As the last posting indicated, the College Art Association held a two-day symposium in NYC this last Friday and Saturday which included considerable discussion of the issues raised by the art appropriation movement, including the ways that movement has evolved in the last two decades or so. On Friday morning, Judge Pierre Leval and I had a public dialogue on the relevant copyright issues. First though there were presentations by three professors of art history: Lisa Pon ("Inappropriate? Copying in the Renaissance"), Johanna Burton ("The Reign of the Quotation -- Appropriation and Its Audience"), and Jaimey Hamilton ("From Appropriation to Postproduction").
The panel was chaired by Martha Buskirk and Virginia Rutledge. The session was taped, but permissions haven't been worked out. One thing seems evident: it is difficult to bridge the gap between how those in the art community who favor art appropriation and who see copyright as an inappropriate vehicle by which to address disputes over such copying, and Judge Leval's and my view: appropriation art should be judged by the same standards as all other uses, taking into account what the artist was trying to accomplish.
For me and I believe Judge Leval, fair use has done, on the whole, an admirable job of mediating between the two typical opposing forces in art appropriation: the artist whose work has been appropriated and the artist who does the appropriating. These disputes, it must be emphasized, are intra-mural, pitting one artist against another. Too often, copyright is described in the art community as an alien force joyfully stifling art. Historically, however, it is artists who sought copyright or similar protection for their works: it was artists who did the lobbying, and in the case of the 16th century Venetian privileges, paid for them. I am unaware of any instance where a sovereign or legislature granted copyright (or the like) against the wishes of artists. If there are tensions between art and copyright, let's locate the source of the tension where it belongs: in differences within the art community. The tension is not externally imposed by the legal community. Nor is such tension peculiar to the arts. Harold Bloom's "The Anxiety of Influence" is a good source for poetry. Law didn't create such tensions and it can't solve them other than on a case-by-case basis.
Some of the discussion revolved around whether such tensions fell out along the "fine art" versus "commercial art" distinction, but in Koons's case, it is unclear how such a distinction would be applied. Both Judge Leval and I emphasized that whatever the source, once matters get in to court (and few do, it should be observed), there is no special artists' exemption, and instead, the general principles of transformative use apply: the idea that judges shouldn't judge such disputes is a dangerous fallacy. Another fallacy, noted by Judge Leval, is that judges are judging art in doing so: not true, he noted, although he did state that some judges have stepped over the line and inappropriately done so.
We both agreed that judges should be instead deciding a fair use defense and that the ultimate decision whether a use is fair or not says nothing about the quality of the art on either side of the pleading. Appropriation art of the Sherry Levine copying of Walker Evans was met with great skepticism as fair use: making a conceptual point as an artist is, after all, different than making a transformative use in copyright, and I would say it was on this point that two groups: art historians favorable to art appropriation and non-partisan lawyers (that is those of us not representing anyone in such disputes), had and probably will always have the greatest trouble.
At the same time, Judge Leval agreed that while fair use was invented by judges for judges (in order to promote learning and creativity), too many judges have been hostile to it. Judge Leval was particularly critical of the Supreme Court's Sony decision (but not of the result). Rather than regarding all unconsented to uses as fair use, in order for fair use to have doctrinal coherence, it is preferable to instead to treat some uses as either not within the copyright owner's rights or as de minimis.