When is it Appropriation OR a Copyright Breech?

Revisiting a blog post from 2013

· Musings

Court Rules in Artist’s Favor

In a closely watched copyright case with broad implications for the contemporary-art world, the United States Court of Appeals for the Second Circuit on Thursday decided largely in favor of the artist Richard Prince, who was found by a federal court in 2011 to have illegally used photographs from a book about Rastafarians to create a series of collages and paintings.

The original decision, by Judge Deborah A. Batts, sided with Patrick Cariou, whose 2000 book, “Yes Rasta,” featured portraits he took in Jamaica. Mr. Prince used dozens of the pictures as the basis for a series of dystopian works called “Canal Zone,” which were exhibited at the Gagosian Gallery in 2008 and generated more than $10 million in sales.
Mr. Prince argued that his appropriation of the photographs should be allowed under the fair-use exceptions to federal copyright protections, which permit limited borrowing of protected material for purposes like commentary, criticism, news reporting and scholarship. But Judge Batts wrote that for fair use to apply, a new work of art must be transformative — that it must “in some way comment on, relate to the historical context of, or critically refer back to the original work.”

In the end we are left wondering.....
“How do you decide whether something is transformative or just not quite transformative enough?”

From New York Times