Aimée Scala ’13, a part-time student, has won the National Law Review (NLR) 2011 Student Legal Writing Contest for her article, “Notions of the Transformative in Law and the Visual Arts.” The NLR is an online source of legal analysis for general audiences. The article explores the far-reaching ramifications of the decision in Gaylord v. United States, contending that it “poses severe limits on what may now be considered fair use of copyrighted materials” in works of art.
For the past six years, Scala has been the photo editor of Artforum magazine. In her work, she relies heavily on the fair use doctrine, which is the statutory exception to the exclusive grants given to authors and creators under federal copyright law. In reproducing images of artwork, the publishers must be careful to avoid copyright infringement or face lawsuits and severe fines.
“The fair use doctrine has been described as the most troublesome in the whole law of copyright,” Scala wrote, quoting a 1939 Second Circuit decision. “Artists who incorporate copyrighted material into their works don’t know until a lawsuit arises whether their use will be labeled infringement or protected artistic expression.” The courts determine fair use by balancing the law and the facts and performing an analysis using four distinct factors, including whether the purpose and character of the use is “transformative.” The Gaylord decision, she contends, “narrowed what constitutes a transformative work in the fair use context.”
The case involved a commemorative U.S. postage stamp that portrayed a sculpture of 19 stainless steel statues of foot soldiers that is part of the Korean War Memorial in Washington DC. The image was derived from a photo of the sculpture taken at dusk during a snowstorm, which imparted a surreal mood, the photographer explained. The image was further altered by printing the stamp in shades of gray.
The sculptor, Frank Gaylord, sued the United States for copyright infringement. The Court of Federal Claims found the use of the image to be a fair use. However, the Court of Appeals for the Federal Circuit reversed the decision holding that the use was not transformative because it did not use the image of the sculpture “as part of a commentary or criticism.”
“A photo of a public monument, built with public money, can’t be used on a stamp because it does not comment on or criticize the original sculpture.” Prior to this decision, a new artwork “could use copyrighted works as ‘raw materials’ to further creative or communicative objectives and still be considered transformative,” according to the Second Circuit in Blanch v. Koons (2006). Scala’s article described many works of art that changed the context of an image or object, thereby changing its meaning.
“The Federal Circuit—by narrowing transformative to include only comment or criticism of the copyrighted work—dismisses wholesale a broad range of established artistic practices and ignores the constitutional mandate that grounds U.S. copyright law, namely that exclusive intellectual property rights be granted to authors and inventors for limited times ‘to promote the progress of science and the useful arts,’” said Scala. “The holding of Gaylord may strangle creative energy and stifle previously protected artistic expression with the ominous threat of legal repercussions while rejecting important and established artistic practices.”
Scala who was a research assistant to Professor Jason Mazzone last summer said that, “Working on his forthcoming book Copyfraud dealing with ‘overreaching’ in intellectual property law gave me the confidence I needed to write this piece.”