The Infringement of Free Art

Abstract

The fair use test can hinge on market effects: Did the unauthorized copy take sales away from the original artwork? After all, copyright law assumes that a viable market must exist for a work to deserve protection. The issue is that technology has unsettled the economics of creating original art by empowering people to make literature, visual art, music, and other forms of content in unlimited quantities and at zero-prices. This has quietly inspired a few courts to expand the scope of exclusive rights to include non-price interests like one’s integrity or reputation (did the copy harm the artist’s reputation?) because zero-price art would ostensibly lack a market. While incorporating an artist’s integrity or reputation into the analysis might help copyright to promote what actually motivates contemporary artists, it would also enable artists to squelch criticisms, unflattering portrayals, and parodies of their works, frustrating copyright’s goal of disseminating new and meaningful expressions.

This Essay explores how copyright should balance fair use and exclusive rights in the era of “free art” by interviewing scores of artists and authors about why they give their works away and what they expect. It finds that producers of zero-price content have devised a unique rule, which has no basis in copyright law: Third parties may copy and use another’s zero-price art so long as it remains free. Subjects expressed anxiety that a “soulless corporation” could use their art in a product or advertising campaign, creating the guise of a partnership. One artist insisted that putting a price tag on art transforms it into “merchandise.” While copyright assumes that zero-price content generally lacks a protectable market, the interviews show how copying can discourage artists from creating zero-price content or widely sharing it with global audiences. This Essay asserts that the fair use test must modernize, akin to other bodies of law, in recognizing the importance of zero-price markets. After all, the rise of free art has revolutionized the creative process by fostering new mediums and expressions as well as perspectives of those who were historically excluded from the arts—copyright’s precise goal.

Keywords: Art, technology, fair use, infringement, digital, zero-price, free, innovation, creativity