If you are taking photographs of someone else’s copyrighted artwork, you should consider whether your images are infringing or whether they may be fair use. The four factors that a court will use to determine whether your photograph is a fair use of a copyrighted work are:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used; and
- the effect of the use upon the potential market.
The four factors are guidelines that courts use to decide fair use on a case-by-case basis, and the only way to know for sure if a particular use is fair is to have it decided in federal court. The best way to predict what a court would decide is to analyze the particular use in light of similar cases.
With regard to photographs of someone else’s copyrighted artwork, here are a few examples that may be instructive.
In the case of Gaylord v. United States , the U.S. Postal Service licensed a photograph by John Alli of a sculpture by Frank Gaylord. The sculpture, known as The Column, depicts soldiers in formation and is part of the Korean War Veterans Memorial. The USPS licensed the photograph from Alli but failed to get permission from Gaylord, who owned the copyright in the sculpture. Gaylord sued the U.S. government, which argued that the photograph was fair use because the creative use of snow and lighting was sufficiently transformative. The U.S. Court of Appeals for the Federal Circuit held that this was not fair use because the stamp and the sculpture shared the common purpose of honoring Korean War veterans.
Richard Prince is an appropriation artist whose “rephotographs” of other photographers’ work have tested the limits of fair use. In 2008, Prince exhibited artworks incorporating photographs that Patrick Cariou had taken in Jamaica and published in a book entitled Yes Rasta. In the case of Cariou v. Prince , the United States Court of Appeals for the Second Circuit held that 25 of the 30 artworks in question were “transformative” enough to qualify as fair use, and it remanded the case to the lower court for reconsideration of the remaining 5 works. However, the parties settled the case at that point. In 2014, Prince exhibited artworks consisting of photographs by others published on Instagram, blown up to a larger size, with comments added by Prince. Some of the works reportedly sold for more than $90,000. As of this writing, at least four lawsuits have reportedly been filed against Prince over his recent work.
Other appropriation artists have had mixed success asserting fair use as a defense in copyright infringement lawsuits. Thierry Guetta was a defendant in two such lawsuits, Friedman v. Guetta and Morris v. Guetta, over his use of other photographers’ images of famous musicians. In the Friedman case, Guetta used parts of Glen Friedman’s photograph of Run-DMC in his own artwork. In the Morris case, Guetta incorporated Dennis Morris’ photograph of Sid Vicious into seven of his own artworks, changing the colors and adding visual elements. In both cases, the U.S. District Court for the Central District of California found that Guetta’s use was not sufficiently transformative and was not fair use. In the case of Blanch v. Koons , artist Jeff Koons created a painting that incorporated part of a photograph by Andrea Blanch of a woman’s legs and feet, which had appeared in a fashion magazine. The U.S. Court of Appeal for the Second Circuit found that Koons’ use was fair, in part because “his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it.”
The case of Seltzer v. Green Day  involves a photograph taken by Roger Staub of graffiti art by Derek Seltzer, which was subsequently featured prominently as a backdrop in concerts and a video by the rock band Green Day. In designing the set for Green Day, Staub modified Seltzer’s Scream Icon image by adding a large red cross over it and black streaks running down the side. The U.S. Court of Appeals for the Ninth Circuit found that the use was fair because it was transformative and had little effect on the market for or value of Seltzer’s work.