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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

What might the Supreme Court have to say about my appropriation of O’Keefe’s image to create this comic strip? I remain deeply uncertain, but another recent decision could matter.

Google v Oracle is nothing like the artistic cases I discussed earlier (including Warhol’s Prince series and Fairey’s HOPE), yet the third factor for evaluating fair use, amount and substantiality of the portion used,” seems key. Here’s the passage from the decision that seems to apply:

“If one considers the declaring code in isolation, the quantitative amount of what Google copied was large…. The question here is whether those 11,500 lines of code should be viewed in isolation or as one part of the considerably greater whole. We have said that even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the “‘heart’” of the original work’s creative expression…. If a defendant had copied one sentence in a novel, that copying may well be insubstantial. But if that single sentence set forth one of the world’s shortest short stories—“When he awoke, the dinosaur was still there.”—the question looks much different, as the copied material constitutes a small part of the novel but the entire short story…. Several features of Google’s copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy….”

That could bode badly for appropriation artists, since in the case of my O’Keefe-appropriated comic, I use all of her painting, not just a portion (and so the common question of whether that portion is its “heart” is moot). Though the original painting in its unaltered form is only the first image of my sequence, like the court’s (surprisingly odd) example of a one-sentence short story, the comic strip uses the image in its entirety.

But then maybe that’s okay? The decision continues:

“The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose… In a sense, the declaring code was the key that it needed to unlock the programmers’ creative energies. And it needed those energies to create and to improve its own innovative Android systems. We consequently believe that this “substantiality” factor weighs in favor of fair use.”

So based on that assessment, could I appeal to the Supreme Court using their new precedent to argue that my comic strip had a valid, and transformative, purpose, and the original O’Keefe image was the key that I needed to unlock my creative energies to create and improve my own innovative artwork?

I have no idea.

[Here are parts one, two, three, four, and five of my previous fair use musings.]

[Update: SCOTUS ruled on May 18, 2023, which I discuss here.]

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