[MASS12] Fair Use: Transformative Works

Challenge: Find two examples of remixes that, in your opinion, constitute transformative works under the “fair use” doctrine of US copyright law – i.e. that appropriate already existing works and transform them into an entirely new work, with a meaning that is counter to, or sufficiently different from, the original.  Explain what you think the creator of the original might claim if they were trying to have the work removed, as well as what you think the counter-argument for the remixer might be.  In other words, WHY it constitutes fair use.  Please provide links to the remixes, or embed them in the post if possible.  Your essay for each work should be no fewer than 250 words (i.e. no fewer than 500 words for the entire post.)

1. Actor John Malkovich and photographer Sandro Miller recreate iconic portraits.

In 2014, Malkovich and Miller teamed up to recreate iconic portraits in our history, including recreations of the 1936 “Migrant Mother” originally shot by photographer Dorothea Lange and the 1951 Albert Einstein photograph shot by Arthur Sasse.

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They shot over twenty photographs for the “Malkovich, Malkovich, Malkovich: Homage to Photographic Masters” exhibition that took place in November at the Catherine Edelman Gallery in Chicago.

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I believe that this constitutes as transformative work under the fair use doctrine of US copyright law, which states that a transformative work is an appropriate use of already existing works that transforms them into an entirely new work, with a meaning that is counter to, or sufficiently different from, the original. With that explanation, I would say that this is a transformative work because I believe that the photographs are in a way creating an ode to the original already existing works. It gives them an entire new meaning to the works by adding some humor and providing a modern take on them, but also respect to what the works mean in our history.

I think the creator of the original might claim that the photographs are copying their work detail by detail if they were trying to have the work removed. And if Malkovich and Miller were to counter argue the creators, they would state that the work that they did is their own take on the original works. They used them as inspiration for a exhibition that displays these works in a modern way. It is known that artists build on the works of others and, as the saying says, imitation is a form of flattery. I believe that for these reasons, this transformative work is constituted by the fair use doctrine.

*note: only wrote about one transformative work