Can a painter/collage artist use copyrighted photographs in his works without permission of the photographer? In a closely-watched case, the Court of Appeals for the Second Circuit said in April that the answer is mostly a “yes.”
The case is important because of the desire and need in culture for artists to refer to other works and artists in order to express themselves — and to connect with the cultural references all around us in popular culture. It just so happens that much of that popular culture is protected by copyright (think of Mickey Mouse, Ansel Adams’ works, the movie Children of Paradise, The Great Gatsby, and so so much more). Seeking permission is time-consuming, sometimes expensive, and runs the risk of being turned down by the rights holder. Invoking the fair use defense is an appealing option – if it’s legal.