Appropriation Art As Fair Use Under The Copyright Act

by Nossaman LLP

Appropriation art raises special issues of fair use.  An appropriation artist takes the work of another artist and modifies it in some fashion and in the process creates a new work of art.  Andy Warhol's Campbell Soup Can series exemplifies appropriation art.  Is such appropriation copyright infringement or fair  use?  As with many things, it depends.

The United States Court of Appeals, Second Circuit had the opportunity to discuss the limits of appropriation art, fair use and copyright infringement in Cariou v. Prince, 714 F.3d 694 (2d Cir.), cert. denied, ___ U.S. ___, 134 S.Ct. 618, 187 L.Ed.2d 411 (2013) (Cariou).  Recently, the Ninth Circuit also took up these issues in Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013).  This article discusses both cases with an intent on providing guidance to artists and their counsel as to where the wavy lines of fair use are.

Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)
In 2000, the French photographer Patrick Cariou published a book of photographs entitled Yes Rasta.  He took the photographs over a six year period during which time he lived among Rastafarians in Jamaica.  The photographs consist of a variety of human portraits and natural landscapes, reflecting an idyllic life style.  The book measures approximately 9.5" x 12".

In 2007 and 2008, the American artist Richard Prince exhibited in St Barth's 35 photographs in a collage entitled Canal Zone torn out of Yes Rasta and pinned to plywood.  Prince altered the photographs significantly by painting blue lozenges over the subject's eyes and mouth and using portions of some of the images.  In June 2008, Prince purchased three additional copies of Yes Rasta and proceeded to produce thirty additional works in the Canal Zone series, twenty-nine of which incorporated partial or whole images from Yes Rasta.  The amount of each photograph from Yes Rasta that Prince used varied from work to work.  In certain pieces, Prince affixed headshots from Yes Rasta  on to other appropriated images, all of which Prince placed on a canvas that he had painted.  In these pieces, Prince almost entirely obscured Cariou's work.  Prince also created works incorporating Cariou's photographs along with those of other photographers.  Prince's works were substantially larger than the 9.5" x 12" pages of Yes Rasta.  For example, two of Prince's pieces were 72 ¾" x 52 ½" and another was 100 ½" x 104 ½".  Prince's smallest work was 40" x 30".  Photographs from Yes Rasta and Canal Zone are available for viewing on the Internet.

In 2008, Prince exhibited his works in the New York Gagosian Gallery in addition to his original showing in St Barth's.  The gallery also published a catalogue reflecting the pieces in the Canal Zone exhibition.  Cariou learned of Prince's exhibition in December 2008 and shortly thereafter sued Prince for copyright infringement.  Prince defended by asserting that his works are transformative of Cariou's photographs and thus constitute fair use.  On cross motions for summary judgment, the United States District Court ruled in favor of Cariou.  In rejecting Prince's fair use defense, the district court imposed "a requirement that the new work in some way must comment on, relate to the historical context of, or critically refer back to the original works" in order to qualify as fair use.  (Cariou v. Prince, 784 F.Supp.2d 337, 348-49 (S.D.N.Y. 2011).  The court found that "Prince did not intend to comment on Cariou, on his photos, or on aspects of popular culture associates with Cariou or the photos.  (Id. at 349.)  The court ordered broad injunctive relief and directed the defendants (which included Gagosian Gallery and its owner) to "deliver up for impounding, destruction, or other disposition, as [Cariou] determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession." (Id. at 355.)

Upon appeal, following some brief discussion of the purpose of the copyright law, i.e., to promote the Progress of Science, and useful Arts (U.S. Const., AR. I, § 8, cl. 8), the Second Circuit emphasized that the concept of fair use is intended to further this purpose by mediating between "the property rights [that copyright law] establishes in creative works, which must be protected up to a point, and the ability of authors, artists and the rest of us to express them or ourselves by reference to the works of others, which must be protected up to a point.  (Blanch v. Koon, 467 F.3d 244, 250 (2d Cir. 2006).)This concept of fair use is codified in 17 U.S.C. § 107 which lists four non-exclusive factors that must be considered in determining the existence of fair use:

[T] he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.  In determining whether the use made of a work in any particular case is fair use the factors to be considered shall include –
 (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
 (2) the nature of the copyrighted work;
 (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
 (4) the effect of the use upon the potential market for or value of the copyrighted work.
(Italics added.)

Referring to the Supreme Court's opinion in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994) (Campbell) , the Second Circuit emphasized that the fair use determination is an open ended and context-sensitive inquiry.  The statute uses the terms "including" "to indicate the illustrative and not limitative function of the examples given . . . ."  (Id. at 705.)

The first statutory factor, which, according to the Second Circuit, is at the heart of the fair use inquiry, addresses the manner in which the copied work is used.  In this regard, Campbell requires the court to ask:

Whether the new work merely ‘supersedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message [,] . . . in other words, whether and to what extent the new work is transformative. . . . [T]ransformative works lie at the heart of the fair use doctrine's guarantee of breathing space.. . .

(Campbell, 510 US. at 579 [citations and some quotation marks omitted].)

This means that the new work adds value to the original with the original work being used as raw material which is transformed in the creation of the new work with a new aesthetic, insight or understanding.  (Castle Rock Entertainment, Inc. v. Carol Publishing Group., Inc., 150 F.3d 132, 142 (2d Cir. 1998) (Castle Rock) .)

Reviewing the district court decision through the prism Campbell and Castle Rock, the Second Circuit faulted the court for imposing "a requirement that, to qualify for a fair use defense, a secondary use must ‘comment on, relate to the historical context of, or critically refer back to the original works.'"  (Cariou, 714 F.3d at 706.)  In rejecting this requirement, the court of appeals stated:

The law imposes no such requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. . . . .  Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with "new expression, meaning, or message." . . .

(Id [citations omitted].)

Specifically addressing Prince's works, the court found that twenty-five of the thirty Prince pieces at issue "manifest an entirely different aesthetic from Cariou's photographs."  (Id.)  Cariou's photographs are serene, depicting the beauty of Rastafarians in their physical environment whereas Prince's works are crude, jarring, hectic and provocative.  The court noted that Cariou's works were black and white prints small in size while the works of Prince contained color, distorted forms and were huge in size when compared with Cariou's photographs.  "Prince's composition, presentation, scale, color, palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince's work."  (Id.)

At his deposition in the district court proceedings, Prince had testified that by his work, he "do[es]n't really have a message" and that he was not trying to create anything with a new meaning or a new message."  (Cariou v. Prince, 784 F.Supp.2d at 349.)  The district court jumped on this statement to conclude that his works were not transformative.  The Second Circuit rejected this approach.  The fact that Prince did not seek to assert in his deposition that his works were transformative was not dispositive.  "What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.  Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so."  (Cariou, 714 F.3d at 707; italics added.)  In other words, the transformative nature of a piece should be determined by how an audience perceives the work.  Looking at the works side-by-side, the court concluded that Prince's pieces "have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Carious's."  (Id. at 707-08.)

Noting that the first fair use factor also requires the court to consider the commercial or nonprofit purpose to the allegedly infringing work, the court nonetheless stated that intended purpose must be applied with caution.  Commercial uses are not presumptively unfair.  The more transformative the new work, the less significance other factors become.  Given the transformative nature of Prince's work, the Second Circuit placed little significance on the commercial purpose of the work.  (Id. at 708.)

The second statutory fair use factor, i.e., the nature of the copyrighted work, requires recognition that certain works are nearer to the core of intended copyright protection than others, "with the consequence that fair use is more difficult to establish when the former works are copies.  (Campbell, 510 U.S. at 586.)  Greater leeway for fair use is allowed works that are factual or information.  Moreover, fair use involving unpublished works is narrower than for published works.  (Cariou, 714 F.3d at 710.)  Noting that Cariou's works are creative, this weighed against Prince's fair use claim.  The court, however, found that the overarching transformative nature of Prince's work trumped the fact that Cariou's works are creative.

The third fair use factor considers "the amount and substantiality of the portion used in relation to the copyrighted work as a whole."  In assessing this factor, the court will "consider the proportion of the original work used, and not how much of the secondary work comprises the original."  (Id.)  "We ask whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying."  (Id. [citation and quotation marks omitted].)  Here, however, the Second Circuit., eschewed a rigorous analysis; and by virtual ipse dixit, simply stated "Prince used key portions of certain of Cariou's photographs.  In doing that, however, we determine that in twenty-five of his artworks, Prince transformed those photographs into something new and different and, as a result, this factor weighs heavily in Prince's favor."  (Id.)

The last of the four statutory fair use factors considers the effect of the secondary use upon the potential market for the value of the copyrighted work.  In looking at this factor the court's "concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work."  (Id. at 708 [citations omitted.].)  "The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop."  (Campbell, 510 U.S. at 592.)  Thus, a court will look at the audiences for the allegedly infringing work and the original work to determine if they are the same.  If so, this factor would favor the plaintiff.  (Id.)  "The more transformative the secondary use, the less likelihood that the secondary use substitutes for the original."  (Castle Rock, 150 F.3d at 245.)

The Second Circuit went on to conclude that the market for Cariou's work is different than that for Prince's work.  Certain of the Canal Zone works of Prince have sold for two million or more dollars.  His audience consists of wealthy individuals and famous individuals.  In contrast, Cariou had not actively marketed his work or sold work for significant sums.  There was no evidence in the trial court record that anyone would not purchase Cariou's work (or derivative works) because of Prince's works occupying space in the market.  "This fair use factor therefore weighs in Prince's favor."  (Cariou, 714 F.3d at 709.)

There were thirty Prince works at issue in the litigation.  The court of appeals found that twenty-five constituted fair use.  As to the remaining five, the court concluded that they presented a closer question of fair use.  These works "do not sufficiently differ from the photographs of Cariou's that they incorporated for us confidently to make a determination about their transformative nature as a matter of law."  (Id. at 710-11.)  The court thus remanded consideration of these works to the district court "to determine, in the first instance, whether [the] relatively minimal alterations render [the five works] fair uses . . . or whether any [of the works] impermissibly infringes on Cariou's copyrights . . . ."  (Id. at 711.)  In sum, the court of appeals reversed the district court as to twenty-five of the Prince works and vacated and remanded as to the remaining five works.

Judge Wallace concurred in part and dissented in part.  He concurred in the bulk of the majority's decisions.  He, however, would have reversed the district court for using the incorrect standard and would further have remanded the entirety of the case to the district court for application of the correct standard.  He also would allow the district court to consider Prince's deposition statements, for example, that he was not attempting to create a new message or meaning.  According to him, the statements were relevant to the "transformativeness" analysis.  (Id. at 712-13.)

Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013)
In Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013) (Seltzer), the Ninth Circuit relied in part on the decision in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)  In the case, the rock group Green Day used an artist's illustration, termed the Scream Icon (an anguished screaming face), in a video backdrop of its stage show without authorization.

The plaintiff Derek Seltzer is an artist and illustrator.  He created the Scream Icon in 2003 and sold copies in large posters and smaller prints.  The posters have been placed on walls as street art in the Los Angeles area.  One of the defendants Roger Staub is a photographer.  He photographed a wall in Los Angeles containing graffiti and posters which included a tattered poster of the Scream Icon.

Green Day commenced a tour to promote a new album.  The group hired Performance Environment Design ("PED") to prepare lighting and video backdrops for the stage show.  PED hired Staub to create the video backdrop.  For one of the songs, "East Jesus Nowhere," Staub created a video of a brick alleyway containing graffiti, posters and tags.  In the video, artists come and go adding to or changing the art work.  In the center of the video, is the Scream Icon constantly playing without change.  Staub cut out the image from the photograph he had taken in Los Angeles.  He modified it by placing a red spray-painted cross over the middle of the image.  He also changed the contrast and color and put black streaks running down the right side of the image.

Green Day used the video at some seventy concerts and at the MTV Video Music Awards.  Seltzer learned of Green Day's use of his illustration and transmitted a cease and desist letter to Green  Day.  The band eventually stopped using the video backdrop.  Subsequently, Seltzer sued Green Day, PED and Staub for copyright infringement.  The defendants moved for summary judgment, arguing fair use.  The district court agreed and entered judgment for defendants and awarded fees to the defendants.  Seltzer appealed.  The Ninth Circuit affirmed the substantive ruling but vacated the award of fees.

In reaching its decision, the Ninth Circuit performed the same statutory analysis that the Second Circuit performed in Cariou.  The court had no difficulty in concluding that the use of the Scream Icon was transformative:

[R]egardless of the meaning of the original, it [the original Scream Icon] says nothing about religion.  With the spray-painted cross, in the context of a song about the hypocrisy of religion, surrounded by religious iconography, Staub's video backdrop using Scream Icon conveys "new information, new aesthetics, new insights and understandings" that are plainly distinct from those of the original piece.

(Seltzer, 725 F.3d at 1175-77.)

The Ninth Circuit also found relevant an admission by the plaintiff at his deposition in which he stated that the backdrop "tainted the original message of the image and [] made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with."  (Id. at 1177.)

According to the court, a non-transformative work is one which makes no alteration to the expressive content or message of the original work.  In contrast, a transformative work manifests "new expressive content or message is apparent" and may be considered fair use  (Id. at 1177.)  Citing Cariou, 714 F.3d at 708, the court noted that [t]his is so even where . . . the allegedly infringing work makes few physical changes to the original or fails to comment on the original."  (Seltzer, 725 F.3d at 1177.)

Regarding the second statutory factor, "the nature of the copyrighted work," the court noted published works are more likely susceptible to a fair use defense and found that the Scream Icon had been widely published and that the plaintiff had controlled the "first public appearance" of his work.  Without much elaboration, the Ninth Circuit stated that publication tends to weigh in favor of fair use and that considering the second statutory factor as a whole, "it weighs only slightly in [the plaintiff's] favor."  (Id. at 1178.)

The third factor concerns the quantitative amount and qualitative value of the original work used in relation to the justification for that use.  Green Day copied most of the Scream Icon both quantitatively and qualitatively.  However, this factor does not weight against an alleged infringer, even when he copies the whole work, if he takes no more than is necessary for the intended use.  Green Day's transformative use of the whole image, according to the court, was necessary to achieve the band's "new expression, meaning or message."  The factor did not weigh against the defendants.  (Id. at 1178-79.)

As did the court in Cariou did with Prince's works, the Ninth Circuit gave little weight to the commercial nature of the backdrop video.  The use "was only incidentally commercial; the band never used it to market the concert, CDs, or merchandise."  (Id. at 1178.)

Concerning the fourth facto regarding the effect of the use on the potential market for or value of the copyrighted work, the court found significant the plaintiff's admission that Green Day's use did not affect the value of the Scream Icon.  The icon was intended as street art.  Green Day's use never included placing the icon on merchandise, albums or promotional materials and was used only for one song.  For the Ninth Circuit, there was no reasonable argument that Green Day's use had any effect on the Scream Icon market.  (Id. at 1179.)

In conclusion, the Ninth Circuit held that Green Day's use of the Scream Icon was a fair use.  Observing that the first (transformative nature of the work) and fourth factors (effect on market) have dominated case law discussion of fair use, the court emphasized that Green Day won on both of these key points.  The court affirmed the districts court grant of summary judgment.  (Id..)

Transformative Use And The Right Of Publicity
The transformative nature of a work of art, when compared to a prior work, has relevance not only for copyright infringement analysis but also with respect to the right of publicity.  In Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 ("Comedy III"), the California Supreme Court utilized a "transformative test" to determine whether  a work using the voice or likeness of an individual violates the individual's right of publicity.  In this regard, the right of publicity is a common law right as well as a statutory right (Cal. Civ. Code, §§ 3344 and 3344.1).  It protects an individual's right to profit from the commercial value of his or her identity.

In Comedy III, in adopting the transformative test, the Supreme Court sought to balance an individual's right of privacy with another's right of free expression under the First Amendment.  Relying upon the copyright decision in Campbell, supra, 510 U.S. at p. 579 and its discussion of "transformative" use, the California Supreme Court enunciated the following test:

This inquiry into whether a work is "transformative" appears to us to be necessarily at the heart of any judicial attempt to square the right of publicity with the First Amendment. . . .  [B] the First Amendment and copyright law have a common goal of encouragement of free expression and creativity, the former by protecting such expression from government interference, the latte by protecting the creative fruits of intellectual and artistic labor. . . .  The firth of publicity, at least theoretically, shares this goal with copyright law. . . .  When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protection the fruits of artistic labor outweighs the expressive interests of the imitative artist.

(Comedy III, 25 Cal.4th at p. 808.)  

The court went on to acknowledge that when a work possesses "significant transformative elements, it is not only especially worth of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity."  (Ibid.)  The court noted that transformative elements of creative contributions requiring First Amendment protection can include material ranging from factual reporting to fiction and from heavy-handed lampooning and parody to subtle social criticism.

In sum, a court will ask "whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness."  (Id. at p. 406.)  When faced with a right of publicity challenge to a work, the artist thus is entitled to interpose an affirmative defense that his or her work is protected by the First Amendment under application of the transformative test.  In Comedy III, the Supreme Court held that the defendant's depiction of the Three Stooges on T-shirts was not transformative.

What do these decisions tell practitioners about fair use, particularly in the context of appropriation art?  One thing that is not new for copyright practitioners:  these cases exemplify the truism that the fair use defense is a fact intensive analysis and rather subjective.  Therefore, the result more often than not can be uncertain.

Additionally, the transformative nature of the new work is key.  Whether the new work uses all or a part of the original work, fair use may be found if the later work adds "something new, with a further purpose or different character, altering the first with new expression, meaning, or message . . . ."  (Campbell, 510 US. at 579.)  As the Second Circuit ruled, there is no requirement that the new work, in order to qualify for the fair use defense must comment on, relate to the historical context of, or critically refer back to the original works.  (Cariou, 714 F.3d at 706.)  The other key factor, much related to the first, is whether the new work speaks to a different audience than the first, for example, is the audience those interested in purchasing a book of relatively small photographs or persons capable of spending a million or more dollars and a large work of canvas art.

Significantly, the Second Circuit gave no significance to Prince's deposition testimony that he intended no particular meaning in his appropriation art, careful practitioners.   The court stressed that the subjective intent of the artist was not the relevant consideration.  Rather, "[w]hat is critical is how the work in question appears to the reasonable observer."  Whether this provides a workable approach to assessing appropriation art as a fair use is an open question; for it simply seems to shift the subjective determination of transformative use from the artist to the court.  As Judge Wallace noted in his dissent "it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work] outside of the narrowest and most obvious limits."  (Cariou, 714 F.3d at 714 [citations and some quotation marks omitted].)

Lastly, as to the right of publicity, counsel would do well to monitor, not just case law involving the right of publicity, but those cases arising in the copyright and fair use context where the transformative nature of the allegedly infringing work is at issue.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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