightable works that are individually of low commercial value. The business of photographers is profoundly affected by online copyright infringement, such that photographers are the prime candidates for the new system (and the example used in this article).

The copyright woes of the independent photographer

Photographers differ from “low volume, high value creators” – such as film directors – who channel their creative efforts into one high value work at a time. A photographer may take hundreds of copyrightable photographs in a day, while also conducting the day-to-day administrative tasks of running a small business. It is easy – and habitual – for Internet users to share photographs without permission, often with watermarks and rights information scrubbed from images or metadata. Exacerbating the issue is the common belief that works of creative expression that appear online – particularly images – are free for the taking. According to a survey by the PPA, 70% of professional photographers have had their work infringed over the past three years.

It is unsurprising that photographers have long protested our “one size fits all” copyright system. Although photographers and filmmakers both depend financially on the licensing of copyright in their works, filmmakers are often better placed to pursue infringement claims. With a stable, financed project overseen by numerous stakeholders, a filmmaker and her studio receive comprehensive legal advice. Attorneys maintain the film’s “IP-hygiene”, including ensuring that copyright in the film (as well as in its posters, soundtrack and other components) is registered with the Copyright Office. Though a creator attains copyright automatically on the creation of the work, the Copyright Act requires that a plaintiff possess a registration certificate before bringing suit for infringement. Registering works in a timely way means that the plaintiff can recover attorney fees from the defendant (17 U.S.C. § 505). It also enables the plaintiff to recover statutory damages, which do not require proof of actual damage, and can be significant (up to $150,000 if the infringing activity is found to be willful) (§ 504(c)).

Softer registration requirements

The registration requirement has been criticized for benefiting the deep-pocketed and well advised over the low-income creators that statutory damages and attorney fees are designed to benefit (Ciolli, 1007). A photographer often lacks the time and money to register his works, given that the Copyright Office’s fees average between $35 – $55 per work, and differ for “published” and “unpublished” works – a distinction many photographers see as burdensome and outdated due to the digital sharing ecosystem. The new small claims system bypasses these difficulties and caters to the reality that most creators do not learn of the legal benefits of a registration certificate until a dispute has arisen that necessitates one. To file a claim, a complainant needs only to have submitted an application for a registration, and can still recover statutory damages if successful. The Board can also award actual damages and profits, but because these are complex calculations in copyright disputes, the combination of statutory damages and soft registration rules will be a boon to photographers.

The Copyright Office will need to create a user-friendly digital platform that allows for e-registrations to be made contemporaneously with the filing of claims. Because many photographers will participate pro se, the platform will be critical in communicating instructions and providing downloadable forms and templates to aid the drafting of briefs. But such a system is probably outside of the Copyright Office’s current IT capacities. Register Maria Pallante has testified to the U.S. House of Representatives that the Copyright Office’s resources are inadequate to support the current digital economy, and that allowing the Copyright Office to establish itself as an autonomous body (independent of the Library of Congress) will give it the authority to make IT investments in furtherance of its own modernization goals (Pallante, 7). Whether these recommendations will eventuate remains to be seen.

Lower costs and streamlined proceedings

It is neither time nor cost effective for a photographer to pursue an infringement claim in a federal court. The PPA has surveyed its members and found that – however numerous – most infringements of single photographs cost below $3,000 (PPA). At the same time, the American Intellectual Property Law Association’s 2015 Report of the Economic Survey indicates that the median cost for a claimant to litigate a copyright infringement suit with less than $1 million at stake through appeal is $250,000 (AIPLA). Even mediating that dispute would cost a median of $40,000 (Ibid.). In addition, according to the 2015 Federal Judicial Caseload Statistics, civil trials take approximately twenty-five months to conclude (Administrative Office of the US Courts). The length is due in part to delaying tactics aimed at draining the other side’s resources and inducing an unequal settlement, such as delaying discovery and filing unnecessary pre-trial motions. Wealthy defendants have strong incentives to behave this way towards low-income adversaries, to ensure that lawyers working pro bono or on contingency bases cannot bear the burden of the full trial.

Indeed, while most content creators are private, most content users – and infringers – are corporate (Wild). The photographer Alex Wild, who left the professional photography business due to frustrations with copyright, writes that his signature extreme close-up insect photographs have been used without permission on venues as diverse as billboards, newspaper articles, video game graphics, company logos, board games, pest-control trucks and iPhone cases (Wild). The corporate disregard for copyright is doubly frustrating to photographers who rely on licenses issued to corporations in those exact sectors.

Key procedures of the Board are aimed at leveling the playing field. To prevent unnecessary delays, rules of civil procedure are simplified, and procedural and discovery-related counterclaims are not accommodated for. Discovery is limited to the production of relevant information, documents and written interrogatories, in order to allow the parties to obtain material facts, establish proof of actual damages, and rebut evidence. The Board also substitutes a formal appeal process with narrow administrative review procedures. This would prevent losing parties with substantial resources from re-litigating a dispute in a federal court.

Potential for collaborative approaches to dispute resolution

Perhaps the Board’s most promising function is to facilitate settlements. The abbreviated and inexpensive trial would give the parties an idea of the merits of their cases, leading to productive discussions, overseen by the Officers. The Board’s utilization of mediation techniques – aided by the Officer with expertise in alternative dispute resolution – could lead to a holistic approach to problem solving. This would give artists an outlet for airing their grievances while also bypassing the power struggles of adversarial trials. Resolutions could lead to innovative and therapeutic business arrangements, such as ongoing royalty fees, partnerships and other agreements.

Criticisms

The CASE Bill is not without its detractors. The foremost worry is that the ease of filing claims will open the Board to abuse by copyright trolls. However, the CASE Bill provides that a Copyright Claims Attorney review each claim to ensure that it complies with copyright law (including, presumably, that it establishes a prima facie case of copyright infringement), before the adversary can be served. In aid of pro se claimants, there are then two opportunities to improve a deficient claim. Though the parties must bear their own costs, the Board may award attorney fees and costs up to $5000 to a party adversely affected by a harassing or improper claim, creating a monetary disincentive against meritless or frivolous claims.

A related worry is that large corporations hiring attorneys will have a significant advantage over pro se parties in terms of the quality of pleadings and submissions. Indeed, organizations such as New Media Rights, California Lawyers for the Arts, and Volunteer Lawyers for the Arts will presumably be vital in helping artists file claims. Interestingly, the CASE Bill also permits qualified law students to represent complainants. Law schools might take this opportunity to set up clinics and internship programs, benefiting both the students taking part and parties in need of representation.

Critics also question whether the Officers should be empowered to make fair use determinations, which are notoriously uncertain and complex. However, as Register Pallante has noted, fair use is a critical safeguard of the Copyright Act (Pallante, 29), which is particularly true with regard to the creation of contemporary art. The availability of the defense will also give respondents an incentive to engage with the Board, and ensure that copyright law continues to align with legitimate consumer expectations. The Officers’ expertise in copyright law will help with the streamlining of fair use decisions. They may develop simpler proxies with which to apply fair use concepts such as transformative use, given that small claims do not have the same cultural and economic ramifications as federal fair use cases (such as the Second Circuit’s recent holding that Google Books amounts to fair use: Authors Guild, Inc. v. Google, Inc.).

Further, the Board does not have a mechanism with which to identify anonymous online infringers. However, its issuance of subpoenas might give further burdensome enforcement duties to Internet Service Providers. Notably, the Copyright Royalty Board has the authority to issue subpoenas but has never exercised this (Copyright Office, 124). The Board also cannot grant injunctions. Though some argue that this might render its determinations toothless, a contrary opinion is that copyright owners can gain unfair leverage through threats of injunctions, and awarding licensing fees in the alternative might lead owners and users to bargain more effectively (Pamela Samuelson et al). Indeed, the Supreme Court in Campbell v. Acuff-Rose noted that a system relying on monetary relief rather than restrictions on commercial behavior might better serve the purposes of copyright and facilitate the lawful use of copyright protected works (at 578 n. 10). The Board can, however, require the respondent to cease the infringing conduct, which appears to be a kind of soft injunction. Because of the voluntary nature of the proceedings, this remedy might function like a contractual promise.

Conclusion

The time is ripe for a new dispute resolution system catering to more diverse range of creators. Currently, the CASE Bill has been referred to the Subcommittee on Courts, Intellectual Property, and the Internet, and has not yet passed the House. Whether it will pass before the next Congressional session begins in January is unclear. But as it incorporates years of research and comments from the Copyright Office, scholars and creative associations, it or a similar law’s incorporation into the Copyright Act seems likely. Indeed, it would align the U.S. with other jurisdictions instigating similar systems, such as the United Kingdom, which in 2012 began to allow informal hearings in its Intellectual Property Enterprise Court regarding claims for infringement of copyright, trademark or unregistered design rights (valued below £10,000). For the U.S., the new system has potential to transform copyright law into an everyday business reality, to give a voice to artists who are currently silenced by the federal system, and to lead to more collaborative and innovative solutions to copyright infringement.

 

Sources:

  • Copyright Alternative in Small-Claims Enforcement Act of 2016, H.R. 5757, 114th Cong. (2016).
  • Copyright Act (17 U.S.C.).
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 n. 10 (1994).
  • Jeffrey Bils, David’s Sling: How to Give Copyright Owners a Practical Way to Pursue Small Claims, 62 U.C.L.A. L. Rev. 464 (2015).
  • Anthony Ciolli, Lowering the Stakes: Toward a Model of Effective Copyright Dispute Resolution 110 W. Va. L. Rev. 1000 (2007).
  • Her Majesty’s Courts & Tribunal Services (United Kingdom), Guide to the Intellectual Property Enterprise Court and Small Claims Track (July, 2014).
  • Virginia Knapp Dorell, Picturing a Remedy for Small Claims of Copyright Infringement, 65 Admin. L. Rev. 449 (2013).
  • Jessica Litman, Real Copyright Reform, 96 Iowa L. Rev. 1 (2010).
  • David Nimmer, A Modest Proposal to Streamline Fair Use Determinations, 24 Cardozo Arts & Ent. L. J. 11 (2006).
  • Register Maria Pallante, The Register’s Perspective on Copyright Review, Statement Before the Committee on the Judiciary, House of Representatives (April 29, 2015).
  • Joel Reidenberg, The Rule of Intellectual Property Law in the Internet Economy, 44 Hous. L. Rev. 1073 (2008).
  • Pamela Samuelson et al., The Copyright Principles Project: Directions for Reform, 25 Berkeley Tech. L. J. 1175 (2010).
  • United States Copyright Office, Copyright Small Claims – A Report of the Register of Copyrights (September 2013).

 

*About the Author: Adelaide Dunn recently graduated with a Master of Laws in Competition, Innovation and Information Law from the New York University School of Law. Before that, she completed a Bachelor of Arts in Art History and a Bachelor of Laws with Honors from The University of Auckland in New Zealand. Adelaide is particularly interested in the intersections of copyright, moral rights and the visual arts. She is currently doing intellectual property, entertainment and commercial law work as a law clerk for a solo practitioner in New York City. Adelaide can be reached at adelaide1dunn@gmail.com.

Realities of Fan Fiction: Paramout To Boldly Drop Lawsuit

By David Honig, Esq.*

Star_Trek_TOS_logo_(1)

In 1966 the world was introduced to the crew of the USS Enterprise NCC-1701! On September 8, 2016, 50 years will have passed since we joined that intrepid crew on its five year mission. Over the course of
a half century
Star Trek has amassed a following unlike any other. The original series, which only made it to the air because of Lucille Ball, lasted only three seasons before it was canceled. Gene Roddenberry’s tale of a future where humanity put its petty differences aside to unite and explore the stars did not end, however, when the last episode aired on June 3, 1969.

tumblr_o2awj8Rh0Z1rwjpnyo1_500After being canceled Star Trek spawned a franchise that consists of an animated television series, major motion pictures, comic books, novels, numerous spin-off shows and a Las Vegas attraction. But most importantly, Star Trek took firm root in the hearts of its fans. As a testament to their devotion, fans have learned Star Trek’s alien language Klingon, going as far as translating Hamlet, and a few other works, into their beloved alien tongue.

Like all good works of fiction, Star Trek developed a life of its own and inspired a parade of  unauthorized fan fiction. While a phenomenon like Star Trek lives and dies with the fans, it  exists as property owned not by the fans but by a major corporation. As such, Paramount and CBS have a vested interest in protecting the rights associated with their copyrights under 17 U.S.C. 106. Specifically, the copyright holder has exclusive rights to reproduce, create derivative works, distribute copies, and perform and display the work publicly.

Fan fiction regularly infringes a copyright because copyright often covers more than just the work itself. Instead, copyright has been extended to cover characters and settings as well as other literary elements, see Walt Disney Productions v. Air Pirates, 581 F.2d 751, 754-5 (2d Cir. 1978).

Fan fiction violates the exclusive rights of a copyright holder in two ways, expressly or through derivative works. A piece of fan fiction that incorporates a character or setting from the original work infringes – since, as just discussed, the character is subject to copyright protection and using the character violates the exclusive right to reproduce. Similarly, fan fiction violates the exclusive right to create derivative works even as  the fan-author creates her own story, because of familiar settings or characters derived from the original work. It is also worth noting that selling or distributing fan fiction does not change the fact that it infringes the original copyright. Commercializing a work, or more precisely the effect on the market for the original copyright, only comes in when determining whether the fair use exception applies not whether something infringes.

When deciding to prosecute copyright infringement the holder is faced with a Kobayashi Maru scenario – in the Star Trek universe, the Kobayashi Maru refers to a training exercise designed to place starfleet cadets in a no-win scenario. The copyright holder must decide whether it should allow the copyright to be infringed or enforce its rights and risk the ire of fans. The amount of money involved in fan fiction infringement is usually nominal compared to the risk of alienating fans. Additionally, because of the  uncertainty of fair use protection under 17 U.S.C. 107, fan fiction is often left alone even when the potential infringer is making money. This is a simple cost benefit analysis. However, there are instances where the holder does assert its copyright and recently some Star Trek fan fiction has fallen into that category.

Anyone who has ever been to a comic convention knows that there are people dressed up as starfleet officers, members of the United Federation of Planets or other Star Trek Characters. These fans are often wearing uniforms that they made themselves which include elements that are subject to copyright protection – such as the starfleet insignia. For various reasons Paramount and CBS will not go after these fans, the damages are de minimis

In addition to wearing costumes, many of these fans will also create their own movies, comics or other form of art – even the Internal Revenue Service is not above creating such a video. These videos are usually viewed as harmless since they have no impact on the market for the genuine article and if anything they endear fans to the source even more by allowing them to continue to engage in ways that traditional content does not allow. There is a limit, however, to what the Star Trek copyright holders will accept before they begin enforcing their rights. It seems that a fan project that raised over a million dollars and was set to be released the same year as Paramount’s next installment in the Star Trek motion picture franchise was too much.

Star Trek: Axanar, a fan film set before the original 1966 television series, raised over a million dollars on Indiegogo and Kickstarter. The film, which follows a successful short that raised over $100,000 on Kickstarter in 2014, raised its funds with some encouragement from Star Trek alum George Takei. With a mounting economic incentive, on December 29, 2015 Paramount and CBS filed a lawsuit against the producer of the film, Axanar Productions (“Axanar”), alleging copyright infringement.

george_takei_sulu_star_trek

George Takei as Sulu on the set of Star Trek

Among other aspects of Star Trek such as history and characters, the complaint claimed a copyright over languages. What might have seemed to be one more violation to the copyright holder and its attorneys ended up developing a life of its own.

First Axanar, responded by filing a motion to dismiss claiming that Klingon, a language invented for Star Trek, could not be protected by copyright law under Baker v. Seldon, 101 U.S. 99 (1879), because it is an idea or system. In response, Paramount claimed that the Klingon language isn’t useful, wholly fictitious and “there are no Klingons with whom to communicate.” After Paramount responded to Axanar’s motion the Language Creation Society submitted an amicus brief in support of Axanar.

The brief begins with a curious footnote quoting Marc Okrand, author of The Klingon Dictionary and creator of the language, claiming  Okrand “has asserted that the Klingon language, tlhlngan Hol, was received by him from a captured Klingon named Maltz.” The brief thus concludes that Plaintiffs cannot claim otherwise in this litigation, citing to Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992), to support its position. The Language Creation Society does not pull any punches stating, “Feeling ownership and having ownership are not the same thing.”

The Language Creation Society’s brief is quite an enjoyable read. The brief quotes Star Trek: The Next Generation, recognizes there is a child who was raised as a native speaker of Klingon and intersperses Klingon phrases written in the Klingon alphabet throughout. What might appear as gimmicks actually make the Language Creation Society’s point stronger – Klingon is a real language spoken by real people so much so that it can be used coherently in a brief amicus curaie. If the point of filing this brief was to argue that Klingon has taken on a life of its own as a communication system then there truly is no more powerful tool to prove this postulate than by showing Klingon can indeed act as a communication system instead of just reporting on its wide use.

Alas, the issue will not be adjudicated, at least not in this case. On Friday May 20, 2016 J.J. Abrams, the director of the first two Star Trek reboot films, announced that the lawsuit against Axanar would be dropped. The announcement was made during a fan event to promote the third installment of the rebooted Star Trek franchise, which Abrams serves as a producer, Star Trek Beyond. Unfortunately, this voyage is not yet over.

Abrams merely announced that Paramount WOULD drop the lawsuit not that the lawsuit WAS dropped. In fact, four days after the announcement Axanar an answered amended complaint and filed a counterclaim to ensure it met court ordered filing deadlines. Additionally, CBS and Paramount are working on fan film guidelines and if Star Trek: Axanar, or some other fan film, does not follow those guideline then the Star Trek copyrights will most likely be enforced again. Clearly there is still work to be done before Axanar, its fans, and producers and fans of other Star Trek fan fiction can proclaim Qapla’.

About the Author: David Honig is a post graduate fellows at the Center for Art Law. He is a member of the Brooklyn Law School class of 2015. While attending law school he focused his studies on intellectual property and was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is admitted to New York and New Jersey state bars. In the Fall of 2016 he will be pursuing an LL.M. in taxation from NYU Law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advise. Instead, readers should seek an attorney.

The Statute of Limitations Invoked to Dismiss Copyright Claims (Source: NYSBA EASL Blog)

Joel L. Hecker, counsel for Gideon Lewin, in the ongoing case of Gideon Lewin v. The Richard Avedon Foundation (2015) offers some comments on the the case that invoked statute of limitations in a copyright claim
Following, is an excerpt from the Hecker’s article:
“On June 26, 2015, a decision of interest concerning the application of the statute of limitations and work made for hire doctrine in connection with copyright litigation was issued in the Southern District of New York. The case is Gideon Lewin vs. The Richard Avedon Foundation, docket No. 11-cv-8767 (KMW) (FM). The court dismissed the The Richard Avedon Foundation’s (the Foundation) affirmative claims that photographs created by Lewin while he was acting as studio manager for Richard Avedon between 1965 and 1980 were works made for hire, since it waited too long to raise the defense. However, the work made for hire argument, ruled the court, is still available as an affirmative defense to Lewin’s suit for declaratory judgment that he owns such copyrights.”

Full text available here.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.

Photographs and Richard Prince: The Gifts that Keep on Giving

By Irina Tarsis, Esq.

In truth… in art, there are few, if any, things , which in an abstract sense, are strictly new and original through out.” Emerson v. Davies (CCD Mass 1845). J. Story

Remember Cariou v. Prince?

Cariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013) rev’ing 784 F.Supp.2d 337 (S.D.N.Y. Mar. 18, 2011) offers many teachable moments. Starting with the harsh decision by Judge Deborah Batts of Southern District of New York, which ordered the infringing works to be handed over to the Plaintiff for destruction, and ended with the tweet Richard Prince posted when he received twenty-five of his thirty paintings following the Second Circuit Court of Appeals partial reversal of J. Batt’s decision, finding that only five of the works Prince made were not ‘transformative’ as a matter of law. When the twenty-five works were ultimately returned to Prince, he observed that after half a decade of not seeing them he was of the opinion that he should have been sued for “making shitty paintings”.

Screen shot 2014-02-23 at 11.45.26 PM

Copyright in a Nutshell

U.S. 1976 Copyright Law identifies art and photographs as copyright protected works and lists preparation of derivative works as an exclusive right of the copyright owner. 17 U.S. 101, 106. The fair use defense limits the exclusive rights of copyright holders in certain circumstances when the work is used for valid purposes such as but not limited to criticism, comment, teaching or research. There is a famous four-factor test to decide whether “the use made of a work in any particular case is a fair use,” 17 U.S. 107. Unfortunately, there is no way to predict how judges will apply and weigh the four factors due to the high level of discretion afforded to the judges. A couple examples of this occurred recently when the Cariou appeal was pending and California courts ruled in two fair use cases categorically differently – both citing Cariou but one using J. Batts’ decision and the other using the 2nd Circuit decision (see Morris v. Guetta 2013 WL 440127 (Feb. 4, 2013) and Seltzer v. Green Day, 725 F.3d 1170 (C.A. 9th Cir. 2013).

What’s next?

On 16 December 2013, nine organizations and individuals arguing for the rights of photographers to benefit from the derivative use of their copyright protected works submitted an amicus brief in support of Patrick Cariou in his case against Richard Prince for the appropriation of the images from “Yes, Rasta” book for creation of the “Canal Zone” art works. (For background on Cariou v. Prince, read Appropriate Standard in Appropriation Art). Now, the New York Times’ Patricia Cohen reports that photographers are considering turning to Congress for assistance in protecting their works. She quotes Victor Perlman, general counsel for the American Society of Media Photographers, as saying “The courts have taken an approach to fair use that we do not believe was originally intended… A lot of what’s going to have to happen in fair use is going to have to happen on Capitol Hill.”

While it is hard to imagine that this Congress is capable of assisting anybody, one possible avenue to run interference is to modify the Copyright Act to include compulsory licensing for artists who incorporate copyright protected works of others into their work. The idea of having such a licensing scheme is not new; it was raised at least as early as 2002 by co-author of the Art Law treatise, Judith Bresler, Esq., in an article entitled “Begged, Borrowed or Stolen: Whose Art is It, Anyway-An Alternative Solution of Fine Art Licensing.” J. Copyright Soc’y USA 50 (2002): 15.

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Tweet attributed to Richard Prince.

Richard Prince, whose appropriation of Cariou’s works rekindled the fair use debate, responded to the announcement about photographers appealing to Congress by posting two black and white images on his Twitter account. Entitled “Untitled (protest) Thanks to the National Press Association & The Professional Photographers of America, the pictures include the 2012 Shia Muslims protest condemning killings in north-western Pakistan and a pornographic image of a woman scantily-dressed grasping at her breast and throwing her head back in protest or ecstasy.

AFP image of protests over killings in Pakistan (2012).

AFP image of protests over killings in Pakistan (2012).

The origin of the second image is not easily ascertained; while the credit line for the Pakistan protests indicates that it belongs to Agence France-Press.

Sources: The New York TimesCariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013); Amicus Brief, Cariou v. Prince, 08 CIV 11327 (DAB) (Dec. 16, 2013).

 

About the Author: Irina Tarsis, Esq. is the Founder of Center for Art Law; in addition to provenance research and teaching, she focuses her practice on business and art law.  She may be reached at itsartlaw@gmail.com

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.