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n6 Under the theory that creators of derivative works generally must receive permission—and pay a licensing fee—in order to use the original work, some have asserted that parody deserves protection precisely because makers of an original work will be unwilling to license derivative uses that damage the public reputation of originals through negative criticism. Because the social good is served by increasing the supply of criticism—and thus, potentially, of truth—creators of original works cannot be given the power to block the dissemination of critical derivative works. See, e.g., Richard Posner, When is Parody Fair Use?, 21 J. Leg. Stud. 67, 71, 73-75 (1992).
Apart from criticizing commercialism, the Kostabi Dalis might also be reasonably perceived as speaking directly to the work of Salvador Dali, perhaps criticizing what the artist perceived to be the emptiness of Dali's later works. n7.The fair use doctrine, however, is broad enough to protect even those commentaries that are not so damaging that the original author would refuse to license them for a fee. A parodist need not demonstrate that the copyright owner would prohibit the use in order to qualify the copy as fair use under Campbell.
n7 There are numerous parallels between Mark Kostabi and Salvador Dali. Just as Dali was, Kostabi is in some senses an outcast within the art world for his flamboyance, his unabashed capitalism, his egocentric statements, and his production line artistry. As with Dali, it is not clear how much of this is for show. Dali's early dada and surrealist work—graphic figures in a perspective landscape—were strikingly similar to the early works of Georgio de Chirico, whose faceless humanoid forms are reprised in the figurative works of Mark Kostabi.
B. Second Factor.The second factor concerns the merits of the original work. The merits of original Dali paintings are uncontested by the defendant, but the defendant asserts that the signature is not a work. As such, the reproduced signatures are not infringements of Dali's copyrighted works, but are protected commentary on the artist's economic processes, both before and after
his death. As the original Dali signatures on blank canvases were not "works" per se and were never presented, marketed, or sold as such, defendant further asserts that he is not parodying the artist's work, and the Foundation thus has no copyright interest to protect. Defendant further asserts that he made a point to reproduce signatures from available samples of the blank canvases signed by Dali—all with lithographs affixed after the fact and all certified as authentic signatures. Were the foundation to claim the signature was a "work," it is unclear whether it would claim any and all of the many versions of Dali's signature as opposed to the version of his signature that is marketed, a relatively legible version from earlier in his career. This is not the version reproduced on the Kostabi Dalis. C. Third Factor.
The third-factor inquiry in the parody context concerns "what else the parodist did besides go to the heart of the original." Id. at 589. The Foundation has taken pains to implant a heart in the Dali "works" which are otherwise his signature on a blank canvas. The Foundation asserts that Dali's signature was not merely a mark of authentication for works, but a distinctive feature which attaches the ego of the artist to the product. Thus, the signature alone was never intended to be a work of art, but was always an artistic element of the works. Reproductions of his work were printed on the signed canvases, thus completing the work. Salvador Dali's personality, and by extension his signature, was so much a part of his work and public perception of his work, that recreation of his signature from a work goes as much to the heart of the work as recreation of any other element.
The problem with this portrayal is that the artist is not here to support this claim, which is instead supported by the Foundation's assertions alone. Defendant does not dispute that the Dali name and some versions of his signature are widely recognized, but it is equally true that his painting style is widely recognized, and it is the paintings and their reproductions which have sold consistently, rather than the signed white canvases. The plaintiffs assert that Dali's signature is the entirety of work in the Kostabi Dalis, while the defendant asserts that it is a single element in a conceptual work. He adds that his use of the signature to make his point is made all the more appropriate by Dali's famously and perhaps apocryphally quoted remark that a fake Dali "is a picture for which I have not been paid." The defendant asserts that the signature was not an artistic