The touchstone of fair use in areas like appropriation art and parody is whether the use was “transformative" of the original. Unfortunately, not a lot of artists really understand what courts mean when they talk about “transformative" uses. So, here’s a rough overview.
First, I want you to think back to your childhood, however distant or recent that might have been. Surely, you remember those toys called Transformers, yes? Cars and trucks and guns and trains and they all transformed into robots and back again? I want you to think very hard about that kind of transformation, because it is entirely not the kind that the courts are talking about.
In fair use, “transformative" has nothing to do with the physical form of a work. We are not talking about caterpillars and butterflies, here. Which is probably what causes most of the confusion for those who haven’t really read the cases involved; when you hear “transformative," you think Transformer. But, you’re wrong.
You see, copyright law already has a term for Transformer-type transformations. They’re called “derivative works," and they are not automatically a fair use. In fact, any copying of someone else’s work that is not a perfect and complete copy is a derivative work because it has changed the original. Derivative works are assumed to be infringing – it is only by proving that they are “transformative" that one can argue that it is a fair use.
I’m sure you’re wondering, by now, when I’ll finally get around to telling you what “transformative" actually means, if it isn’t Transformers. Let me draw back the curtain: “transformative" means that it engages with and responds to the message of the original work in a meaningful way. I get how complicated that is; I’m going to give you an example of something that was transformative and then one of something wasn't, and then I’ll set about breaking down the differences.
First, the transformative use. I’m actually going to use Jeff Koons for both examples, because he has such a great history of challenging this very question. So, his legal victory was in Blanch v. Koons, a suit arising from his Easyfun-Ethereal project in 2000. In one of his paintings for that series, Niagara, Koons juxtaposed images of women’s legs culled from magazine ads and his own photos against images of food and a scenic view of Niagara Falls. Unfortunately, the photographer responsible for one of the pairs of legs challenged Koons’s use of her work in his painting.
At trial, Koons testified that his work was attempting to force viewers to step beyond the ways in which popular media normally convey our various desires – sex, food, play, etc. – and to engage with those desires in new ways. To do that, Koons needed to take certain types of images – including the one contested – and put them into a new context in order to challenge their intended meaning.
The court found that Koons’s use was transformative, and that he did need to use images such as the one upon which the suit was based. While the court notes that it is not the specific photograph that Koons is attempting to critique, but rather the genre, it also accepts that Koons needed to use some example of that genre in order to convey his transformative measure. Therefore, his was a fair use.
Contrast that to Rogers v. Koons, perhaps the most famous of Jeff Koons’s legal encounters. Also called the “String of Puppies Case," this suit arose from Koons’s creation of a sculptural duplicate of a postcard image of a couple holding up a litter of puppies. Koons’s sculpture was an exact duplicate of the postcard, brought out into three dimensions.
At trial, Koons argued that his appropriation was a fair use because the work was part of a series intended to satirize mass culture and it’s banal nature. The postcard Koons copied was just one example of the cliched and overly sentimental cultural productions that Koons had intended to criticize through his work.
Unfortunately, the court here pointed out that the Copyright Act only allows fair use in cases where the new work comments on or criticizes the original – not on society at large. Thus, a parody can be a protected fair use but a social satire – such as Koons’s work – cannot. Here, then, Koons was found to be infringing and his fair use defense was denied.
What led to the different outcomes for the same artist doing almost the same type of art? Most likely, his ability to articulate how his appropriation engaged with and transformed the meaning of the original. The Easyfun-Ephemeral work was transformative because Koons intended to question, comment on, or criticize that work’s meaning in his own creation. String of Puppies, on the other hand, was not an attempt by Koons to relate to the original image but rather to question mass culture at large. This fine distinction divided his two cases between fair use and infringement.
To put it simply – and to return to our original topic – a “transformative" use is one that engages with and alters the meaning of the original work that it copies. To establish fair use, one must be able to articulate both why the appropriation was necessary and how the appropriated work’s meaning has been challenged, commented on, or otherwise transformed.
Remember: In fair use, “transformative" does not mean Transformers.
Fair use is a complicated topic, and the “transformative" question is only one element of such a defense. Appropriation artists and parodists should always consider how their work is using and dealing with that of others, and should not hesitate to contact an attorney practicing in the area with any questions.