Amateurs Imitate, Professionals Steal.
The works of 'appropriation artists' are always fraught with uncertainty. The wholesale lifting of someone else’s work would infuriate most image makers especially when the use is not deemed sufficiently transformative to merit a 'fair use' defense of copyright infringement.
There are several factors regarding fair use and copyright analysis to be considered determining if a specific work should be categorized as derivative or transformative: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Two cases with different outcomes.
Cariou v Prince
The United States Court of Appeals for the Second Circuit, ruled that artist Richard Prince's appropriation art treatment of Patrick Cariou's photographs was a not a copyright infringement and constituted a fair use.
Prince's works were indeed "transformative" to a "reasonable observer" and therefore fair use. In particular, the Court found that the lower court erred in requiring that the appropriating artist claim to be commenting on the original work, and found works to be transformative if they presented a new aesthetic.
Morris v Guetta
U.S. District Court for the Central District of California ruled that appropriation artist Thierry Guetta infringed photographer Dennis Morris’s copyright in a photograph of Sex Pistols singer Sid Vicious when he created seven works of art based on Morris’s black and white photograph.
Judge John A. Kronstadt cited in his ruling “An independent review of Defendants’ works shows that they are not sufficiently transformative … The Photograph is a picture of Sid Vicious making a distinct facial expression. Defendants’ works are of Sid Vicious making that same expression. Most of Defendants’ works add certain new elements, but the overall effect of each is not transformative.”