Appropriation Art and Copies

The last three blogs touched on some issues that have been troubling me: how we regard exceptions to exclusive rights, like fair use (and formerly fair abridgment), "copy," and "author." All of these same issues are present in the conflict between appropriation art and copyright, thereby providing a nice conclusion for this multi-posting thread. Here's a short description of Appropriation Art from London's Tate Gallery (the link has pictures and internal links to artists mentioned):

"Appropriation
As a term in art history and criticism refers to the more or less direct taking over into a work of art of a real object or even an existing work of art. The practice can be tracked back to the Cubist collages and constructions of Picasso and Georges Braque made from 1912 on, in which real objects such as newspapers were included to represent themselves. Appropriation was developed much further in the readymades created by the French artist Marcel Duchamp from 1915. Most notorious of these was Fountain, a men's urinal signed, titled, and presented on a pedestal. Later, Surrealism also made extensive use of appropriation in collages and objects such as Salvador Dali's Lobster Telephone. In the late 1950s appropriated images and objects appear extensively in the work of Jasper Johns and Robert Rauschenberg, and in Pop art. However, the term seems to have come into use specifically in relation to certain American artists in the 1980s, notably Sherrie Levine and the artists of the Neo-Geo group particularly Jeff Koons. Sherrie Levine reproduced as her own work other works of art, including paintings by Claude Monet and Kasimir Malevich. Her aim was to create a new situation, and therefore a new meaning or set of meanings, for a familiar image. Appropriation art raises questions of originality, authenticity and authorship, and belongs to the long modernist tradition of art that questions the nature or definition of art itself. Appropriation artists were influenced by the 1934 essay by the German philosopher Walter Benjamin, The Work of Art in the Age of Mechanical Reproduction, and received contemporary support from the American critic Rosalind Strauss in her 1985 book The Originality of the Avant-Garde and Other Modernist Myths. Appropriation has been used extensively by artists since the 1980s."

A more thorough description can be found at this Wikipedia article. A Harvard Art Law site also has a lot of information, including pictures of the Koons case discussed below.

The practice of appropriating others' images is quite old, and can be seen in a interesting sequence involving Raphael's "Judgment of Paris (1515). One of his colleagues, Marcantonio Raimondi made an etching of it that became quite popular. Raimondi's etching was then copied by Marco Dente da Ravenna. Three decades later, Claude Manet copied from Raphael et al, a group of three figures for his famous work "Le Dejeuner Sur l'Herbe," which has itself been parodied a number of times.

Courts have not, though, been receptive to fair use appropriation art claims. In Rogers v. Koons, the Second Circuit came down hard on Jeff Koons for his appropriation of a photograph, which he had Italian sculptors turn into three dimensional form. When I worked for the House of Representatives, we had a hearing at which the photographer, Art Rogers testified, and we had on exhibit in the hearing room the Koons sculpture. The Koons case was a cause celebre in the New York art scene, which was outraged by the court's condemnation of Koons as a pirate flying the flag of the Jolly Roger. Part of the outrage stemmed, I believe from a failure to appreciate that art criticism and law travel different paths: a judgment that a work is infringing (not fair use) doesn't mean the court is rendering an artistic judgment. Another problem is a belief that if something is viewed by the art community as art, it can't be infringing. This is explored in an article by William Landes (a frequent co-author with Judge Posner) Copyright Protection and Appropriation Art.)

But there is a perspective brought to bear by the art community that deserves consideration by courts, and that is the conflation of originality, author, and copy into a reflexive need to protect copyright owners against wholesale reproduction that might be viewed as conceptually transformative in the appropriation art sense of that term. Might some conceptual appropriation provide new insights into the original? If so, we might think twice before legally condemning it.

Still, it must be noted that the art community is itself divided on appropriation art, with some artists whose works have been appropriated viewing the appropriators as destroying art. Here is an article from the October 13, 2005 issue of ArtsJournal.com that explores the divided views within the art community (scroll to the end of the article.)(Courtesy of Virginia Rutledge of Cravath, who on November 10th in NYC is co-chairing with Paul Winick of my firm a program about Fair Use issues in visual art at the City Bar Association. The program is going to consist of an art historian's presentation of appropriation in art and brief presentations of legal principles in copyright, trademark and right of publicity, followed by a panel discussionwith me, Larry Lessig, New York Times art critic Roberta Smith and two art world representatives, David Ross, former director of the Whitney, and Joel Wachs of the Andy Warhol Foundation).

This division of opinion within the art community is interesting for another reason: artists have been the most fervent advocates of moral rights, which are based on the Romantic inseparability of the artist and his or her work. Appropriation art seems to deny that connection, and with it the concepts of author and originality. But can one have it both ways? Can one have moral rights without authors, works, and copies?