Photomontage
and


Intellectual
Property
Law

Overview
of
historical
and
contemporary
developments




by

Kristoffer
Johan
Lassen





A
culminating
document
submitted
in
partial
fulfillment

of
the
requirements
for
the
degree
of

Master
of
Science
in
Photography

Brooks
Institute
of
Photography



08/2009
 2

ABSTRACT



This
document
will
look
at
the
historical
development
of
photomontage
as
a
means
of
public

commentary,
capable
of
avoiding
censorship.
Having
established
a
historical
basis
for
this
type

of
expression,
the
paper
will
look
at
the
development
of
Intellectual
Property
law
and
discuss

how
it
relates
to
contemporary
photomontage.
It
will
then
go
on
to
review
how
certain
“fair

use”
provisions
of
copyright
law
serve
as
a
balance
between
public
and
private
rights.
Relevant

case
law
will
illustrate
the
conflict
between
“free
speech”
and
“exclusive
rights”
granted
to

individuals
authors.
The
document
will
conclude
with
a
review
on
how
recent
copyright

legislation
undermines
the
concept
of
“fair
use”
and
suggest
a
commercial
alternative
to
solve

legal
uncertainty.
 3

TABLE
OF
CONTENTS

Introduction
 
 
 
 
 
 
 
 
 
 
 
pg
4

SECTION
I

Historical
Background
of
the
Berlin
Dadaists

 
 
 
 
 

 pg
8

A
Curious
Self‐Portrait
and
Mechanical
Individuals
 
 
 
 
 
 pg
9

Photomontage
As
a
Way
to
Avoid
Censorship
 
 
 
 
 
 pg
14

Repressive
Authority
and
Visually
Paraphrasing
With
Photomontage
 
 
 pg
16

Concluding
Remarks
on
Section
I
 
 
 
 
 
 
 
 pg
20

SECTION
II

Historical
background
for
Copyright
Law
 
 
 
 
 
 
 pg
22

Modern
Development
of
Copyright
Law
in
the
United
States
 
 
 
 pg
25

Copyright
Infringement
and
Remedies
 
 
 
 
 
 
 pg
28

Contemporary
Photomontage
and
Derivative
Works
 
 
 
 
 pg
30

Cornell
University
Table
of
Copyright
Duration
 
 
 
 
 
 pg
35

Notes
to
the
Cornell
University
Table

 
 
 
 
 
 
 pg
39

SECTION
III

Photomontage
and
Fair
Use
 
 
 
 
 
 
 
 
 pg
43

Campbell
v.
Acuff‐Rose
Music,
Inc.
 
 
 
 
 
 
 
 pg
45

Rogers
vs.
Koons
 
 
 
 
 
 
 
 
 
 pg
46

Blanch
vs.
Koons
 
 
 
 
 
 
 
 
 
 pg
48

Leibovitz
v.
Paramount
Pictures
Corp

 
 
 
 
 
 
 pg
50

SunTrust
Bank
v.
Houghton
Mifflin
Co.
 
 
 
 
 
 
 pg
51

Ty,
Inc.,
v.
Publications
International
Ltd.
 
 
 
 
 
 
 pg
53

Digital
Millennium
Copyright
Act
and
Impact
on
Fair
Use
 
 
 
 
 pg
54

Solution:
Compulsory
Licensing
 
 
 
 
 
 
 
 pg
56

Conclusion
 
 
 
 
 
 
 
 
 
 
 pg
59

Works
Cited
 
 
 
 
 
 
 
 
 
 
 pg
62
 4

Introduction

The
events
following
September
11,
2001
stimulated
me
to
think
about
investigating
both
the

historical
and
contemporary
developments
within
the
field
of
photomontage.




I
was
working
in
Philadelphia
at
the
time,
and
one
evening
on
my
way
back
from
work
I
noticed

an
unusual
poster
on
display
in
a
subway
station.
It
was
a
collage
of
9/11
news
coverage,
a
cut‐
and‐paste
mix
of
Bin
Laden,
George
W.
Bush,
Dick
Cheney,
and
Donald
Rumsfeld.
The

characters
were
combined
with
the
visual
elements
of
the
twin
towers,
fighter
jets,
helicopters,

and
mushroom
clouds
superimposed
with
a
headline
from
the
latest
edition
of
Newsweek
that

said,
“How
scared
should
you
be?”



As
I
stood
there
contemplating
the
photomontage
a
fellow
commuter
stopped
and
also
began

viewing
it.
After
a
few
seconds
he
stepped
forward,
tore
the
poster
down,
said
some

profanities,
and
threw
it
in
the
nearest
trash
can.



At
the
time
I
was
working
in
the
intellectual
property
department
of
DuaneMorris
LLP,
one
of

Philadelphia’s
major
law
firms.
I
was
fascinated
by
the
impact
the
collage
had
made
on
my

fellow
commuter,
and
soon
I
started
to
reflect
on
various
forms
of
freedom
of
expression
and

censorship.
I
never
saw
either
the
poster
or
my
fellow
commuter
again
and
assume
that
these

actions
were
both
individual
in
nature.




However,
I
wondered
what
the
outcome
would
have
been
had
the
poster
been
mass
produced.

Specifically,
I
wondered
what
the
intellectual
property
implications
of
such
works
would
be,
and

if
copyrighted
photographs
could
be
used
in
photomontages
to
comment
on
aspects
of
popular

culture.
If
one
of
the
original
copyright
holders,
say
the
photographer
who
took
the
picture
of

George
W.
Bush,
had
felt
like
my
fellow
commuter,
I
wondered
if
he
could
have
stopped
the

publication
of
the
collage.
This
raised
the
question
of
to
what
extent
people
could
use

intellectual
property
laws
to
censor
expressions
with
which
they
did
not
personally
agree.



 5

Photomontage
was
first
introduced
by
the
Berlin
Dadaists
during
and
immediately
after
the

First
World
War.
As
with
the
poster
in
my
subway
station,
they
used
text
and
pictures
from

advertisements
and
news
stories
to
express
causality
between
warmongers
and
ill‐fated

politicians.
They
merged
images
and
text
in
order
to
express
alternative
perceptions
of
what

the
mainstream
media
had
presented.
Initially,
the
Dadaists
used
photomontage
as
a
way
to

comment
visually
on
current
events
because
censorship
laws
focused
mostly
on
literary

expressions.



The
early
photomonteurs
found
most
of
their
material
in
newspapers
and
magazines,
whereas

digital
technology
now
gives
access
to
a
new
world
of
visual
material
with
the
touch
of
a

button.
People
may
create
seamlessly
blended
images,
and
it
is
often
difficult
to
determine

whether
an
image
is
a
single
photographic
moment
or
a
composition
of
separate
photographs.



Although
today’s
technical
tools
stand
in
stark
contrast
to
those
used
by
the
original

photomonteurs,
so
does
the
importance
of
intellectual
property
law.
It
may
be
technically

easier
to
create
photomontages,
but
at
the
same
time
copyright
law
has
become
a
fundamental

consideration
for
artists
who
use
this
form
of
expression.



This
thesis
will
look
at
what
types
of
secondary
uses
of
copyrighted
works
are
acceptable.
More

to
the
point,
it
will
examine
when
and
how
copyrighted
photographs
can
be
included
in

photomontages
and
used
to
comment
on
popular
culture.
The
proposition
is
that
the
practice

of
photomontage
often
automatically
triggers
intellectual
property
claims,
and
that
in
order
to

guarantee
freedom
of
speech
and
an
unobstructed
exchange
of
ideas,
a
new
standard
for
visual

paraphrasing
needs
to
be
implemented.



The
first
section
of
this
thesis
outlines
the
historical
basis
for
photomontage
and
analyzes
its

origin,
techniques,
and
motivations.
Next,
a
historical
overview
of
the
Berlin
Dadaists
explains

how
this
artistic
group
used
the
half‐tone
printing
process
to
create
new
forms
of
expression,

and
specifically
how
they
used
mainstream
photographs
from
newspapers
and
magazines
to

 6

paraphrase
popular
culture
visually.



After
the
first
section
sets
up
the
basis
for
photomontage,
the
second
section
outlines
the

historical
development
of
copyright
laws,
which
were
originally
introduced
as
censorship
tools

to
control
the
printing
of
books.
During
the
Enlightenment
national
authorities
reformed
them

to
promote
the
effective
distribution
of
knowledge,
and
today
they
work
as
contracts
between

individual
creators
and
society
in
general.
The
section
examines
the
guiding
principle
of

intellectual
property
law,
which
is
the
promotion
of
science
and
the
useful
arts,
and
concludes

with
how
recent
developments
in
copyright
laws
have
affected
the
practice
of
photomontage.



The
third
and
final
section
explains
the
situation
in
which
new
technology
has
made

photomontage
a
technically
uncomplicated
exercise
while
modern
copyright
laws
have
had
the

exact
opposite
effect.
Photomonteurs
are
limited
by
vague
and
unpredictable
interpretations
of

the
law,
specifically
the
doctrine
of
fair
use,
a
defense
against
copyright
infringement
claims.

The
section
concludes
with
an
analysis
of
the
impact
that
recent
developments
in
the
law,
in

particular
the
Digital
Millennium
Copyright
Act
(DMCA),
has
had
on
the
fair‐use
defense.



The
conclusion
argues
that
photomontage
is
a
form
of
visual
paraphrasing
and
that
society’s

public
discourse
relies
on
such
referencing.
It
argues
further
that
copyright
laws
were

historically
drafted
to
deal
with
written
expressions
and
that
contemporary
culture
centers

mostly
on
visual
expressions.
It
concludes
by
suggesting
some
basic
guidelines
for
using

copyrighted
works
in
photomontages
while
the
legal
system
struggles
to
catch
up
with
the
new

technological
developments
and
popular
culture.



Throughout
this
thesis
the
term
photomontage
refers
to
the
technique
of
assembling
individual

photographs
together
in
a
montage
to
create
a
new
photographic
composition.
Photomontages

are
sometimes
combined
with
other
types
of
graphic
material;
however,
the
main
form
of

expression
remains
photographic,
which
distinguishes
it
from
collage.
Collages
are
also

assemblages
of
various
separate
materials
into
a
new
composition,
but
their
main
elements

 7

consist
of
various
forms,
textures,
and
three‐dimensional
objects,
not
just
photographs
(Garver

227).



The
majority
of
commercial
photographs
fall
within
this
definition.
However,
this
thesis’s
main

purpose
is
to
discuss
works
created
for
the
purpose
of
public
discourse.
In
some
instances

photomontages
participating
in
public
discourse
have
also
generated
commercial
gain,
and
this

thesis
analyzes
to
what
extent
this
affects
its
analysis
of
copyright
infringement.



Furthermore,
this
thesis
acknowledges
certain
differences
between
verbal
and
visual

paraphrasing
that
are
relevant
to
the
discussion
of
fair
use.
Paraphrasing
traditionally
means

the
restatement
of
a
text,
passage,
or
work
to
present
its
meaning
in
another
form.
Throughout

this
thesis,
visual
paraphrasing
refers
to
taking
an
expression
form
a
third‐party
photograph

and
incorporating
it
into
a
new
work,
a
photomontage.
 8

Section
1




Historical
Background
of
the
Berlin
Dadaists

Photomontage
emerged
as
a
form
of
expression
when
the
Dada
concept
was
introduced
to

Berlin
in
the
early
months
of
1918.
Richard
Huelsenbeck
(1892‐1974),
a
German‐born
artist,

introduced
Dadaism
to
Berlin
shortly
after
his
arrival
from
Zurich,
Switzerland
(Richter
108).
At

the
Club
Dada’s
first
soirée
in
Berlin
on
April
12,
1918,
Huelsenbeck
proclaimed
a
manifesto
in

which
he
articulated
the
principles
and
messages
that
said
that
Dadaism
should
strive
to

produce
art:

which
has
been
visibly
shattered
by
the
explosions
of
last
week,
which
is
forever
trying
to
collect

its
limbs
after
yesterday’s
crash.
The
best
and
most
extraordinary
artists
will
be
those
who
every

hour
snatch
the
tatters
of
their
bodies
out
of
the
frenzied
cataract
of
life,
who
with
bleeding

hands
and
hearts,
hold
fast
to
the
intelligence
of
their
time.
(Ades
26)




Perhaps
it
is
necessary
only
to
consider
the
environment
of
Berlin’s
inhabitants,
who
had

endured
the
cataclysmic
events
of
war,
starvation,
and
revolution,
to
understand
the

motivation
for
this
type
of
expression.
Berlin
was
going
through
its
third
winter
at
war
in
1918,

but
cultural
production
was
by
no
means
at
rest.
As
the
city
experienced
a
revolution,
the

Dadaists
took
part
and
formed
an
artistic
resistance
movement
against
the
establishment

(Richter
101).




The
Dadaists
perceived
themselves
to
be
in
direct
confrontation
with
the
romantic,

impressionist,
expressionist,
cubist,
and
futurist
art
ideals
dominant
at
the
time.
They
expressed

their
ideas
in
a
fragmentary
format
and
opposed
any
linear
model
of
communication
that

assumed
an
understanding
built
through
a
chronological
presentation
of
such
concepts
as

beginning,
middle,
and
end.
Instead,
the
Dadaists
promoted
an
anti‐art
movement
that

underlined
the
surreal
and
nonsensical
aspects
of
human
perception.
Finally,
they
denounced

all
academic
art
theory
and
declared
art
to
be
dead
(Richter
123).



The
Berlin
Dadaists
have
the
credit
for
creating
photomontage
because
they
were
the
first
to

 9

appropriate
imagery
distributed
by
the
mass
media
systematically.
With
the
half‐tone
printing

press,
newspapers
and
magazines
could
mass
produce
photographs,
and
the
Berlin
Dadaists

used
pictures
from
advertisements
and
news
stories
to
express
alternative
perceptions
of

popular
culture
(Richter
116).






More
specifically,
their
photomontages
commented,
criticized,
and
questioned
the
subjects

portrayed
in
the
news
coverage
and
advertisements
that
the
mass
media
distributed.
At
the

time
such
commentary
represented
an
entirely
new
way
of
expression
because
people
then

generally
considered
photographic
imagery
to
be
indisputable
proof
and
accurate

representations
of
real‐world
events
(Richter
116).




A
Curious
Self‐Portrait
and
Mechanical
Individuals

While
Huelsenbeck
introduced
the
Dada
concept
to
Berlin,
Raoul
Hausmann
(1887‐1971),
was

the
movement’s
main
figure.
Hausmann
was
among
the
Berlin
Dadaists,
and
was
known
as

being
extremely
versatile
and
presented
himself
one
day
as
“a
photomonteur,
on
the
next
a

painter,
on
the
third
a
pamphleteer,
on
the
fourth
a
fashion
designer,
on
the
fifth
a
publisher

and
poet,
on
the
sixth
an
‘optophonetician’,
and
on
the
seventh
day
–
resting
with
his
Hannah”

(Richter
108).



During
the
summer
of
1918,
while
vacationing
on
the
Baltic
coast,
Hausmann
and
his
girlfriend

Hannah
Höch
(1889‐1978)
discovered
that
their
landlord
had
decorated
the
room
in
which
they

stayed
with
a
most
peculiar
self
portrait.
The
landlord’s
face
had
been
pasted
onto
that
of
a

soldier
standing
in
full
uniform,
surrounded
by
the
German
Kaiser
and
his
descendants
with
all

the
medals
and
bravura
one
would
expect.
The
picture
struck
them
as
utterly
bizarre,
but

Hausmann,
according
to
Höch,
immediately
sensed
a
great
potential
in
the
technique
because
it

would
allow
them
to
express
ideas
in
a
new
way
(Ades
20).
After
the
holiday
the
two
went
on

to
experiment
with
interchanging
photos,
text,
and
other
imagery
as
an
artistic
form
of

expression.




 10

Hausmann
and
Höch’s
montages
often
display
dehumanized
and
unthinking
individuals

surrounding
themselves
with
pre‐manufactured
and
industrial
objects.
Rather
than
depicting

society
through
the
eyes
of
subjective
and
inward‐looking
artists,
their
photomontages
reveal

the
pre‐manufactured
and
repetitive
reality
that
characterizes
modern
life.
After
all,
Dadaists

described
expressionist
artists
as
self‐absorbed
and
possessed
individuals
with
immense

emotion
and
ego
(Richter
104).
Furthermore,
Hausmann
later
explained
that
by
choosing
the

term
photomontage,
the
Dadaists
sought
to
distance
themselves
from
movements
that
were

traditionally
understood
to
be
artistic
in
nature.
As
photomonteurs
they
compared
themselves

to
engineers,
assembling
products
just
as
any
other
working‐class
individual
would
(Richter

118).



In
his
photomontages,
Hausmann
repeatedly
emphasized
the
relationship
between
the

machine‐like
appearance
of
modern
humans
and
a
society
increasingly
built
by
assembly
lines.

This
view
may
be
seen
in
Dada
Conquers,
and
again
in
Tatlin
at
Home,
in
which
Hausmann

portrays
modern
humans
as
half‐human,
half‐machine.
In
Tatlin
at
Home,
a
man
resembling

Russian
artist
Vladimir
Tatlin1
(1885‐1953)
has
his
cranium
partially
open
with
modern

machinery
pouring
out
of
it.
The
title
of
the
work
indicates
a
fascination
with
Russian

production

art
at
the
time.
However,
as
Hausmann
himself
indicated,
this
connection
was

more
accidental
than
intentional
(Ades
27).









1
Tatlin was a Russian artist who was influenced by constructivism. He claimed that artists should become
technicians and merge with industry to communicate efficiently. He also claimed that only by making art
utilitarian could artists bring it to life (Harrison 334).
 11











 


Dada
Conquers
(1920)
 
 
 
 Tatlin
at
Home
(1920)




Höch’s
photomontages
continued
Hausmann’s
mechanical
theme,
but
from
different
spatial

and
gender
perspectives.
While
Hausmann
commonly
placed
his
subjects
within
a
room,
Höch

sometimes
worked
without
such
confinement.
In
Pretty
Maiden,
for
example,
her
subjects

stream
from
the
center
of
the
work
without
meeting
a
specific
rectangular
border.





In
Pretty
Maiden,
human
elements
diligently
interact
with
mechanical
devices,
and
at
the

center
of
the
work
a
light
bulb
that
seems
about
to
explode
replaces
the
head
of
a
woman.
A

wig
above
the
bulb
appears
to
be
part
of
her,
while
a
mechanical
crank
immediately
to
the
right

also
indicates
a
direct
relationship
to
her.
A
man
enters
the
scene
through
a
wheel
on
the
left,

but
it
is
somewhat
unclear
whether
he
desires
the
maiden
or
the
surrounding
BMW

paraphernalia.
Höch
has
also
included
a
hand
holding
a
watch,
and
above
it
a
female
head,

literally
displaying
the
meaning
of
an
empty
glance,
which
is
lost
in
time.



 12




 
 
 Pretty
Maiden
(1920)



In
1919’s
Cut
With
a
Kitchen
Knife
Though
the
last
Weimar
Beer
Belly
Epoch,
Höch
montages

persons
with
large
heads
onto
small
bodies
and
vice
versa.
The
effect
is
often
a
comic

perception
of
gender
roles,
particularly
when
applied
to
the
political
leaders
of
the
time.
The

juxtaposition
of
disproportionate
heads
and
bodies
came
to
characterize
Höch’s
style
within
the

genre
of
photomontage
(Wescher
173).

 13



Cut
with
a
Kitchen
Knife
...
(1919)
 14

Photomontage
as
a
Way
to
Avoid
Censorship

George
Grosz
(1893‐1959)
and
John
Heartfield
(1891‐1968)
represented
a
different
faction
of

the
Berlin
Dada
group.
Grosz
claimed
to
have
invented
photomontage
with
Heartfield
in
his

studio
in
Südende
during
the
spring
of
1916.
Their
first
projects
took
the
form
of
anti‐war

postcards
that
they
intended
to
send
back
to
friends
still
fighting
in
the
war.
Both
had
been

soldiers
in
the
German
army
during
the
war
and
had
communicated
their
antipathy
with
the

ongoing
war
to
their
families
by
way
of
cutting
and
pasting
images.
These
visual
postcards

escaped
the
censors,
as
they
were
focusing
on
written
criticism
(Wescher
174).




None
of
the
postcards
survived,
but
it
is
possible
to
imagine
from
observing
other
works
from

the
period
that
the
postcards
were
more
in
the
nature
of
a
typocollage
that
they
contributed
to

the
leftist
magazine
New
Youth,
published
by
Heartfield’s
brother,
Wielands
Herzfelde,
in
1917

(Ades
20).
These
pieces
involve
different
types
of
faces
and
images,
such
as
skull
and
bones,

ballet
dancers,
and
gramophones,
but
not
photographs.
The
first
recorded
superimposed

photographs
are
on
Heartfield’s
cover
for
Jeder
Mann
sein
eigener
Fussball,
or
Each
His
Own

Soccer
Ball
(February
1919),
which
was
a
satirical
newspaper
published
by
Wielands
Herzfelde

(Lavin
87).




 15




 
 
 
 Jeder
Mann
sein
eigener
Fussball
(1919)




True
to
Huelsenbeck’s
manifesto,
the
two
created
chaotic
and
fragmented
montages
and
jointly

signed
their
works.
Examples
of
their
work
are
Dada‐merica
and
Life
and
Activity
in
Universal

City
at
12.05
Midday.
The
pieces
are
similar
to
Höch’s
anti‐spatial
composition
style
and
also

apply
the
technique
of
visually
paraphrasing
mainstream
imagery
to
a
level
where
the
original

meaning
is
contradicted.
Regardless
of
whether
Grosz
and
Heartfield
or
Hausmann
and
Höch

discovered
photomontage,
“both
stress[ed]
sources
in
popular
and
comic
arrangement
of

photographs”
(Ades
24).



 16



Dada‐merika
(1920)
 
 
 
 Life
and
Activity
in
Universal
City
…”
(1919)



Repressive
Authority
and
Visually
Paraphrasing
With
Photomontage

After
the
Berlin
Dadaist
movement
left
the
public
spotlight
in
approximately
1923,
Heartfield

continued
to
improve
the
practice
of
photomontage
for
the
remainder
of
his
life
(Wescher

173).
In
contrast
to
the
initially
chaotic
compositions
that
reflected
an
intense
and
tumultuous

time
in
Berlin,
he
narrowed
his
focus
to
political
satire
and
commentary.
Through
the
publishing

house
he
had
co‐founded
with
his
brother
years
earlier,
he
found
his
audience
in
a
variety
of

leftist
magazines
and
newspapers.



The
topic
of
repressive
authority
continued
to
drive
Heartfield’s
work
in
the
time
leading
up
to

Adolf
Hitler’s
seizure
of
power
in
Germany
in
1933.
A
Pan‐German
superimposed
the
image
of

Julius
Streicher,
the
leader
of
the
brownshirts,
on
a
grotesque
photograph
of
a
murder
scene

taken
from
the
Stuttgart
police
archives.
The
photomontage
included
the
caption,
“The
womb

is
fruitful
yet
from
which
he
crept”,
a
quotation
from
a
Brecht
poem
called
‘Der
anacronistische

Zug
oder
Freiheit
und
Democracy’
that
more
than
implied
that
Streicher
was
born
and

nourished
from
a
culture
of
violence
(Ades
45).
The
piece
demonstrates
the
unique
quality
of

 17

political
photomontage.
Viewers
first
perceive
its
components
as
themselves
(ding
an
sich);

only
afterwards
do
they
take
on
the
appearance
of
commentary
and
new
representations
of

the
original.





In
another
montage
of
the
time,
Heartfield
addressed
the
burning
of
the
Reichstag
and
the
trial

of
four
accused
communists
who
were
supposed
to
have
set
it
on
fire.
Amid
widespread

publicity,
the
accused
were
acquitted
of
the
crime,
while
members
of
the
Nazi
Party
remained

the
chief
suspects.
In
response
to
the
political
farce,
Heartfield
created
Goering
the
Executioner

for
A‐I‐Z
or
Arbeiter‐Illustrierte‐Zeitung
(Workers'
Illustrated
Paper)
with
the
caption,
“In
Leipzig

on
21
September
four
innocent
men
–
victims
of
an
atrocious
crime
–
will
be
put
on
trial

together
with
the
provocateur
Lubbe.
The
real
Reichstag
fire‐raiser,
Goering,
will
not
appear

before
the
jury.”
(AIZ)






 

Goering
the
Executioner
(1933)

 
 




A
Pan‐German
(1933)




 

 18

Heartfield
commonly
used
the
political
joke
as
a
tool
to
disarm
the
rhetoric
of
the
National

Socialist
Party.
In
1935’s
Hurrah,
the
Butter
is
Finished,
he
applied
direct
quotations
of

statements
made
by
Goering
and
paired
them
with
manipulated
imagery
of
a
family
gathered

around
the
dinner
table,
eagerly
devouring
a
bicycle
and
other
heavy
industrial
steel
products,

with
the
caption,
“Iron
makes
a
country
strong,
butter
and
lard
only
makes
people
fat”
(Ades

57).
Another
example
is
Millions
Stand
Behind
Me,
in
which
Heartfield
explains
the
true

meaning
of
the
Hitler
salute.



 

Hurrah,
the
Butter
is
Finished!
(1935)

 


Millions
Stand
Behind
Me
(1932)



During
this
time
the
opposite
side
of
the
political
spectrum
was
also
using
photomontage
for

fascist
propaganda.
However,
it
was
to
Heartfield’s
distinctive
credit
that
his
content
rarely

gave
room
for
misinterpretation.
Xanti
Schawinsky
(1904‐1979),
for
example,
an
artist

commissioned
by
the
Italian
Fascist
party,
intended
to
produce
a
political
photomontage
in

support
of
Mussolini.
He
placed
the
head
of
state
on
a
cutout
photograph
of
numerous
people

gathered
for
a
mass
meeting
or
sports
event,
presumably
insinuating
that
Mussolini
was
a
man

of
and
for
the
people.
Still,
as
Mussolini
sternly
looks
down
at
them,
there
is
ample
room
for

 19

misinterpretation;
an
uncommitted
viewer
could
easily
see
him
as
a
“glowering
tyrant
[and]

devourer
of
his
people”
(Ades
50).







 
 1934
–
Year
XII
of
the
Fascist
Era
poster
(1934)



Whenever
exhibiting
his
work,
Heartfield
would
make
sure
to
have
the
original
sources
of
his

photomontages
available.
This
underlined
his
position
that
the
pieces
were
not
unique,
private,

nor
unrepeatable
works
of
art,
but
rather
“political
propaganda
aimed
at
a
wide
public”
(Ades

 20

43).
Ultimately,
this
line
of
thinking
also
corresponds
with
Hulesenbeck’s
original
Dada

manifesto.
While
the
manifesto
denounced
all
art,
and
certainly
abstract
art,
it
hinted
that
a

new
art
should
awaken
people
from
the
commonplace
while
calling
attention
to
their
own

banality.



Concluding
Remarks
to
Section
1

Dada
emerged
as
a
reaction
to
the
establishment,
focusing
on
the
problems
of
postwar

Germany
and
striving
for
socioeconomic
change
through
concrete
action.
Photomontage
was
a

new
form
of
expression
which
could
address
the
social
issues
of
that
time.
Photos
were

objective
and
trustworthy
references
to
reality
and
the
technique
accomplished
a
powerful

effect
by
placing
known
characters
in
new
settings.




Today
the
view
of
photography
is
different,
as
photographs
may
easily
be
enhanced
and
altered

by
digital
photo‐editing
tools.
It
is
not
always
clear
when
photographs
are
documentary
works

with
a
set
of
ethical
journalistic
standards
attached
to
them
or
when
they
are
political
or
artistic

forms
of
expression.




Furthermore,
life
in
the
developed
world
has
transformed
from
an
industrial
to
an
information

society:


Information
Society
is
a
term
for
a
society
in
which
the
creation,
distribution,
and
manipulation

of
information
has
become
the
most
significant
economic
and
cultural
activity.
An
Information

Society
may
be
contrasted
with
societies
in
which
the
economic
underpinning
is
primarily

Industrial
or
Agrarian.
The
machine
tools
of
the
Information
Society
are
computers
and

telecommunications,
rather
than
lathes
or
ploughs.
(TechTarget
n.p.)




The
transition
from
the
industrial
to
the
information
society
is
important
for
this
thesis
because

it
has
greatly
increased
the
emphasis
placed
on
the
protection
of
intellectual
property
assets

from
the
time
of
Dada.
Although
intellectual
property
regulations
also
existed
for
the
Dadaists,2

such
regulations
were
at
best
immaterial,
if
not
altogether
unknown
in
a
time
of
war
and
social


2
The Berne Convention of 1886 is the oldest multilateral copyright treaty (McCarthy 37).
 21

unrest.




However,
in
the
information
society,
intellectual
property
laws
are
centrally
important
because

competitors
increasingly
challenge
one
another
to
distinguish
otherwise
uniform
and
mass‐
produced
products.
Corporations
are
wary
of
the
secondary
use
of
images
associated
with
their

brands
because
this
may
compromise
the
messages
communicated
about
their
products
and

services.
Because
photomontage
frequently
use
materials
from
advertising
campaigns,
news

coverage,
or
both,
allegations
about
copyright
infringement
can
be
used
as
a
deterrent
to

unwanted
use,
including
implied
criticism.




Whereas
the
Dadaists
were
able
to
use
photomontage
partly
as
an
instrument
to
get
around

textual
censorship,
the
next
section
will
analyze
how
intellectual
property
laws
affect
the

practice
of
photomontage
today.
It
will
first
go
through
the
historical
development
of
copyright

law
and
then
address
how
recent
developments
limit
the
ability
to
paraphrase
visually
from

pre‐existing
works.







 22

Section
2



Historical
Background
of
Copyright
Law





Copyright
law
is
by
and
large
an
Anglo‐American
tradition
and
concept.
The
catalyst
for

developing
copyright
laws
was
the
invention
of
the
Gutenberg
press
in
1452,
which
made
book

publication
consistent
and
eliminated
the
possibility
of
interpretation,
censorship,
or
plain

inaccuracy
that
had
previously
existed
because
texts
had
been
reproduced
by
individuals
who

copied
them
by
hand
(Norman
24).




In
1557
a
trade
group
called
the
Company
of
Stationers
of
London
received
exclusive
rights
to

publish
and
distribute
texts
through
a
royal
charter
(Patterson
42).
The
Stationers’
unbroken

history
dated
back
to
1403
and
divided
different
types
of
work,
such
as
bookbinding,
printing,

and
distribution,
among
them.
It
also
designated
who
would
publish
what
so
the
members
of

the
trade
group
could
avoid
competing
with
each
other
(Patterson
29).



Previous
laws
had
also
regulated
the
art
of
printing,
but
the
royal
charter
of
1557
was
the
first

to
grant
exclusive
rights
to
a
specific
trade
group
(Patterson
21‐27).
The
Crown’s
motivation
for

giving
the
Stationers
exclusive
rights
to
publishing
was
undoubtedly
to
control
the
press;
the

Crown
relied
on
censorship
as
a
tool
to
govern
the
world
of
ideas
amidst
the
religious
struggles

of
the
era.
Queen
Mary,
who
was
Catholic,
first
established
the
charter
to
assure
that
public

writings
did
not
contradict
her
beliefs.
Queen
Elizabeth,
a
Protestant,
reaffirmed
the
Stationers’

exclusive
rights
to
publish
books
in
1559,
thereby
designating
them
as
the
policemen,
but
not

judges,
of
any
given
public
policy
(Patterson,
29).



The
Stationers
realized
that
enforcing
government
policy
guaranteed
continued
support
for

their
monopoly
of
the
book
trade.
The
government’s
policy
mattered
little
to
them
as
long
as

they
retained
the
exclusive
rights
to
print
and
publish
books.
“Their
business
was
to
live
and

make
money;
and
keen
enough
they
were
about
it”
(II
Arber
11,
Introduction,
Patterson
37).

 23

The
Stationers’
royal
charter
was
one
of
two
exclusive
rights
to
publishing
in
England
at
the

time.
A
second
system
called
the
printing
patent
was
also
in
effect.
Printing
patents
were

established
by
the
“sovereign
in
exercise
of
his
royal
prerogative”3
and
favored
the
few,
most
of

whom
were
members
of
the
Stationers
(Patterson
78).
The
printing
patent
was
more
desirable

because
it
allowed
substantial
prestige,
included
the
most
published
works,
and
was
considered

to
have
the
most
protection
under
the
king’s
power.





Patents
eventually
led
to
monopolies
among
the
Stationers
themselves,
and
by
passing
the

Statute
of
Monopolies
in
1623,
Parliament
articulated
its
efforts
to
limit
the
king’s
power.
The

patent
system
had
been
“abused
by
Elizabeth,
who
made
many
grants
for
purely
mercenary

reasons
to
enrich
the
royal
purse”
(Patterson
83).
The
Statute
of
Monopolies
limited
patents
to

new
inventions
and
could
not
be
granted
for
writings
as
such.



However,
given
the
Crown’s
desire
to
control
the
type
of
content
being
published,
it
pushed
for

the
enactment
of
“An
act
for
preventing
Abuses
in
Printing
Seditious,
Treasonable
and

Unlicensed
Books
and
Pamphlets,
and
for
Regulating
of
Printing
and
Printing
Presses”.
It
was

called
the
Licensing
Act
and
was
passed
into
law
in
1662.
It
allowed
the
Stationers
to
retain

their
exclusive
rights
to
publish
books,
but
for
a
limited
time
(Patterson
135).



The
Licensing
Act
expired
in
1694
and
the
Stationers
then
faced
unwanted
competition
from

Scottish
publishers.
The
Scots
exported
cheap
books
to
England
that
undercut
the
Stationers’

profits.
Unsuccessfully
petitioning
for
a
bill
“Regulating
of
Printing,
and
Printing‐Presses”
the

Stationers
lost
their
printing
monopoly.
The
expiration
of
the
Licensing
Act
did
not
remove
the

question
of
press
control,
“but
mark[ed]
the
beginning
of
the
shift
of
emphasis
from
censorship

to
property”
(Patterson
141).



After
the
Licensing
Act
had
expired,
the
publishing
industry
became
unpredictable,
and
in
order

to
remedy
this
situation
Parliament
passed
the
Statute
of
Anne
in
1710.
It
limited
the
power
of


3
The royal prerogative was “the power of the King [or Queen] to do things that no one else could do, and his
power to do them in a way in that no one else could do them” (Adams 78).
 24

publishers
by
making
copyright
available
to
all
persons,
not
only
publishers,
and
abolished

perpetual
copyright
(Patterson
145).
At
this
time,
Enlightenment
ideals
held
that
the
effective

spread
of
knowledge
and
information
benefited
society
as
a
whole.
Accordingly,
in
addition
to

bringing
order
to
the
publishing
industry,
the
new
legislation
put
a
definitive
end
to
the

Stationers’
monopoly
(Patterson
143).





Specifically,
the
Statute
of
Anne
granted
copyright
protection
to
newly
published
works
for
a

period
of
14
years,
renewable
for
one
additional
term
of
14
years
when
the
author
was
still

alive.
Works
that
were
already
published,
such
as
works
by
Shakespeare,
Milton,
and
Bacon,

received
a
single
term
of
21
years.
By
the
end
of
the
term
anyone
would
be
free
to
publish
the

book.
Thus,
under
the
Statute
of
Anne,
the
copyrights
to
works
by
Shakespeare,
Milton,
and

Bacon
would
expire
in
1731,
or
1710
plus
21
years.



Not
surprisingly,
English
publishers
were
again
fighting
to
keep
perpetual
copyrights
alive
by

1731.
They
argued
that
the
statute
gave
authors
certain
protection
through
the
Statute
of

Anne,
but
it
did
not
replace
the
publishers’
common‐law
rights
(Patterson
147‐149).
From
1731

a
series
of
court
cases
therefore
addressed
the
issue
of
the
perpetual
copyright.



The
cases
culminated
with
Donaldson
v.
Beckett
in
1774,
establishing
the
foundation
of

copyright
law
as
we
know
it
today.
Donaldson
was
a
Scottish
book
publisher
who
specialized
in

literary
works
that
had
expired
under
the
Statute
of
Anne.
Beckett
had
acquired
rights
he

thought
to
be
perpetual
and
sought
to
enforce
them
against
Donaldson.




The
issue
for
the
court
to
decide
was
whether
positive
law,
the
Statute
of
Anne,
or
common
law

should
prevail.
Law
enacted
by
legislation
is
positive
law,
while
common
law
is
based
on

decisions
made
in
previous
cases.
Under
the
Statute
of
Anne,
Beckett’s
works
were
no
longer

protected
because
the
limited
copyright
term
had
expired
(Patterson
158‐179).
Accordingly,
the

court
held
for
Donaldson,
stating
that
he
was
free
to
publish
works
whose
copyright
had

expired
under
the
Statute
of
Anne.


 25

Donaldson
v.
Beckett
became
one
of
the
early
intellectual‐property
cases
to
attract
widespread

public
attention.
The
Edinburgh
Advertiser
reported
great
“rejoicing
in
Edinburgh
upon
victory

over
literary
property:
bonfires
and
illuminations”
(Lessig
93).
Perpetual
copyrights
had

unequivocally
been
replaced
by
a
system
that
would
protect
copyrighted
works
for
only
a

limited
time.



Modern
Development
of
Copyright
Law
in
the
United
States

Modern
copyright
law
in
the
US
may
be
thought
of
as
a
contract
between
individual
authors

and
society
as
a
whole.
In
exchange
for
sharing
their
creations
with
society,
authors
receive
the

specific
benefit
of
the
exclusive
right
to
publish,
distribute,
and
otherwise
control
usage
of
their

work
for
a
limited
time
(McCarthy
93).
The
rights
are
in
truth
exclusive
because
under
the

principle
of
free
speech
authors
maintain
“both
the
right
to
speak
freely
and
the
right
to
refrain

from
speaking
at
all”
(Wooley
v.
Maynard,
430
U.S.
705,
714
[1977]).
Critics
who
argue
that

copyright
laws
impose
speech
restrictions
sometimes
overlook
that
freedom
of
expression
also

entails
a
freedom
not
to
speak.



Congressional
authority
to
regulate
copyright
rests
in
the
progress
clause
of
the
United
States

Constitution,
or
Article
I,
Section
8,
Clause
8,
which
states
that
“Congress
shall
have
the
power

[…]
to
promote
the
progress
of
science
and
useful
arts,
by
securing
for
limited
times
to
authors

and
inventors
the
exclusive
rights
to
their
respective
writings
and
discoveries.”
Under
this

constitutional
mandate,
Congress
has
the
right
to
define
what
content
is
to
be
protected
by

copyright
and
to
determine
how
long
the
rights
will
remain
in
effect.
By
giving
creators

exclusive
rights
to
publish,
distribute,
and
otherwise
control
the
use
of
their
work,
society
gains

immediate
access
to
creators’
expressions.




Once
they
expire,
however,
the
creators
lose
their
exclusive
rights
and
their
works
then

become
a
part
of
society’s
unregulated
pool
of
culture
from
which
anyone
can
draw
inspiration

without
infringing
on
individual
rights.
In
copyright
terms,
this
pool
of
unregulated
culture
is

called
the
public
domain
(McCarthy
354).

 26

Congress
extensively
modeled
the
first
US
Copyright
Act
in
1790
after
the
Statute
of
Anne.
It

limited
the
type
of
works
to
be
protected
by
copyright
to
“maps,
charts
and
books”
and
the

exclusive
rights
related
to
publishing
and
distribution
(Patterson
197).




In
contrast,
the
current
copyright
act,
passed
in
1976
(17
U.S.C.
§102[a]),
grants
copyright

protection
to
all
works
that
(a)
have
an
“author”
or
a
human
to
which
the
work
owes
its
origin,

(b)
reach
a
level
of
“individual
form
of
expression”,
and
(c)
are
“fixed”
in
a
tangible
media.
The

Copyright
Act
of
1976
also
grants
owners
or
authors
five
exclusive
rights
to
control
their
works.

These
are
the
rights
of
reproduction,
adaptation,
distribution,
performance,
and
display
of
the

work
in
public
(17
U.S.C.
§106).




Furthermore,
the
Copyright
Act
of
1978
stipulates
the
duration
of
the
exclusive
rights
and

defines
the
scope
of
expressions
protected
as
literary
works,
musical
works,
including
any

accompanying
words,
dramatic
works,
including
any
accompanying
music,
pantomimes
and

choreographic
works,
pictorial,
graphic,
and
sculptural
works,
motion
pictures
and
other

audiovisual
works,
sound
recordings,
and
architectural
works.





The
two
variables
of
scope
and
duration
have
been
in
continuous
development
throughout
the

twentieth
century.
There
has
been
a
constant
effort
to
strike
a
balance
between
public
interest

and
individual
interests
and,
at
the
same
time,
to
adapt
to
the
development
of
new

technologies
(Lessig
172).



An
example
of
the
balance
between
public
and
individual
interests
in
regard
to
photographs

and
photomontage
may
be
found
in
the
US
Supreme
Court’s
decision
in
Burrow‐Giles

Lithographic
Company
v.
Sarony
(188
U.S.,
251,
[1884]).
This
decision
held
that
photographs
are

protected
by
copyright,
and
that
although
the
photographs
themselves
were
not
considered

writings,
they
should
be
considered
the
work
of
an
author.
The
case
exemplifies
how
the
Court

has
adapted
the
scope
of
copyright
following
the
development
of
a
new
technology.

Specifically,
the
Court
held
that
copyright
protection
was
not
limited
to
writers
or
other
authors

 27

in
the
traditional
sense,
but
to
the
creators
of
all
forms
of
visual
art.



Individual
form
of
expression
refers
to
the
originality
requirement
that
is
a
pre‐requisite
for

copyright.
The
originality
threshold
for
copyright
is,
however,
notably
low,
and
simply
means

that
a
work
must
be
independently
created,
as
opposed
to
being
a
direct
copy
of
someone

else’s
work.
Only
a
minimal
degree
of
creativity
is
necessary,
the
amount
of
labor
involved
to

create
a
work
is
irrelevant
(Feist
Publications
Inc.
v.
Rural
Telephone
Service
Co.
Inc.,
499
U.S.

345
[1991]).




The
minimal
degree
of
creativity
concept
is
known
as
the
doctrine
of
non‐discrimination.
It

recognizes
that
it
“would
be
a
dangerous
undertaking
for
people
only
trained
to
the
law
to

constitute
themselves
final
judge
of
the
worth
of
pictorial
illustrations,
outside
the
narrowest

and
most
obvious
limits”
(Bleistein
v.
Donaldson
Lithographing,
188
U.S.,
251,
[1884]).

Specifically,
the
doctrine
of
non‐discrimination
states
that
any
original
work
of
authorship
fixed

in
a
tangible
medium,
be
it
yesterday’s
email
to
your
mom,
your
latest
to‐do
list,
or
a
collection

of
phone
doodles,
is
entitled
to
copyright
protection.





As
previously
mentioned,
works
that
are
in
the
public
domain
are
free
for
anyone
to
use.
Under

the
1790
act,
copyrighted
works
would
pass
into
the
public
domain
after
14
years
unless
their

authors
renewed
them
for
an
additional
14‐year
term,
resulting
in
a
maximum
of
28
years
of

copyright
protection.
The
initial
term
was
increased
to
28
years
in
1831
while
the
second
term

remained
the
same
(14
years),
leaving
a
potential
maximum
term
of
42
years.
In
the
Copyright

Act
of
1909,
the
second
term
was
extended
from
14
to
28
years,
which
increased
the
maximum

duration
of
copyright
protection
to
56
years.





The
current
Copyright
Act
of
1976
extended
the
duration
of
copyrights
to
the
life
of
the
author

plus
50
years.
In
addition
to
extending
the
copyright
term,
Congress
also
abandoned
the

renewal
requirement.
Prior
to
the
1976
act,
many
works
fell
into
the
public
domain
because

authors
failed
to
register,
renew,
or
properly
affix
a
copyright
notice.
Initially,
the
1976
act

 28

required
works
created
prior
to
1978
to
comply
with
those
renewal
requirements.
In
1998,

however,
under
the
Copyright
Term
Extension
Act
(CTEA),
all
copyrights
received
the
maximum

term
then
available
(Lessig
135).
The
CTEA
extended
the
copyright
term
to
the
life
of
the
author

plus
70
years
and
to
95
years
from
the
time
of
creation
for
corporate
works
and
works
made
for

hire,
which
include
works
prepared
by
employees
within
the
scope
of
their
employment
and

commissioned
works
that
fall
within
specified
categories
of
works
and
which
the
parties
agree

in
writing
to
treat
as
works
made
for
hire
(McCarthy
485).



The
constitutionality
of
Congress’s
enactment
of
the
CTEA
was
challenged
in
Eldridge
v.

Ashcroft
(537
US
186,
123,
S.Ct.
769
[2003]).
Like
Donaldson
in
his
time,
Eldridge
was
in
the

business
of
publishing
works
that
had
passed
into
the
public
domain.
He
had
organized
an

online
library
where
he
made
works,
often
out
of
print
and
hard
to
get
books,
accessible
to
the

public.
Eldridge
disputed
Congress’s
right
to
extend
the
copyright
duration
for
works
that
were

about
to
expire.
The
Supreme
Court
rejected
Mr.
Eldridge’s
claim,
holding
the
20‐year
copyright

extension
to
be
within
Congress’s
constitutional
grant
of
authority.




The
decision
effectively
prevented
Eldridge
from
publishing
works
that
otherwise
would
have

passed
into
the
public
domain.
Photomonteurs
are
also
affected
by
the
decision,
as
it
prevents

them
from
using
images
that
otherwise
would
have
been
unequivocally
in
the
public
domain.




Copyright
Infringement
and
Remedies

A
comparison
to
“trespass”
may
be
appropriate
in
helping
to
understand
the
concept
of

infringement.
It
is
the
use
of
someone
else’s
property
without
permission,
and
can
be
either

intentional
or
unintentional.



To
determine
whether
a
copyright
infringement
has
occurred,
one
must
first
establish
a
valid

copyright
and
then
prove
“substantial
similarity”
between
the
original
and
new
works.
Next,

one
must
find
a
use,
or
trespass,
of
one
of
the
original
creators’
exclusive
rights
to

reproduction,
adaptation,
distribution,
performance,
or
display.
Accordingly,
when
a
person

 29

invades
the
scope
of
a
copyright
owner’s
exclusive
rights,
and
there
is
substantial
similarity,

copyright
infringement
takes
place
(McCarthy
212).
The
Copyright
Act
does
not
attempt
to

define
the
degree
of
similarity
required;
it
merely
defines
an
infringer
as
anyone
who
violates

any
of
the
exclusive
rights
of
copyright
(17
U.S.C.
§501[a]),
but
US
federal
courts
have

developed
what
is
known
as
the
substantial
similarity
test
(McCarthy
420).



Copyright
law
makes
a
distinction
between
expression
and
idea.
Generally,
appropriating

someone
else’s
idea
is
acceptable,
while
using
others’
expressive
material
is
not.
For
example,

the
general
idea
of
taking
a
picture
of
a
cowboy
does
not
receive
copyright
protection.
In

contrast,
a
“photographer’s
selection
of
background,
lights,
shading,
positioning
and
timing”
of

a
particular
cowboy
are
expressive
tools
eligible
for
protection
under
copyright
law
(Gentieu
v.

John
Muller
&
Co.,
712
F.Supp.
740,
742
[W.D.
Mo.
1989]).



Infringement
does
not
necessarily
require
that
a
large
portion
of
the
work
be
similar
to
the

original;
the
standard
is
that
a
substantial
part
be
similar.
It
“is
enough
that
substantial
parts

were
lifted;
no
plagiarist
can
excuse
the
wrong
by
showing
how
much
of
his
work
he
did
not

pirate”
(Sheldon
v.
Metro‐Goldwyn
Pictures
Corp.
81
F.2d
49,
56).
Crediting
the
source
or

author,
or
improving
the
original
is
irrelevant
when
assessing
infringement.



Owners
lose
value
from
their
copyrights
when
infringements
occur,
and
accordingly
frequently

seek
relief
by
filing
suit
in
a
federal
court,
which
can
grant
preliminary
and
permanent

injunctions
if
infringements
are
established
and
may
order
offending
parties
to
cease
to
infringe

on
the
copyrights.
Courts
can
also
award
monetary
damages.
A
copyright
owner
can
recover
for

financial
losses
endured,
including
any
additional
profits
earned
by
the
infringing
party.
The

copyright
owner
may
also
choose
to
receive
statutory
damages.
The
basic
damages
range
from

$750
to
$30,000,
and
are
awarded
at
the
discretion
of
the
court.
The
limits
may
be
adjusted

based
on
the
innocence
or
willfulness
of
the
infringer.
If
the
defendant
proves
that
the

infringement
was
innocent
and
in
good
faith,
damages
may
be
reduced
to
as
little
as
$200
per

work.
Willful
infringement
may
trigger
damages
of
up
to
$150,000
per
work.
Courts
may,

 30

furthermore,
destroy
or
impound
illicit
reproductions
of
copyrighted
works.




Contemporary
Photomontage
and
Derivative
Works

The
exclusive
right
of
adaptation
is
authors’
exclusive
right
to
create
or
authorize
what
under

copyright
law
is
known
as
derivative
works.
A
derivative
work
is
“based
on
a
preexisting
work

[…]
in
which
the
preexisting
work
is
changed,
condensed,
or
embellished
in
some
way”

(McCarthy
114).
A
photomontage
is
naturally
derivative,
since
it
recycles
individual
pre‐existing

photographs
into
a
new
composition.



Derivative
works
may
be
created
from
works
currently
under
copyright
protection
or
from

works
in
the
public
domain.
As
outlined
above,
a
work
enters
the
public
domain
when
the

copyright
term
expires
and
can
then
be
adapted
without
restriction.
However,
due
to
the
many

recent
changes
in
copyright
law,
it
is
often
complicated
to
assess
which
works
are
in
the
public

domain
and
which
are
still
under
protection.



For
example,
in
Hoepker
v.
Kruger
(200
F.Supp.2d
340),
a
copyright
infringement
suit
was
filed

against
Barbara
Kruger
and
other
defendants
in
2001.
Kruger
had
created
a
photomontage
in

1990
by
radically
cropping
an
image
and
adding
new
textual
elements.


 31




 
 
 
 
 
 Barbara
Kruger
(1988)



The
original
image
was
created
by
Thomas
Hoepker,
a
German
photographer,
and
had
been

published
in
the
magazine
Foto
Prisma
in
1960.
At
the
time
Kruger
created
the
work
in
1988
its

copyright
had
expired
and
Hopeker
had
failed
to
renew
it.
Still,
he
sought
damages
and
the

destruction
of
all
copies
of
Kruger’s
work,
basing
his
claim
on
the
1994
restoration
of
copyright

protection
to
all
US
and
foreign
works.
It
had
then
complied
with
the
General
Agreement
on

Tariffs
and
Trade,
and
copyright
protection
was
granted
to
all
works
for
a
period
of
95
years

from
the
time
of
production.




Accordingly,
the
law
had
retroactively
reinstated
Hoepker's
copyright
and
extended
it
until

2055.
Nonetheless,
Hoepker
could
only
successfully
present
an
infringement
claim
had
he

notified
Kruger
of
his
reinstated
copyright,
and
if
use
of
his
image
had
not
ceased
within
one

year
of
the
notification.
The
court
found
that
Hoepker
had
failed
to
follow
this
procedure
and

held
that
no
infringement
had
taken
place.



 32

Since
photomontages
base
themselves
on
the
underlying
photographs,
they
are
all
derivative

works
and
subject
to
debate
about
whether
they
violate
the
right
to
adapt
an
original.
Nimmer

(Copyright
§3.01
[1994
rev]),
stated
that
in
order
to
be
a
derivative
work
a
new
work
must
be

so
substantially
similar
to
the
underlying
work
that
in
the
absence
of
a
license
it
would
be
a

copyright
infringement.
This
view
harmonizes
the
concepts
of
a
derivative
work
and
a
copyright

infringement.



Based
on
the
above,
it
is
clear
that
when
commenting
on
popular
culture
through
the
use
of

photographs
protected
by
copyright,
photomonteurs
face
concrete
intellectual‐property

challenges.
The
numerous
copyright‐term
extensions
and
the
abandonment
of
copyright

registration
and
renewal
procedures
have
made
the
public
domain
considerably
smaller.
Still,

registering
a
copyright
with
the
Copyright
Office
does
have
distinct
benefits.
Under
paragraph

504,
a
registered
copyright
is
entitled
to
statutory
compensation
for
up
to
$150,000
per

incident
of
willful
infringement.
More
importantly,
a
copyright
owner
cannot
sue
for

infringement
unless
the
work
has
been
registered
in
a
timely
manner.
Also,
attorneys’
fees

cannot
be
recovered
unless
the
work
is
registered.



These
extension
to
copyright
coverage
are
good
news
for
owners
who
have
little
interest
in

keeping
up
with
renewal
dates,
but
unfortunate
for
photomonteurs
because
it
makes
the

number
of
unprotected
works
available
considerably
smaller.
In
extreme
cases,
this
may
lead
to

situations
in
which
copyright
law
again
becomes
used
as
a
censorship
tool
for
unwanted

expressions.
One
example
of
this
surfaced
in
connection
with
the
run‐up
to
the
presidential

election
of
2004.
Several
conservative
news
organizations,
such
as
Fox
News,
as
well
as
more

liberal
publishers,
including
the
Washington
Post
and
the
New
York
Times,
published
stories

linking
John
Kerry
to
Jane
Fonda
and
un‐American
activities
at
an
anti‐war
rally
protesting
the

Vietnam
War
in
1972.
Accompanying
the
stories
was
a
photograph
that
showed
Kerry
and

Fonda
speaking
together
at
an
anti
war
rally.


 33




 
 
 
 
 
 
 
 Anonymous
(2004)

However,
the
photograph
had
been
digitally
altered
to
resemble
a
newspaper
clipping
that

contained
an
Associated
Press
photograph
showing
Kerry
and
Fonda
together
(Marinucci
n.p.).

In
reality,
however,
the
image
was
the
merger
of
two
individual
pictures
taken
by
two
separate

photographers
one
year
apart,
the
picture
of
Kerry
being
taken
by
Ken
Light
in
Mineola,
N.Y.,
on

June
13,
1971,
while
the
one
of
Fonda
had
been
shot
by
Owen
Franken
in
1972
in
Miami
Beach,

Florida.


 

There
was
no
license
for
the
use
of
the
images,
and
therefore
the
use
of
the
underlying
work
in

the
derivative
work
was
illegal
under
copyright
law.
The
images
were
registered
with
the
U.S.

Copyright
Office,
and
Corbis,
the
online
stock
agency
responsible
for
licensing
the
rights
to
the

images,
launched
an
investigation
to
determine
whether
its
digital
watermarks
and
fingerprints

were
capable
of
tracking
the
source
of
the
unauthorized
use.


 34














 

Owen
Franken
(1972)

 
 Ken
Light
(1971)
 
 



Apart
from
the
obvious
lack
of
appropriate
due
diligence
on
the
part
of
the
news
organizations,

the
incident
also
illustrates
how
copyrights
may
be
used
to
censor
expressions
built
on
previous

works.
Although
the
motivation
for
taking
legal
action
against
the
unauthorized
use
of
the

images
may
be
to
correct
the
historical
record
of
the
Kerry‐Fonda
association,
one
can
also

imagine
political
and
ideological
reasons
for
doing
so.



 

This
point
is
the
same
as
the
one
made
in
the
introduction,
and,
keeping
with
the
topic
of

George
W.
Bush,
it
can
be
illustrated
again
in
the
photomontage
below,
which
is
a
comment
on

Bush
senior’s
influence
on
junior’s
presidency.
Should
the
copyright
owners
of
either
of
the

individual
photographs
disagree
with
the
commentary,
they
could
choose
to
file
a
claim
based

on
the
Nimmer
definition
of
a
derivative
work.

.


 35



Unknown
Artist
(takeoverworld)

In
observing
Article
I,
Section
8,
Clause
8,
of
the
Constitution,
one
may
wonder
how
extending

the
copyright
term
to
benefit
the
estates
and
heirs
of
deceased
authors
contributes
to
the

spread
of
science
and
the
useful
arts.
Moreover,
if
Congress
has
the
power
to
extend
the

copyright
term,
the
Constitution’s
requirement
that
they
be
limited
has
no
practical
effect.
“If

every
time
a
copyright
is
about
to
expire,
Congress
has
the
power
to
extend
its
term,
then

Congress
can
achieve
what
the
Constitution
plainly
forbids,
perpetual
terms”
(Lessig
216).


 

In
order
to
avoid
the
possibility
of
an
infringement
claim
altogether,
the
general
rule
is
simply

to
use
works
where
the
photographer
has
been
dead
for
70
years.
The
below
table
from
Cornell

University
further
explains
the
exceptions
and
the
exceptions
to
the
exceptions.


36
37
38
 39

Notes
to
the
Cornell
University
Table


 1.
This
chart
was
first
published
in
Hirtle,
"Recent
Changes
To
The
Copyright
Law:

Copyright
Term
Extension,"
Archival
Outlook,
January/February
1999.
This
version
is
current
as

of
1
January
2008.
The
most
recent
version
may
be
found
at
http://www.copyright.cornell.edu/

public_domain/.
The
chart
is
based
in
part
on
Gasaway's
chart,
"When
Works
Pass
Into
the

Public
Domain,"
which
may
be
found
at
http://www.unc.edu/
~unclng/public‐d.htm,
and

similar
charts
found
in
Malaro‘s
A
Legal
Primer
On
Managing
Museum
Collections
(Washington,

DC:
Smithsonian
Institution
Press,
1998,
pp.
155‐156).
A
useful
copyright‐duration
chart
by

Minow,
organized
by
year,
may
be
found
at
http://www.librarylaw.com/DigitizationTable.htm.

A
flow
chart
for
copyright
duration
is
located
at
http://www.bromsun.com/practices/copyright‐
portfolio‐development/flowchart.
htm.
See
also
the
Library
of
Congress
Copyright
Office’s

Circular
15a,
Duration
of
Copyright:
Provisions
of
the
Law
Dealing
with
the
Length
of
Copyright

Protection
(Washington,
DC:
Library
of
Congress,
2004),
which
may
be
found
at

http://www.copyright.gov/
circs/circ15a.pdf.



 2.
The
law
treats
unpublished
works
registered
for
copyright
prior
to
1978
as
if
they
had

been
published
in
the
US,
though
note
that
the
only
formality
that
applies
is
the
requirement
to

renew
their
copyrights
after
28
years.
Unpublished
works
registered
for
copyright
since
1978

can
be
considered
as
if
they
were
an
"Unpublished,
Unregistered
Work."



 3.
All
terms
of
copyright
run
through
the
end
of
the
calendar
year
in
which
they
would

otherwise
expire,
so
a
work
enters
the
public
domain
on
the
first
of
the
year
following
the

expiration
of
its
copyright
term.
For
example,
a
book
published
on
15
March
1923
will
enter
the

public
domain
on
1
January
2019,
not
16
March
2018.



 4.
Unpublished
works
when
the
death
date
of
the
author
is
not
known
may
still
be

copyrighted
after
120
years,
but
certification
from
the
Copyright
Office
that
it
has
no
record
to

indicate
whether
the
person
is
living
or
died
less
than
70
years
before
is
a
complete
defense
to

any
action
for
infringement
(17
U.S.C.
§
302[e]).



 5.
Presumption
of
an
author's
death
requires
a
certified
report
from
the
Copyright
Office

that
its
records
disclose
nothing
to
indicate
that
the
author
of
the
work
is
living,
or
that
he
or

she
died
less
than
70
years
before.


 40


 6.
Copyright
law
did
not
explicitly
define
the
term
publication
before
1976,
although
the

1909
act
indirectly
indicated
that
it
occurred
when
copies
of
the
first
authorized
edition
were

placed
on
sale,
sold,
or
publicly
distributed
by
the
proprietor
of
the
copyright,
or
under
his
or

her
authority.


 7.
Not
all
published
works
are
copyrighted.
Works
prepared
by
an
officer
or
employee
of

the
US
government
as
part
of
that
person's
official
duties
receive
no
copyright
protection
in
the

US.
For
much
of
the
twentieth
century,
certain
formalities
had
to
be
followed
to
secure

copyright
protection.
For
example,
some
books
had
to
be
printed
in
the
US
to
receive
copyright

protection,
and
failure
to
deposit
copies
of
works
with
the
Register
of
Copyright
could
result
in

the
loss
of
copyright.
The
requirements
that
copies
include
a
formal
notice
of
copyright
and

that
the
copyright
be
renewed
after
28
years
were
the
most
common
conditions,
and
are

specified
in
the
chart.



 8.
A
1961
Copyright
Office
study
found
that
fewer
than
15%
of
all
registered
copyrights

were
renewed.
For
books,
the
figure
was
even
lower
at
7%.
See
Ringer,
"Study
No.
31:
Renewal

of
Copyright"
(1960),
reprinted
in
Library
of
Congress
Copyright
Office‘s
Copyright
law
revision:

Studies
prepared
for
the
Subcommittee
on
Patents,
Trademarks,
and
Copyrights
of
the

Committee
on
the
Judiciary,
United
States
Senate,
Eighty‐sixth
Congress,
first
[‐second]
session.

(Washington:
US
Govt.
Print.
Off,
1961,
p.
220).
A
good
guide
to
investigating
the
copyright
and

renewal
status
of
published
work
is
Demas
and
Brogdon,
"Determining
Copyright
Status
for

Preservation
and
Access:
Defining
Reasonable
Effort,"
Library
Resources
and
Technical
Services

41:4
(October,
1997):
323‐334.
See
also
Library
of
Congress
Copyright
Office,
How
to
investigate

the
copyright
status
of
a
work.
Circular
22.
(Washington,
DC:
Library
of
Congress,
Copyright

Office,
2004).
The
online
books
page’s
FAQ,
especially
"How
Can
I
Tell
Whether
a
Book
Can
Go

Online?"
and
"How
Can
I
Tell
Whether
a
Copyright
Was
Renewed?"
is
also
particularly
helpful.



 9.
The
following
section
on
foreign
publications
draws
extensively
on
Fishman,
The

Public
Domain:
How
to
Find
Copyright‐free
Writings,
Music,
Art
&
More.
(Berkeley:
Nolo.com,

2004).
It
applies
to
works
first
published
abroad
and
not
subsequently
published
in
the
US

within
30
days
of
the
original
foreign
publication.
Works
that
were
simultaneously
published

abroad
and
in
the
US
are
treated
as
if
they
are
American
publications.


 41


 10.
Foreign
works
published
after
1923
are
likely
to
be
still
under
copyright
in
the
US

because
of
the
Uruguay
Round
Agreements
Act
(URAA),
which
modified
the
General
Agreement

on
Tariffs
and
Trade.
The
URAA
restored
copyright
to
foreign
works
that
as
of
1
January
1996

had
fallen
into
the
public
domain
in
the
US
because
of
a
failure
to
comply
with
US
formalities.

One
of
the
authors
of
the
work
has
to
be
a
non‐US
citizen
or
resident,
the
work
cannot
have

been
published
in
the
US
within
30
days
after
its
publication
abroad,
and
the
work
needs
to
be

still
in
copyright
in
the
country
of
publication.
Such
works
have
a
copyright
term
equivalent
to

that
of
an
American
work
that
has
followed
all
of
the
formalities.
For
more
information,
see

Library
of
Congress
Copyright
Office,
Highlights
of
Copyright
Amendments
Contained
in
the

Uruguay
Round
Agreements
Act
(URAA),
Circular
38b.
(Washington,
D.C.:
Library
of
Congress,

Copyright
Office,
2004).



 11.
US
formalities
include
the
requirement
that
a
formal
notice
of
copyright
be
included

in
the
work,
that
it
be
registered
and
renewed,
that
copies
be
deposited
in
the
Copyright
Office,

and
that
it
be
manufactured
in
the
US.



 12.
The
difference
in
dates
is
a
product
of
the
question
in
the
controversial
Twin
Books

v.
Walt
Disney
Co.
decision
by
the
9th
Circuit
Court
of
Appeals
in
1996.
The
question
at
issue

was
the
copyright
status
of
a
work
published
only
in
a
foreign
language
outside
of
the
US
and

without
a
copyright
notice.
It
had
long
been
assumed
that
failure
to
comply
with
US
formalities

placed
these
works
in
the
public
domain
in
the
US,
and
as
such
were
subject
to
the
copyright

restoration
under
URAA
(see
note
10).
The
court
in
Twin
Books,
however,
concluded
that

"publication
without
a
copyright
notice
in
a
foreign
country
did
not
put
the
work
in
the
public

domain
in
the
United
States."
According
to
the
court,
these
foreign
publications
were
in
effect

unpublished
in
the
US,
and
hence
have
the
same
copyright
term
as
unpublished
works.
The

decision
has
been
harshly
criticized
in
Nimmer
on
Copyright,
the
leading
treatise
on
copyright,

as
being
incompatible
with
previous
decisions
and
the
intent
of
Congress
when
it
restored

foreign
copyrights.
The
Copyright
Office
as
well
ignores
the
Twin
Books
decision
in
its
circular

on
restored
copyrights.
Nevertheless,
the
decision
is
currently
applicable
in
all
of
the
9th

Judicial
Circuit
(Alaska,
Arizona,
California,
Hawaii,
Idaho,
Montana,
Nevada,
Oregon,

 42

Washington,
and
Guam
and
the
Northern
Mariana
Islands),
and
it
may
apply
in
the
rest
of
the

country.



 13.
See
Library
of
Congress
Copyright
Office,
International
Copyright
Relations
of
the

United
States.
Circular
38a.
(Washington,
D.C.:
Library
of
Congress,
Copyright
Office,
2004).



 14.
See
63
Fed.
Reg.19,287
(1998),
Library
of
Congress
Copyright
Office,
Copyright

Restoration
of
Works
in
Accordance
With
the
Uruguay
Round
Agreements
Act;
List
Identifying

Copyrights
Restored
Under
the
Uruguay
Round
Agreements
Act
for
Which
Notices
of
Intent
To

Enforce
Restored
Copyrights
Were
Filed
in
the
Copyright
Office.



 15.
Copyright
notice
requirements
for
sound
recordings
are
spelled
out
in
the
Copyright

Office’s
Circular
3,
“Copyright
Notice,”
available
at
http://www.copyright.gov/circs/circ03.html.





 43

Section
3

Photomontage
and
Fair
Use

Although
modern
technology
makes
it
easy
to
comment
on
popular
culture
with

photomontages,
it
is
increasingly
difficult
to
determine
whether
and
under
what
circumstances

such
use
may
be
permissible
under
copyright
law.
The
use
of
copyrighted
images
may,
of

course,
trigger
infringement
claims.
However,
depending
on
the
type
of
use,
photomontage

may
be
eligible
for
a
particular
copyright
infringement
defense
called
fair
use.
The
exception

recognizes
that
a
system
allowing
for
the
sharing
and
referencing
of
ideas
stimulates
public

discourse
and
benefits
society
as
a
whole.




 

Paragraph
107
of
the
Copyright
Act
states
that
fair
use,
“for
purposes
such
as
criticism,

comment,
news
reporting,
teaching
(including
multiple
copies
for
classroom
use),
scholarship,

or
research”
limits
the
exclusive
rights
forwarded
to
owners
of
a
copyright,
as
defined
in
the

act’s
paragraph
106.


 

The
paraphrasing
and
quoting
of
literary
works
has
long
been
acceptable
as
a
matter
of
public

policy
because,
according
to
Justice
Brennan’s
dissenting
opinion
in
Harper
&
Row
Publishers,

Inc.
v.
Nation
Enterprises
(471
U.S.
539
[1985]),
it
“assures
authors
the
right
to
their
original

expression
[and]
encourages
others
to
build
freely
upon
the
ideas
and
information
conveyed
by

a
work.”

It
is
this
paper’s
proposition
is
that
photomontage
should
be
characterized
as
a
way
of

visually
paraphrasing
and
quoting
from
the
mainstream
media.


 

The
act’s
paragraph
107
outlines
four
factors
to
consider
when
determining
whether
a
fair‐use

exception
applies.
These
are
(a)
the
purpose
and
character
of
the
use,
including
whether
use
is

of
a
commercial
nature,
(b)
the
nature
of
the
copyrighted
work,
(c)
the
amount
and

substantiality
of
the
portion
used,
and
(d)
the
effect
on
the
potential
market
of
the
original.


 

The
first
factor,
the
purpose
and
character
of
the
use,
determines
whether
the
use
in
question

contributes
to
the
purpose
of
copyright
law.
The
use
must
stimulate
creativity
for
general
public

 44

enrichment
and,
consistent
with
the
progress
clause,
advance
knowledge
and
progress
in
the

arts.
It
should
not
supersede
or
replace
the
need
for
the
original,
and,
accordingly,
an
important

consideration
is
whether
the
new
use
is
transformative,
as
opposed
to
being
merely
derivative.

An
ancillary
consideration
is
whether
the
use
is
of
a
commercial
nature
or
for
a
nonprofit

educational
purpose.
Generally,
more
space
is
allowed
for
non‐commercial
uses.


 

The
second
factor,
the
nature
of
the
copyrighted
work,
considers
certain
aspects
of
the
work,
in

particular
whether
it
is
based
on
historical
facts
or
is
purely
fictional.
As
mentioned
above,
facts

and
ideas
are
not
copyrightable;
only
the
individual
expressions
used
to
convey
them
are.
More

protection
is
awarded
to
fictional
works
that
apply
creative
expression
than
to
non‐fictional

works
that
document
historical
facts.


 

The
third
factor,
the
amount
and
substantiality
of
the
portion
used,
evaluates
how
much
of
the

copyrighted
work
has
been
imported
into
the
new
work.
If
only
a
little
has
been
used
in
relation

to
the
whole
work,
for
example
a
few
sentences
of
a
text
for
a
book
review,
there
is
a
greater

likelihood
that
the
use
will
be
considered
fair.



 

The
fourth
factor
determines
the
effect
a
secondary
use
has
on
the
original
owner's
ability
to

exploit
his
or
her
work.
In
evaluating
this,
the
courts
consider
two
kinds
of
harm.
These
are

whether
the
use
is
a
direct
market
substitute
for
the
original,
and
whether
market
harm
goes

beyond
direct
substitution,
affecting
potential
licensing
markets.



 

The
four
factors
originally
appeared
in
Folsom
v.
Marsh
(9
F.Cas.
342
[1841]).
The
court

analyzed
the
defendant’s
copying
of
353
pages
from
the
plaintiff's
12‐volume
biography
of

George
Washington.
The
copying
had
taken
place
in
order
to
create
a
new
but
significantly

smaller
work.
In
the
decision,
the
court
rejected
the
defendant's
plea
for
a
fair‐use
defense,

noting
that:

[One]
may
fairly
cite
largely
from
the
original
work,
if
his
design
be
really
and
truly
to
use
the

passages
for
the
purposes
of
fair
and
reasonable
criticism.
On
the
other
hand,
it
is
as
clear,
that
if

he
thus
cites
the
most
important
parts
of
the
work,
with
a
view,
not
to
criticize,
but
to
supersede

 45

the
use
of
the
original
work,
and
substitute
the
review
for
it,
such
a
use
will
be
deemed
in
law
a

piracy
[…]



 [We
should]
look
to
the
nature
and
objects
of
the
selections
made,
the
quantity
and

value
of
the
materials
used,
and
the
degree
in
which
the
use
may
prejudice
the
sale,
or
diminish

the
profits,
or
supersede
the
objects,
of
the
original
work.
(9
F.Cas.
342
[1841])



 

The
fair‐use
defense
calls
for
a
case‐by‐case
analysis
and
does
not
provide
a
bright‐line
rule
to

determine
whether
a
particular
use
is
fair.
The
next
six
sections
will
review
recent
cases

discussing
the
application
of
the
fair‐use
factors.



Campbell
v.
Acuff‐Rose
Music,
Inc.

Photomontages
often
take
humorous
and
sarcastic
approaches
and
frequently
apply
elements

of
parody
in
order
to
convey
meaning
about
their
subjects.
A
landmark
fair‐use
case

exemplifying
the
fair‐use
defense
in
regard
to
parody
is
Campbell
v.
Acuff‐Rose
Music,
Inc.
(114

S.Ct.
1164
[1994]).
A
hip‐hop
group
called
2
Live
Crew
had
used
significant
portions
of
Roy

Orbison’s
1962
hit
song
“Pretty
Woman”
in
a
release
called
“Hairy
Woman”.
The
Supreme

Court
acknowledged
parody
as
a
form
of
social
criticism
with
significant
social
value
under
the

principle
of
free
speech.




Starting
with
the
purpose
and
character
of
2
Live
Crew's
use,
the
Court
found
that
the
more

transformative
the
parody,
the
less
significance
would
be
given
to
the
other
three
factors.

Accordingly,
the
greater
degree
of
creative
transformation,
the
more
likely
one
would
be
the

have
a
successful
fair‐use
defense.
The
Court
held
that:


The
goal
of
copyright,
to
promote
science
and
the
arts,
is
generally
furthered
by
the
creation
of

transformative
works.
Such
works
thus
lie
at
the
heart
of
the
fair
use
doctrine’s
breathing
space

within
the
confines
of
copyright
[…]
the
more
transformative
the
new
work,
the
less
will
be
the

significance
of
other
factors,
like
commercialism,
that
may
weigh
against
a
finding
of
fair
use.

(Campbell
v.
Acuff
Rose
Music,
Inc.,
114
S.
Ct.
1164,
1171)



 

The
Court
found
that
second
factor,
the
nature
of
the
copyrighted
work,
had
little
merit
in

resolving
parody
cases.
The
artistic
value
of
such
works
is
found
in
their
ability
to
copy
popular

 46

works
of
the
past,
either
fictional
or
non‐fictional.
To
determine
the
legitimacy
of
the
secondary

use
the
Court
also
had
to
review
the
amount
and
substantiality
of
the
portion
used.
It
applied
a

conjure
up
test,
which
states
that
a
parodist
may
use
the
amount
of
copyrighted
material

necessary
to
conjure
up,
or
recall,
the
original
of
which
fun
is
being
made.
“When
a
parody

takes
aim
at
a
particular
original
work,
the
parody
must
be
able
to
‘conjure
up’
at
least
enough

of
that
original
to
make
the
object
of
its
critical
wit
recognizable”
(Campbell
v.
Acuff‐Rose

Music,
Inc.,
114
S.Ct.
1164,
1176
[1994]).The
Court
then
looked
at
the
new
work
as
a
whole
and

found
that
it
departed
significantly
from
the
Orbison
song’s
choice
of
words
and
otherwise

produced
distinctive
music.


 

Reviewing
the
final
factor,
the
Court
found
that
parodies
in
general
are
rarely
substitutes
for

original
works
because
they
serve
different
market
functions.
Acuff‐Rose
argued
that
it
had
a

potential
derivative
rap
market,
but
the
Court
found
no
evidence
that
2
Live
Crew's
parody

harmed
any
such
potential.
The
Court
also
found
it
unlikely
that
artists
would
find
the
parody‐
derivative
market
particularly
lucrative.



Rogers
v.
Koons

Koons,
a
major
artist
appropriating
the
works
of
others
in
his
pieces,
prepared
a
show
in
1987

called
the
Banality
Show,
consisting
entirely
of
sculptures.
According
to
Koons
the
subject
for

the
show
was
banality,
but
that
it
also
contained
a
spiritual
message,
arguing
that
“while
being

uplifting,
the
work
would
be
critical
commentary
on
conspicuous
consumption,
greed
and
self‐
indulgence”
(Rogers
v.
Koons,
715
F.
Supp.
476
[S.D.N.Y.
1988]).



 

In
collecting
material
which
inspired
the
creation
of
his
art
pieces,
Koons
purchased
two

postcards
containing
photographs
by
Art
Rogers.
One
of
the
photographs
showed
a
male‐
female
couple
holding
an
armful
of
puppies.
Koons
then
created
a
sculpture
based
on
the
black‐
and‐white
photograph
called
“A
String
of
Puppies”
without
contacting
Rogers.
In
the
process,

Koons
made
specific
choices
related
to
the
use
of
colors
and
added
certain
ridiculous
elements

to
the
couple’s
heads
and
the
puppies’
noses.

 47




 “Puppies”
by
Art
Rogers
(1980)
 






“String
of
Puppies”
by
Jeff
Koons
(1988)

Koons
raised
two
defenses
against
the
copyright
infringement
claim:
First,
that
he
had
used

non‐copyrightable
ideas
from
Rogers’s
photograph.
He
therefore
argued
that
he
had
not
made

use
of
Rogers’s
creative
expression,
but
the
US
Court
of
Appeals
for
the
Second
Circuit

disagreed.
Specifically,
it
found
that
the
sculpture
was
derivative
and
that
Rogers
had
the
right

to
exercise
control
over
the
creation
of
such
works.



 

Next,
Koons
alleged
fair
use
based
on
free
speech
and
the
right
to
make
a
parody
of
the
original

image.
Here
the
court
also
sided
with
Rogers,
stating
that
a
parody
defense
could
only
be

invoked
where
the
subject
being
parodied
was
likely
to
be
recognized
by
the
audience
viewing

the
sculpture.
What
the
court
did
not
recognize,
however,
was
that
Koons
could
be
seen
to
be

making
a
comment
on
popular
culture
in
general
and
postcard
buyers,
and
not
on
Rogers’s

image,
the
copyrighted
property,
in
particular.


 

One
issue
which
may
have
influenced
the
court
in
siding
with
Rogers
was
Koons’s
commercial

success
as
an
artist.
The
Banality
Show
sold
three
out
of
four
existing
sculptures
to
the
tune
of

$367,000.
Koons
kept
the
fourth
sculpture
himself.







 48

Blanch
v.
Koons

In
a
more
recent
decision,
Blanch
v.
Koons
(U.S.
District
Court,
Southern
District
of
New
York,

03‐Civ‐8026
[November
1,
2005]),
the
court
held
in
Koons’s
favor.
This
time
Koons
had
used
a

fashion
photographer's
photo
as
part
of
a
collage
assembled
for
a
painting.
Blanch
claimed
that

the
use
of
her
depiction
of
a
pair
of
woman's
feet
in
a
Gucci
advertisement
for
silk
sandals

constituted
an
infringement
of
her
copyright.


 

As
in
the
above
case,
Koons
admitted
appropriating
and
altering
the
plaintiff’s
image.
Koons’s

work
was
called
"Niagara",
and
the
image
was
comprised
of
four
sets
of
women’s
feet
hanging

from
the
top
of
the
canvas,
juxtaposed
with
images
of
pastries
and
other
treats,
presumably

with
Niagara
Falls
as
a
background.







 “Niagara”
by
Koons
(2000)
 
 
 
 “Silk
Sandals”
by
Blanch
(2000)


 

In
regard
to
the
first
fair‐use
factor,
purpose
and
character,
Koons
explained
that
the
women’s

legs
were
placed
against
a
backdrop
of
food
and
landscape
in
order
to:

comment
on
the
ways
in
which
some
of
our
most
basic
appetites
–
for
food,
play,
and
sex
–
are

mediated
by
popular
images.
[…]
By
re‐contextualizing
these
fragments
as
I
do,
I
try
to
compel

the
viewer
to
break
out
of
the
conventional
way
of
experiencing
a
particular
appetite
as

mediated
by
mass
media.
(3)

 49

In
Blanch's
photograph,
as
well
as
in
the
other
ones
he
used,
Koons
found
“a
particular
type
of

woman
frequently
presented
in
advertising.”
In
the
decision,
the
court
emphasized
that
Koons’s

purposes
for
using
Blanch's
image
were
very
different
from
Blanch's
original
goals
in
creating
it.

Blanch
wanted
“to
show
some
sort
of
erotic
sense”
and
to
get
“more
of
a
sexuality
to
the

photographs”,
whereas
Koons
was
using
it
as
a
way
to
comment
on
the
“social
and
aesthetic

consequences
of
mass
media”
(18).


 

Of
key
importance
for
the
case,
of
course,
was
whether
the
use
was
transformative
and

whether
it,
according
to
Campbell
v.
Acuff‐Rose
Music,
Inc.
(510
U.S.
569),
added
“something

new,
with
a
further
purpose
or
different
character,
altering
the
first
with
new
expression,

meaning
or
message.”
The
court
found
that
it
did
and
noted
that
Koons
had
made
various

alterations
to
Blanch’s
picture.
In
the
original
work
Blanch
depicted
the
women’s
legs
resting
on

a
man’s
lap
in
a
first‐class
airplane
cabin,
whereas
Koons
only
appropriated
the
legs
from
the

photograph,
omitting
the
airplane
reference
and
the
man's
lap.
In
addition,
Koons
inverted
the

orientation
of
the
legs,
letting
them
hang
vertically
instead
of
slanting
upward
at
a
45‐degree

angle.
Finally,
Koons
modified
the
photograph’s
color
and
added
a
heel.



 

The
judge
found
that
the:

painting’s
use
does
not
supersede
or
duplicate
the
objective
of
the
original,
but
uses
it
as
raw

material
in
a
novel
context
to
create
new
information,
new
aesthetics,
and
new
insights.
Such

use,
whether
successful
or
not
artistically,
is
transformative.
(8)



 

In
the
Rogers
case,
on
the
other
hand,
Koons
had
“slavishly
recreated
a
copyrighted
work
in
a

different
medium
without
any
objective
indicia
of
transforming
it
or
commenting
on
the

copyrighted
work”,
and
ultimately
failed
to
show
a
clear
argument
for
how
artistic
commentary

was
taking
place
(960
F.2d
301
[2d
Cir.
1992]).



 

Having
found
that
Koons’s
use
was
transformative,
the
court
saw
the
other
factors
as
less

important.
Furthermore,
in
regard
to
any
potential
commercial
detriment,
Blanch
testified
that

Koons’s
use
did
not
harm
her
career,
upset
any
plans
she
had
for
the
use
of
the
image,
nor

 50

decrease
its
value.
Based
on
these
admissions
the
court
concluded
that
”Niagara”
did
not

adversely
affect
the
potential
market
or
value
of
the
copyrighted
work.



Leibovitz
v.
Paramount
Pictures
Corp

In
Leibovitz
v.
Paramount
Pictures
Corp.
(948
F.
Supp.
1214
[S.D.N.Y.
1996]),
a
famous

photographer
claimed
that
Paramount
Pictures
had
unfairly
copied
one
of
her
portraits.

Leibovitz
had
photographed
the
actress
Demi
Moore
for
the
August
issue
of
Vanity
Fair
in
1991.

The
photograph
depicted
a
pregnant
Moore
in
the
nude,
in
profile,
and
composed
in
a
classical

Venus
Pudica
pose.



 

In
an
advertisement
for
the
film
Naked
Gun
33
1/3:
The
Final
Insult,
Paramount
used
Leslie

Neilsen’s
smirking
head
superimposed
onto
another
model’s
body
in
the
same
arrangement
as

Leibovitz’s
original
work.
Leibovitz
claimed
that
the
poster
should
fall
outside
of
a
fair‐use

defense
because
it
was
used
for
a
commercial
purpose.
The
court,
however,
found
that
the

advertisement
was
a
parody
and
that
it
was
entitled
to
a
fair‐use
defense.


 

Quoting
the
Campbell
opinion,
it
stated
that
“the
quality
of
the
parody
is
not
to
be
evaluated

[…]
the
relevant
inquiry
is
whether
a
parodic
character
may
reasonably
be
perceived”
(Section

III).
In
its
analysis,
the
court
noted
that
although
the
posing
of
the
models
is
the
same,
other

elements
are
different.
The
lighting
in
the
Paramount
photo
is
harsher
and
has
more
contrast

and
brighter
colors,
whereas
Leibovitz’s
photo
applies
a
warmer
and
more
subdued
lighting

technique.
In
addition,
the
ring
used
on
the
model's
right
hand
in
the
Paramount
photo
is
much

larger
than
the
ring
Moore
is
wearing
on
her
right
hand.
The
models'
facial
expressions
are
also

significant.
Moore's
serious
expression
mimics
her
classical
pose,
whereas
Nielsen's
face
bears
a

smirk
and
contradicts
any
serious
admiration.
Together,
these
artistic
choices
establish
a

parodic
effect
in
Paramount's
photograph.


 

Examining
the
fair
use
defense
further,
the
court
found
that
although
Paramount
relied
heavily

on
Leibovitz's
composition,
market
harm
could
not
be
established.
Leibovitz
argued
that
she

 51

was
entitled
to
licensing
revenue,
but
the
court
found
that
“parody
and
the
original
usually

serve
different
market
functions.”
The
court
found
further
that
“harm
resulting
from
the
’lethal’

nature
of
the
parody,
is
not
a
harm
cognizable
under
the
Copyright
Act.”


 

In
regard
to
photomontage,
the
case
suggests
that
simply
taking
Nielsen’s
head
and

superimposing
it
on
Leibovitz’s
work
would
have
fallen
short
of
fair
use
in
this
context.
The

court
also
gave
great
emphasis
to
the
consideration
Paramount
showed
by
re‐creating
the

composition
with
slightly
different
artistic
choices.


 

Assuming
that
an
individual
artist
wanted
to
do
a
commentary
on
Leibovitz’s
self‐important

self‐association
with
great
classical
masters,
superimposing
Nielsen’s
head
in
the
photograph

might
also
have
been
fair.
However,
in
commercial
advertising
the
taking
of
a
professional

portrait
to
further
one’s
own
product
would
strongly
weigh
against
a
finding
of
fair
use.



 
 


 
 
Leibovitz
(1991)
 
 
 
Movie
poster
for
Naked
Gun
33
1/3



SunTrust
Bank
v.
Houghton
Mifflin
Co.

The
SunTrust
Bank
v.
Houghton
Mifflin
Co.
(252
F.
3d
1165
[11th
Cir.
2001])
case
concerned
the

publication
of
a
book
called
The
Wind
Done
Gone,
written
by
Alice
Randall,
which
was
a

commentary
on
and
parody
of
the
classic
novel
Gone
With
The
Wind
by
Margaret
Mitchell.
The

case
highlights
the
ongoing
tension
between
the
First
Amendment
and
copyright
law.

 52

Randall’s
initial
motivation
for
creating
the
work
was
that
she
thought
Gone
With
The
Wind
was

an
inaccurate
portrayal
of
Southern
history.
She
found
it
to
depict
a
myth
that
never
existed,

and
accordingly
wrote
The
Wind
Done
Gone
to
attack
such
myths
as
the
notion
of
the
happy

slave
and
the
compassionate
slave
owner.



 

Specifically,
The
Wind
Done
Gone
narrates
the
story
of
a
woman
called
Cynara,
the
illegitimate

child
of
Planter,
the
plantation
owner,
and
Mammy,
the
slave
caring
for
his
children.
Many
of

the
scenes
and
characters
are
similar,
but
through
the
new
work
readers
can
see
the
story
from

a
new
perspective.



 

SunTrust
Bank,
trustee
for
Margaret
Mitchell’s
heirs
and
the
owner
of
the
copyright
to
Gone

With
The
Wind,
sued
for
copyright
infringement.
They
had
authorized
several
sequels
to

Mitchell’s
book
and
claimed
that
the
work
competed
in
the
same
market
as
these.
However,

this
argument
ignored
the
reality
that
The
Wind
Done
Gone
could
easily
be
understood
as

ridiculing
Gone
With
The
Wind.
Houghton
Mifflin
marketed
the
work
as
parody,
displaying
the

phrase
“The
Unauthorized
Parody”
on
its
jacket
spine
and
“A
provocative
literary
parody
that

explodes
the
mythology
perpetrated
by
a
southern
classic”
on
the
top
of
its
front
cover.


 

Still,
the
district
court
was
convinced
that
Randall’s
book
lifted
whole
passages
from
the
original

and
infringed
its
copyright.
It
issued
a
preliminary
injunction
restraining
Houghton‐Mifflin
from

the
production,
display,
distribution,
advertising,
and
sale
of
the
book.



 

The
11th
US
Circuit
Court
of
Appeals
lifted
the
injunction,
ruling
that
it
violated
the
First

Amendment.
It
found
that
the
work
qualified
for
a
fair‐use
defense
because
it
was
a
criticism
of

how
slavery
and
race
relations
were
depicted
in
Gone
With
The
Wind.
It
also
ruled,
moreover,

that
The
Wind
Done
Gone
achieved
a
significant
transformative
effect
which
overshadowed
the

unlikely
harm
to
SunTrust’s
licensing
revenue.
The
court
further
found
no
direct
evidence
of

market
harm
and
concluded
that
the
two
books
catered
to
different
markets.


 

 53

In
effect,
the
court
used
the
First
Amendment
to
impose
a
limitation
on
SunTrust’s
copyright,

giving
the
public
access
to
ideas
and
viewpoints
which
otherwise
would
have
been
censored.

The
court
also
stressed
that
copyrights
should
not
be
used
to
prevent
works
from
being

criticized.


 

We
could
imagine
a
similar
argument
being
made
for
the
use
of
copyrighted
images
in

photomontages.
Artists
frequently
use
photomontage
to
comment
on
well‐documented
events

to
offer
criticism
or
a
new
perspective.
However,
we
should
note
that
SunTrust
lost
only
in
the

sense
that
they
failed
explicitly
to
enjoin
publication
of
the
work.
Based
on
the
findings
of
both

the
district
court
and
the
appeals
court,
Houghton
Mifflin
paid
a
substantial
settlement

reflecting
compensation,
which
could
“adequately
be
remedied
through
an
award
of
monetary

damages.”



Ty,
Inc.,
v.
Publications
International
Ltd.

Ty,
Inc.,
v.
Publications
International
Ltd.
(292
F.3d
512
[7th
Cir.
2002])
concerned
a
defendant

who
published
a
collector's
guide
for
Beanie
Baby
stuffed
animals.
The
Beanie
Babies

themselves
were
manufactured
and
distributed
by
Ty
Inc.
which
owned
sculptural
copyrights

on
the
products.


 

The
defendant
marketed
a
variety
of
Beanie
Babies
books
ranging
from
ones
aimed
at
children,

such
as
picture
books
with
some
accompanying
childish
text,
to
devoted‐collector
guidebooks

containing
a
wealth
of
information
useful
for
buying,
selling,
or
otherwise
dealing
with

aftermarket
Beanie
Baby
items.
Ty
Inc.
claimed
that
the
defendant
infringed
on
its
copyrights

by
copying
too
much
of
their
works
to
create
the
guide.



 

Finding
a
copyright
infringement
based
on
the
creation
of
derivative
works,
the
district
court

granted
summary
judgment
against
the
defendant.
It
dismissed
a
fair‐use
defense,
as
each

book
contained
a
set
of
color
photographs
of
all
of
the
Beanie
Babies
then
produced.


 

 54

The
appellate
court,
however,
disagreed.
It
ruled
that
while
the
photographs
themselves
should

be
considered
derivative
works,
they
had
become
imbedded
with
the
text
in
a
variety
of
books.

Likening
the
collectors’
guide
to
a
book
review,
the
court
did
not
find
it
by
itself
to
be
a

derivative
work:
“Both
the
book
review
and
the
collectors'
guide
are
critical
and
evaluative
as

well
as
purely
informational;
and
ownership
of
a
copyright
does
not
confer
a
legal
right
to

control
public
evaluation
of
the
copyrighted
work.”
In
coming
to
this
conclusion,
the
court

noted
that
Ty
already
licensed
the
publication
of
other
collectors'
guides
by
reserving
the
“right

to
veto
any
text
in
the
publishers'
guides.”



 

Accordingly,
it
is
clear
that
although
Publications
International
Ltd.
made
a
complete
copy
of

the
Beanie
Baby
collection,
it
was
not
per
se
an
unfair
use,
and
that
in
order
to
compete
in
the

marketplace
for
collectors'
guides
it
had
to
be
comprehensive.


 

This
case
is
relevant
for
photomontage
because
it
illustrates
that
substantial
use
of
a

copyrighted
use
may
also
be
fair.
When
making
references
to
visual
works
it
is
difficult
not
to

use
large
and
substantial
parts
of
the
original.
Furthermore,
this
case
counters
the
copyright

owner’s
argument
that
an
unlicensed
photomontage
harms
its
potential
market.



The
Digital
Millennium
Copyright
Act
and
Its
Impact
on
Fair
Use

An
important
consideration
in
evaluating
a
fair‐use
defense
is
the
DMCA,
which
Congress

passed
in
1998
in
response
to
“concerns
of
Copyright
owners
that
their
works
would
be
[…]

pirated
in
the
networked
digital
world”
(Electronic
Frontier
Foundation
n.p.).



 

While
the
enforcement
of
copyright
law
traditionally
focused
on
such
commercially
motivated

copyright
violations
as
the
mass
production
of
counterfeit
CDs,
the
DMCA
facilitates
the

prosecution
of
individual
perpetrators.
Specifically,
it
authorizes
technologies
which
monitor

the
replication
and
distribution
of
copyrighted
material,
enabling
copyright
owners
to
identify

the
unlicensed
consumption
of
music,
movies,
pictures,
and
software
programs.
This
also

applies
to
photomonteurs
who
use
pictures
containing
embedded
watermarks
and
signatures.

 55

(Lessig
161)


 

So
far,
the
DMCA
has
mainly
been
invoked
by
the
music
industry,
in
which
most
of
the

copyright
owners
are
represented
by
the
Recording
Industry
Association
of
America
(RIAA).
In

the
past,
the
RIAA
primarily
ensured
that
radio
stations
paid
appropriate
royalties
for
broadcast

musical
pieces
and
that
copies
of
music
recordings
for
sale
were
appropriately
licensed.
More

recently,
and
particularly
after
the
implementation
of
the
DMCA,
the
RIAA
has
focused
its

attention
on
the
users
and
developers
of
such
peer‐to‐peer
file‐sharing
systems
as
Napster
and

Kazaa,
which
allow
digital
files
to
be
swapped
directly
between
users'
computers
without

having
to
be
stored
first
on
an
intermediate
server
(Bleeping
Computer
n.p.).


 

In
terms
of
targeting
the
users
of
such
systems,
the
RIAA
strategy
has
been
relatively
simple.
It

alleges
copyright
infringement
of
each
musical
title
and
claims
the
statutory
damage
fee
for

each
occurrence.
Even
with
a
modest
musical
catalog
of,
for
example,
100
titles,
a
suit
would

amount,
at
$150.000
per
title,
to
a
claim
$15,000,000
in
damages.
Lessig
estimated
the
cost
of

defending
such
claims
to
be
approximately
$250,000
(51).
Keeping
litigation
costs
in
mind,
the

RIAA
sues
but
offers
a
settlement
for
whatever
the
defendant
has
in
her
or
his
savings
account.

“In
September
2003,
the
RIAA
sued
261
individuals
–
including
a
12
year
old
girl
living
in
public

housing
[…]
who
paid
her
life
savings
of
$2000
to
settle
the
case”
(Lessig
200).


 

Photomonteurs
may
also
run
the
risk
of
being
subject
to
statutory
damages,
for
example
by

using
images
from
the
Corbis
database.
However,
“if
the
infringer
proves
that
it
was
not
aware

and
had
no
reason
to
believe
its
acts
constituted
copyright
infringement,
the
court
can
award

statutory
damages
as
low
as
$200”.
Furthermore,
the
court
may
“refuse
statutory
damages
if

an
infringer
had
a
reasonable
belief
that
the
use
made
was
a
fair
use
[…]
but
only
if
the
infringer

was
an
employee
of
a
nonprofit
institution
such
as
a
school
or
a
library”
(McCarthy
414).


 

Beyond
devices
that
monitor
unauthorized
use
of
copyrighted
material,
the
DMCA
also
targets

behavior
that
circumvents
copyright
encryption.
Encryption
can
be
used
for
a
variety
of

 56

purposes,
such
as
to
prevent
users
from
copying
DVDs
onto
their
computer
hard
drives.

Software
which
circumvents
such
encryption
exists
in
overabundance.
However,
the
DMCA

prohibits
“a
technological
measure
that
effectively
controls
access”
to
a
copyrighted
work.
In

effect,
the
law
makes
it
illegal
to
defeat
the
access
controls
in
place
on
DVDs,
although
its
end

use
may
fall
under
copyright
law’s
fair‐use
exception.
In
Universal
City
Studios,
Inc.
v.
Reimerdes

(111
F.
Supp.
2d
294
[S.D.N.Y.
2000])
the
court
held
that
the
DeCCS
software,
enabling

decryption
of
DVDs
and
copying
them
onto
PCs,
was
in
violation
of
the
DMCA.




 

Regardless
of
such
potential
fair
uses
arising
from
its
end
use
as
creating
a
film
montage
within

the
realm
of
public
commentary,
the
act
of
circumvention
makes
all
users
violators
of
the

DMCA.
“The
question
is
not
whether
use
of
the
copyrighted
material
is
a
copyright
violation,

[but]
whether
copyright
protection
was
circumvented”
(Lessig
158).
Accordingly,
if

photomonteurs
wish
to
use
images
from
DVDs
or
internet
databases,
they
should
first
consider

whether
doing
so
circumvents
encryption
technologies
prior
to
assessing
any
possible
fair‐use

measures.



Solution:
Compulsory
Licensing

Unfortunately,
the
provisions
for
fair
use
sometimes
only
mean
the
right
to
hire
an
attorney
to

defend
freedom
of
expression.
In
this
regard,
when
faced
with
unwanted
use
of
their

intellectual
property,
corporations
have
a
significant
advantage
over
individuals
due
to
the

significant
time
and
resources
associated
with
this
type
of
litigation.
Even
a
successful
fair‐use

defense
provides
no
guarantee
of
recovering
the
significant
litigation
costs.
Accordingly,
a
mere

possibility
of
a
copyright
infringement
claim
undoubtedly
sends
a
chilling
message
and
may
be

sufficient
for
a
new
generation
of
digital
authors
to
modify,
or
entirely
omit,
particular
forms
of

expression.


 

The
sampling
of
music
recordings
is
in
many
ways
similar
to
the
techniques
applied
in

photomontage.
Rather
than
addressing
a
traditional
distinction
between
an
idea
or
expression

and
applicable
fair‐use
provisions,
answers
could
be
found
in
commercial
and
compulsory

 57

licensing
schemes.


 

The
system
of
compulsory
licensing
is
an
exception
to
traditional
copyright,
as
it
“forces
an

intellectual
property
owner
to
allow
others
to
use
that
property
at
a
fee
set
by
the

government”
(McCarthy
66).
Under
this
model,
use
of
another’s
intellectual
property
becomes

legal
simply
by
notifying
that
the
use
has
occurred
and
that
revenue
will
be
forthcoming,
as

stipulated
by
current
compulsory
licensing
rates.




 

Compulsory
licensing
practices
are
in
place
for
certain
works
protected
by
copyright
law,
such

as
for
musical
works
by
public
broadcasting
(McCarthy,
68).
For
the
music
industry
in
particular,

the
Copyright
Act’s
paragraph115
states
that
once
a
composer
has
authorized
and
published
a

recording
of
a
composition,
other
musicians
and
record
companies
may
create
so‐called
cover

versions.



 

Implementing
a
similar
compulsory
licensing
system
for
the
visual
arts
could
create
a
more

effective
and
less
bureaucratic
way
of
distributing
intellectual
property
and
rewarding
original

copyright
holders.
The
system
would
do
away
with
subjective
acts
of
censorship
based
on

personal
likes
or
dislikes
of
the
way
a
new
work
commented
on
the
original.
As
is
case
for

musical
compositions,
once
a
work
is
published
others
could
freely
use,
comment,
and
create

derivative
works
from
it,
while
the
right
of
first
publication
would
remain
an
important

exclusive
right
of
copyright
holders
(Harper
&
Row
v.
Nation
Enterprises
[U.S.S.C.
1985],
471

U.S.
539).


 

The
process
of
determining
whether
something
is
commercial
or
non‐profit
could
be
discarded

altogether.
The
use
of
any
visual
work
could
initially
be
free
of
charge
and
subject
to
a
royalty‐
sharing
agreement
in
regard
to
future
revenue.
The
larger
the
portion
used
from
an
original

work
to
create
a
secondary
expression,
the
higher
the
royalty
rate
would
be.


 

Such
a
commercialized
system
would
partly
run
contrary
to
the
noble
motivations
of
the

 58

copyright
law’s
fair
use
provisions
for
purposes
of
criticism,
comment,
news
reporting,

teaching,
scholarship,
or
research.
However,
as
opposed
to
the
current
environment,
it
would

create
a
bright‐line
rule
for
the
creators
of
photomontage.



 59

Conclusion

The
first
section
of
this
thesis
showed
how
the
Dada
movement
introduced
photomontage
as
a

way
to
address
the
social
issues
of
its
time.
The
movement
was
a
reaction
against
the

establishment
in
general,
and
used
photomontage
as
a
way
to
paraphrase
and
comment
on

current
events
and
popular
culture.
At
the
time,
literal
expressions
were
frequently
censored

and
this
new
artistic
technique
was
initially
used
to
circumvent
censorship
laws.


 

The
second
section
of
this
thesis
traced
the
roots
of
copyright
laws
back
to
censorship
practices

in
sixteenth‐century
England,
where
the
authorities
used
them
as
a
tool
to
control
the
printing

of
books
during
an
era
of
religious
struggles.
As
Enlightenment
ideals
progressed,
the
laws
were

reformed
to
promote
the
effective
distribution
of
knowledge.
In
the
US,
these
ideals
live
on

today,
and
the
Constitution
defines
the
guiding
principle
of
intellectual
property
law
to
be
the

promotion
of
science
and
the
useful
arts.


 

As
Western
civilization
has
evolved
from
an
industrial
to
an
information
society,
the
value
of

intellectual
property
assets
has
increased,
creating
an
inherent
conflict
between
the
stated

purpose
and
private
property
rights.
The
right
to
license
secondary
use
of
images
is,
for

example,
an
important
source
of
revenue
for
photographers.
Although
the
unsolicited
use
of

images
compromises
photographs’
market
value,
the
possibility
of
a
copyright
infringement

claim
may
serve
as
a
significant
deterrent
against
the
use
of
photomontage
as
an
artistic

technique.


 

The
doctrine
of
fair
use
tries
to
balance
the
interests
of
private
property
and
freedom
of

expression.
As
this
thesis
has
explained,
it
allows
for
a
certain
amount
of
paraphrasing
and

quoting
for
purposes
of
public
commentary
and
criticism.
However,
while
the
doctrine
is

accepted
as
a
matter
of
public
policy
for
literary
works,
visual
paraphrasing
is
not
treated
with

the
same
legal
clarity.



 

The
difference
between
the
relative
clarity
provided
for
the
quoting
and
paraphrasing
of

 60

literary
works
and
the
contrasting
ambiguity
for
visual
works
is
due
to
the
structure
of
the
law

and
the
nature
of
the
expressions
themselves.
Copyright
law
was
originally
written
specifically

with
literary
works
in
mind,
and
its
legal
framework
and
analysis
still
reflects
this
heritage.

Whereas
people
may
use
quotes
and
paraphrasing
to
reference
literary
works,
the
same

practice
can,
as
this
thesis
has
shown,
lead
to
complicated
legal
analysis
when
visual
works
are

involved.
At
its
core,
this
is
because
it
is
difficult
to
make
references
to
original
visual
works

without
including
large
amounts
of
them.



 

Despite
the
longstanding
importance
of
photomontage
as
a
form
of
public
commentary
and

criticism,
no
intuitive
rule
exists
for
determining
whether
and
how
such
works
may
meet
the

applicable
requirements
of
copyright
law.
This
creates
a
problem
for
society
as
a
whole,

because
faced
with
the
possible
consequences
of
intellectual
property
litigation,
certain
ideas

are
simply
not
expressed.


 

The
freedom
of
expression
and
public
discourse
is
clearly
a
more
important
and
basic
right
than

the
benefits
allowed
to
private
intellectual‐property
owners.
Rather
than
being
concerned
with

the
possible
legal
implications
of
their
work,
artists
should
be
able
to
question
works
from

popular
culture
as
well
as
create
derivative
works
from
them.



 

In
the
digital
millennium
we
will
undoubtedly
see
more
reforms
of
copyright
law.
The
lack
of

consistency
in
the
fair‐use
doctrine
and
copyright
law
in
general
represents
a
significant

obstacle
for
many
other
than
contemporary
photomonteurs.
It
is
a
daunting
task
for
a
single

individual
to
determine
whether
a
particular
work
is
under
copyright
protection
and,
assuming

it
is,
to
clear
the
rights
to
it
by
locating
the
owner.
Also,
the
fair‐use
analysis
is
an
extremely

complicated
exercise
for
legal
professionals,
let
alone
for
ordinary
people
who
wish
to
share

and
communicate
with
family
and
friends
by
means
of
modern
digital
technology.
The
penalties

for
the
perceived
wrongs,
as
stipulated
by
copyright
law
and
the
DMCA,
are
disproportionate.


 

A
compulsory
licensing
scheme
for
the
visual
arts
could
facilitate
a
temporary
solution
to

 61

creating
a
clear,
legal,
and
efficient
way
for
artists
to
use
previously
published
works.
By

recording
the
use
of
a
previously
published
work,
a
person
would
be
able
to
predict
a

reasonable
royalty
rate
in
the
event
of
commercial
success.
Such
a
system
would
create
a
clear

line
for
those
who
wish
to
incorporate
the
works
of
others
and
eliminate
the
current
self‐
censorship
resulting
from
complex
copyright
considerations.


 

The
answer
to
the
question
posed
at
the
outset
of
this
thesis
of
whether
the
use
of
the

Newsweek
9/11
coverage
in
the
Philadelphia
subway
photomontage
could
have
triggered
legal

action
had
it
been
mass
produced
is
absolutely
yes.
According
to
Nimmer's
definition,
it
clearly

violated
the
exclusive
right
to
create
derivative
works
from
the
photographs.
As
to
whether
the

work
would
fall
under
the
exception
of
the
fair‐use
doctrine,
the
answer
is
probably
also
yes.

The
practical
question,
however,
is
whether
an
artist
would
take
the
economic
risk
of
defending

this
position
in
court.



 

One
may
simply
pose
the
rhetorical
question
of
whether
it
would
it
be
possible
to
create
the

photomontage
and
commentary
without
making
use
of
the
Newsweek
9/11
coverage,
such
as

by
first
recreating
the
event
and
then
visiting
Bin
Laden,
George
W.
Bush,
Dick
Cheney,
and

Donald
Rumsfeld
and
asking
them
to
pose
in
similar
way.



 

It
remains
to
be
seen
whether
any
new
guidelines
will
serve
to
promote
the
progress
clause
and

persuade
creative
talents
to
share
their
works
with
the
public.
One
should
in
any
event
note

that
the
“constant
emphasis
on
protection
of
exclusive
rights
[…]
often
obscures
the
basic

principle
of
U.S.
law
that
the
principle
of
free
copying
of
things
in
the
public
domain
is
the

general
rule”
and
that
it
is
intellectual
property
that
should
be
the
exception
(McCarthy
354).



 62

Works
Cited:

Adams,
George
Burton.
Constitutional
History
of
England.
New
York:
Henry
Holt
&
Co.,
1921

Ades,
Dawn.

Photomontage.

New
York:
Thames
and
Hudson,
Inc.,
1986

AIZ
12,
#36,
14
Sept.
1933,
1933.

Barrett,
Terry.

Criticizing
Photographs.
Mountain
View
California,
London,
Toronto:
Mayfield

Publishing
Company,
1990


Bleeping
Computer.
Peer‐to‐peer.
2008.
The
Computer
Glossary.
25
March
2008.

http://www.bleepingcomputer.com/glossary/definition125.html

Craig,
Gordon
A.
The
Germans.
New
York:
Putnam,
1982

Crockett,
Dennis.
German
Post‐expressionism:
The
Art
of
the
Great
Disorder,
1918‐1924.

University
Park,
PA
:
Penn
State
Press,
1999.

DeFoore,
Jay.
“Photo
Manipulation
Highlights
Internal
Feud
at
SI.”
Photo
District
News
2
Oct.

2003:
20‐22.

DeFoore,
Jay.
Photographers
Seek
Accountability
For
Infringed
Kerry
Photos.
2003.
Photo

District
News.
1
April
2005

http://pdnonline.com/photodistrictnews/search/search_display.jsp?vnu_content_id=20
96115

Egbert,
Donald
D.
Social
radicalism
and
the
arts,
Western
Europe.
New
York:
Knopf,
1970

Elger,
Dietmar
and
Uta
Grosenick.
Dadaism.
Koln:
Taschen
2004.

Fahimian,
Giselle.
“How
the
IP
Guerrillas
Won:
®TMark,
Adbusters,
Negativland,
and
the

‘Bullying
Back’
of
Creative
Freedom
and
Social
Commentary.”
Stanford
Technology
Law

Review.
2004.
Stanford
University.
3
February
2007.

http://stlr.stanford.edu/STLR/Articles/04_STLR_1.

Graver,
David.
The
Aesthetics
of
Disturbance:
Anti‐Art
in
Avant‐Garde
Drama.
Ann
Arbor,
MI:

University
of
Michigan
Press,
1995.

Ginsburg,
Jane
C.,
Jessica
Litman,
and
Mary
L.
Kevlin.
Trademark
&
Unfair
Competition
Law:

Cases
&
Materials.
Charlottesville,
Virginia:
The
Michie
Company,
2001.



Gorman,
Robert
A.
and
Jane
C.
Ginsburg.
Copyright:
Cases
&
Materials;
Charlottesville,
Virginia:

The
Michie
Company,
2001.

 63

Harrison,
Charles
and
Paul
Wood.
Art
in
Theory,
1900‐2000:
An
Anthology
of
Changing
Ideas.

Malden,
Mass:
Blackwell
Publishing,
2003.

Hill,
Jonathan.
Actions
of
Architecture:
Architects
and
Creative
Users.
London:
Routledge,
2003.

Hughes,
Robert.
The
Shock
of
the
New.
New
York:
Random
House,
1981.

Klein,
Naomi.
No
Logo.
London:
Flamingo,
2001.

Lavin,
Maud.
“Heartfield
in
Context”
Art
in
America
Feb.
1965:
85‐91

Marien,

Mary
W.
Photography:
A
Cultural
History.
London:
Laurence
King
Publishing,
2006.

Marinucci,
Carla.
“Doctored
Kerry
photo
brings
anger,
threat
of
suit.”
San
Francisco
Chronicle.

20
Feb.
2004.
Hearst
Communications
Inc.
21
March
2004.
http://sfgate.com/cgi‐
bin/article.cgi?file=/c/a/2004/02/20/MNG4S54RGO1.DTL.

McCarron,
Carolyn
“America
The
Greedy.”
Communication
Arts
Magazine
Jan.‐Feb.
2004:
21‐
28.



McCarthy,

J.T.
Desk
Encyclopedia
of
Intellectual
Property,
2nd
ed.
Washington
DC:
BNA
Books,

1995.

Norman,
Jeremy
M.
From
Gutenberg
to
the
Internet.
Novato,
CA:
Norman
Publishing,
2005.

Richter,
Hans.
Dada
Art
and
Anti‐Art.
New
York:
Thames
and
Hudson,
Inc.,
1965.

―――
Dada
Art
and
Anti‐Art.
New
York:
Thames
and
Hudson,
Inc.,
1997.

Rosenblum,
Naomi.
A
World
History
of
Photography,
3rd
ed.
New
York:
Abbeville
Press,
1997.


The
Samuelson
Law,
Technology
&
Public
Policy
Clinic,
et
al.
Unintended
Consequences:
Seven

Years
under
the
DMCA.
April
2006.

Electronic
Frontier
Foundation.
7
January
2007.

http://www.eff.org/wp/unintended‐consequences‐seven‐years‐under‐dmca.

Sayre,
Henry
M.
A
World
of
Art.
Prentice
Hall,
1999.

Sheffield,
Gary.
“The
Origin
of
World
War
One.”
World
Wars:
World
War
One.
3
January
2002.

BBC
Home.
17
May
2005.

http://www.bbc.co.uk/history/worldwars/wwone/origins_01.shtml.

Takeoverworld.
Bush
+
Clinton
Families.
2008.
Takeoverworld.
29
June
2008.

http://www.takeoverworld.info/clinton‐bush.html.

TechTarget.
Information
Society.
2008.
Whatis.com.
1
February
2008.

http://whatis.techtarget.com/definition/0,,sid9_gci213588,00.html.

 64

Wescher,
Herta.

Die
Geschichte
der
Collage.
Koln:
Verlag
M.
DuMont
Schauberg,
1974.