This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
Yet another "appropriation artist" has come under fire for alleged copyright infringement. In 2007, Sarah Morris – an internationally recognized painter and filmmaker – debuted her "Origami Series," which consists of almost 40 paintings. She has publicly stated that they are based on origami diagrams, or "crease patterns," which represent the folds needed to create three-dimensional origami sculptures.
Recently, six origami artists filed suit against Sarah Morris in the Northern District of California for copyright infringement. The complaint identifies 24 of Morris's paintings that are allegedly "strikingly similar" to plaintiffs' crease patterns.
Are plaintiffs' crease patterns entitled to copyright protection in the first place? Copyright does not protect ideas. Nor does it protect the functional elements of a work. However, copyright does protect a work's purely expressive or creative elements. Morris will likely argue that plaintiffs' crease patterns are purely functional instructions for creating origami sculptures. In response, plaintiffs likely will argue that the crease patterns incorporate features that are capable of existing separately as works of art, which Morris copied in creating her "Origami Series."
Assuming plaintiffs' crease patterns are entitled to copyright protection, the key issue will be – as it was in the recent Cariou v. Prince case — whether Morris created infringing derivative works, or whether she crafted "transformative" works that are protected by Section 107's fair use doctrine. Morris may not suffer the same fate as Richard Prince because of several key differences between the cases.
First, Morris may be more successful than Prince in explaining the transformative "meaning" behind her work. In Cariou, the court held that Section 107 "imposes a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works." Because the court found that Prince "didn't really have a message" and did not attempt to comment on any aspects of Cariou's original photographs, it found "vanishingly little, if any, transformative element" in Prince's work. It would advantage Morris to provide the court with a detailed explanation of the message behind her work, and we already have a preview of what she might say. According to a press release for the "Origami Series" exhibition, "The paintings depict an unfolded pattern of creases . . . Morris is primarily interested in how origami in popular culture . . . is often used to signify an impending event."
Second, photographer Patrick Cariou had evidence that Prince's work negatively impacted the commercial value of Cariou's photographs. Cariou had been negotiating with an art gallery for an exhibition of his photographs when the Gagosian Gallery began showing Prince's works that appropriated Cariou's photographs. The gallery decided not to show Cariou's photographs, because it "did not want to show work which had been 'done already' at the nearby Gagosian Gallery." The six origami artists may have difficulty demonstrating that Morris's paintings harm the market for their work. Although plaintiffs have exhibited and sold their crease patterns, Morris will likely argue that their value is not as standalone art, but as a blueprint for making origami sculptures.
Will this lawsuit be a further blow to "appropriation" art? We will keep you updated as this case unfolds.
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