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Copyright Infringement as an Intentional Tort

Yesterday’s NYTimes “but is it art?” account of the photography of Richard Prince and his source Jim Krantz provides a terrific opportunity to think about some of the core propositions of copyright law and some related propositions of trademark law.  Prince is a famous appropriation artist.  Among other things, he re-photographs advertising images — including those shot by Jim Krantz — and presents them as his own.  The Times, following Krantz himself, doesn’t pursue the liability angle; at most, Krantz wants credit.  The issue is both simpler and trickier than it appears.  More below the jump.Every year in my Copyright Law class I use the giant, amazingly detailed photographs of Clifford Ross to frame a conversation about “originality” and “authorship.”  Photography is a particularly challenging and engaging domain for that conversation because of our everyday intuitions about what photography “is” and what photographs represent.  Thanks to the Times, now I have samples to extend that conversation beyond whether Clifford Ross should be able to copyright his photos to whether Jim Krantz should have an infringement claim against Richard Prince (were he to own copyrights in his images, which he may not).  Prince, like Ross, uses photographic techniques to produce “art” that consists of painstaking, as-accurate-as-possible reconstructions of the observed world.  The natural world, in Clifford Ross’s case; the cultural world, in Prince’s.  One might think that a painstaking reconstruction of the observed world is not “original” in some sense, and doesn’t deserve a copyright; one might likewise think that such a painstaking reproduction is by definition so similar to the original (using that work in a priority sense, not a creative one) that liability for infringement should be automatic.  From a simple doctrinal perspective, one answer is, I think, relatively clear:  Ross gets copyrights in his photographs, and it’s difficult to see Prince winning an infringement case if one were ever brought.

The interesting questions here are whether it should matter on either count — the originality of a photograph; the identity of a copy — that anyone calls Ross’s work or Prince’s work “art.”  Copyright doctrine vaguely supposes that these questions should be answered from some “objective,” third-party point of view.  Copyright lawyers and scholars ( contributor Fred Yen) and occasionally even judges (Judge Oakes in Brandir Int’l v. Cascade Pacific) know better; they know that different points of view are possible, that the difference matters, and that one has to choose.  

Suppose Prince calls it art, as I suspect he does.  Hypothetically, the claim is:  “I am making art; I am not a pirate, or a plagiarist, and therefore have not harmed anyone.”  When the “artist” making this claim modifies or “transforms” the original work, the claim sometimes has traction as a matter of fair use.  But so-called verbatim reproduction loses the advantage that fair use doctrine sometimes gives “transformative” works.  It has to rely either on the judgment of some community — the art world, for example, declares it to be “art” and therefore it might be so, or the mass of consumers declares that the use is “private,” and therefore not commercially injurious — or on the claim of the “artist” alone.  Note in both cases that there is no clear line between the argument that the accused produced “art” or something “private,” on the one hand, and the argument that the accused’s actions did not harm the plaintiff, on the other.

It is axiomatic in copyright law that liability for infringement attaches as a matter of so-called “strict liability.”  A copyright plaintiff need not prove that the defendant “intended to infringe,” merely that the defendant invaded one of the exclusive rights of the copyright owner described in Section 106 of the Copyright Act, including the rights to reproduce the copyrighted work, to distribute copies of the work, and to prepare “derivative” versions of the work.

It is also axiomatic that no liability attaches unless the defendant actually “copied” the plaintiff’s work, that is, unless the defendant’s work resulted from some electronic or mechanical process linked ultimately to a copy of the plaintiff’s work, or the defendant had “access” to a copy of the plaintiff’s work and produced something that is “substantially similar” to that work.  (In the latter case, the plaintiff must still prove substantial similarity — again — to establish liability.)  As Judge Hand wrote, in a somewhat different context, “a plagiarist is not himself pro tanto an ‘author’; but if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an ‘author,‘ and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.”  [Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.1936).]  Intent, in other words, matters to the infringement question, notwithstanding the axiom that no “intent to infringe” need be proved.  The defendant must have “intended to copy.”  (For present purposes, I’ll set aside electronic reproduction in computer systems and networks.)

If the artist defendant acknowledges an intent to copy (as Prince obviously does) but denies an intent to infringe (a denial that I’ll impute to Prince), is he nonetheless liable for infringement?  If the art world agrees with him, as it mostly seems to (the Times piece is occasioned by a retrospective of his work at the New York Guggenheim), should that tip the balance in his favor?

Copyright is regarded as no good at answering questions like these, though I’ve tried to argue that it has more tools than it appears to.  Often, copyright prefers to focus on the other half of the intutive premise:  If the defendant’s work is “art,” then by definition it can’t injure the legitimate commercial interests of the copyright owner.  (The logic here gets reversed sometimes in a way that demonstrates the underlying circularity of the much of the law:  If the defendant’s work doesn’t injure the commercial interests of the copyright owner, then it’s art.)  Here, one might suppose that Jim Krantz was fully and fairly paid by his client Marlboro for his work on the ad campaign; Krantz has no ongoing commercial interest in the photograph; and Marlboro isn’t threatened by Prince or his collectors, or by the Guggenheim.  That’s true enough for photographs where the original photographer has sold the rights downstream, but even Krantz owns the copyrights to a lot of his work.  Is there a sense in which Prince is usurping some of Krantz’s market? 

As always, the answer depends on how we define the market.  Is the market defined by the work as such — by the particular image, divorced from any context?  I usually think that “image as advertising” is quite distinct from “image on gallery wall,” but what if Krantz exhibited his photos in a gallery?  What if a gallery or museum acquired an original Krantz, and an original Prince re-photographed image of the same work, and displayed them side by side?  Is there an injury, and if so, to whom?

I have no answers, only more questions.  Consumers, of course, might be injured in a trademark “confusion” sense, especially if the provenance of the side-by-side photographs is not clarified.  If both photographs are out there in the market for photographs (the commercial market, or the art market, or both), a similar possibility of confusion persists.  Krantz himself might be injured for related reputational reasons, but he might also suffer a non-reputation related “moral rights” injury, and he might suffer that injury even if the authorship of each distinct work (assuming that these are distinct works) is recited.  That seems to be his actual complaint, according to the Times:  other things being equal, he’d like to be acknowledged as the source of some of Prince’s work.

Do appropriation artists owe their sources a legal or ethical duty of acknowledgement?  The traditional trademark stance asks whether consumers care.  In the cultural world, sometimes they do, sometimes they don’t.  Someone who buys or views a Prince likely cares a lot that it’s a Prince; someone who looks at Marlboro ad likely doesn’t care at all that it’s a Krantz.  There’s a cart-before-the-horse problem embedded in the issue.  Consumer attention to authorship doesn’t only depend on the individual author and the work; the appropriation context suggests that what matters is the distinction between author #1 and author #2.  Before Prince was Prince, Krantz was Krantz.  Appropriation elevates the one and diminishes the latter.  Perhaps the answer is that the greater the gap, the less likely it is that a duty is owed.  But how would one measure that gap?  And diminishing Krantz by appropriating his work implicates a moral rights injury — which both copyright law and trademark law are reluctant to recognize.

There is lots of fun to be had in Copyright Law this Spring.