I. Introduction
Appropriation in visual art
According to Tate Glossary, appropriation is “direct taking over into a work of art of a real object or even an existing work of art” (Tate). The practice of appropriating others’ works can be traced back in history. Examples are abundant, and it’s not surprising that such popular image as Raphael’s Judgment of Paris (1515) was copied time and again throughout history. One of his colleagues Marcantonio Raimondi made an etching of the image, which was then copied by Marco Dente da Ravenna. Édouard Manet’s famous Le Dejeuner Sur l'Herbe is known to have derived from a portion of Raimondi’s etching. After Manet, there have been numerous parodies of the motif, including that by Pablo Picasso (Harvard).
Bottom right-hand corner of Marcantonio Raimondi’s Judgment of Paris
Edouard Manet.Le Dejeuner Sur l’Herbe. 1863.
http://www.musee-orsay.fr/typo3temp/zoom/tmp_6bc85624379d7063df66ee62e74962d4.gifhttp://www.musee-orsay.fr/typo3temp/zoom/tmp_6bc85624379d7063df66ee62e74962d4.gif
Pablo Picasso. Le Dejeuner Sur l’Herbe. 1961.
http://www.join2day.net/abc/P/picasso/picasso212.JPG
Avant-garde artists as Pablo Picasso and Georges Braque incorporated objects like newspaper pages and wallpaper into their Cubist collage compositions (Tate). Then the Dadaists like Marcel Duchamp challenged the definition of art with his ready-mades and were followed by the Surrealists that made use of real objects like a telephone (e.g. Salvador Dalí’s Lobster Telephone) (Tate). In the 1950s, Abstract Expressionist artists such as Robert Rauschenberg and Jasper Johns and Pop artist like Andy Warhol also appropriated found images in their works. However, it was mainly with the American artists of the1980s that appropriation was used extensively and boldly. Jeff Koons, Sherrie Levine, Richard Prince, and an English artist Damien Hirst are among the most ardent practitioners of appropriation still thriving to this day. Appropriation art has many opponents that criticize its debatable lack of originality and integrity. In order to delve further into this issue of plagiarism, it is essential to understand how the copyright laws came about and what regulations are laid out by these laws as well as the differences between the various types of appropriation employed by some of these aforementioned artists, because the application of copyright laws differs depending on the kind of appropriation in question.
II. History of copyright law in art
- Hogarth’s Act
The Engravers’ Copyright Act is often referred to as the Hogarth’s Act for William Hogarth’s active involvement in its campaign. With The Rake’s Progress, he had first devised the subscription system to “…prevent the Publick being imposed upon by base Copies, before he can reap the reasonable Advantage of his own Performance…” (Paulson). However, the print sellers’ exploitation of Hogarth’s works continued, and their selling their copies at low prices negatively affected the sale of his originals, which, along with the low quality of these copies, led him to become the promoter of the enactment of Hogarth’s Act. It was fundamentally an extension of the regulations of the Literary Act of 1709 to prints. It granted the copyright period of 14 years at first (Later, it was increased to 28 years at Hogarth’s widow’s appeal). The petition to the Parliament was especially powerful because he drew attention to the matter of the overall quality of England’s art as a whole. It argued that protecting the rights of the artists would lead them to produce more innovative works of higher quality and benefit not only these artists but also the buyers, as well as the print sellers. Hogarth deliberately postponed the publication of his long-awaited Rake’s Progress print series to benefit from the Act, which took some time to be in effect. Once in effect, the Act reduced the number of instances of piracy, although it did not completely eliminate it. Hogarth had available smaller copies at a cheaper price for those who could not afford the original and allowed copies of his prints but only once authorized by him. Hogarth’s Act laid the groundwork for the future establishments and revisions of the copyright laws.
- Copyright Law of the U.S.
The first federal copyright act inaugurated in the United States is the Copyright Act of 1790 (Rudd). The Statute of Anne of Great Britain had not been extended to the U.S. The Philadelphia Convention in 1787, James Madison and Charles Cotesworth Pinckney submitted proposals that would allow Congress the power to grant copyright for a limited time and later became the origin of the Copyright Clause in the United States Constitution. The Copyright Clause granted copyright and patents "to promote the progress of science and useful arts". The Copyright Act of 1790, almost an exact copy of the Statute of Anne, granted copyright for 14 years and allowed it to be renewed for another 14 years. However, The Act covered only books, maps, and charts. Artworks were included until later.
Copyright Act of 1976 is probably the most significant for our purpose because it was only by this Act that artworks came under the protection of copyright law. It put down five exclusive rights for copyright holders: the right to reproduce (copy), the right to create derivative works, the right to sell, lease, or rent copies, the right to perform the work publicly, and the right to display the work publicly. 17 U.S.C. §106. The duration of copyright protection was extended to 50 years after the author’s death. It was further extended to the author’s life plus 70 years under the 1998 Copyright Term Extension Act.
Changes in the duration of copyright term
Fair use is one of the most important provisions made in the 1976 Act. According to Judge Pierre Leval, the copyright law represents “a recognition that creative intellectual activity is vital to the well-being of society. It is a pragmatic measure by which society confers monopoly-exploitation benefits for a limited duration on authors and artists (as it does for inventors), in order to obtain for itself the intellectual and practical enrichment that results from creative endeavors” (Leval). However, certain appropriation of existing images is permitted under the “fair use” doctrine. Copyright Act of 1976 provides that "the fair use of a copyrighted work . . . is not an infringement of copyright"'
The U.S. Copyright law recognizes that “the copyright does not protect ideas, but only the manner of expression” and “secondary creativity” should be protected, for “all intellectual creative activity in part derivative” (Leval). In 1990, Judge Leval wrote in his article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990):
"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test… If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”
There are four factors that are considered in court to decide whether the appropriation in question qualifies as fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature of 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. 17 U.S.C. § 107
Nevertheless, these components that are designed to assist in the decision-making are still not clear-cut and objective enough. Consequently, the fair use doctrine requires case-by-case analysis.
III. Appropriation art explored
There are various types of appropriation in art and the most common and popular are collage art, appropriation of photographs, and parody. It is important to understand that when an appropriated work is brought to court, which statue of the copyright law is to be applied to either justify or condemn the work will depend on which kind of appropriation is in question.
- Parody
A parody often mocks or satirizes an existing work. Parody seems to be a safer path of appropriation, for it is protected under the copyright law. However, an appropriated work is exempt from copyright infringement charge only if the court decides that it is indeed a parody. The legal suit brought against Jeff Koons can be a telling example of this. Koons has been sued for copyright violation four times and lost three of the cases, and the most infamous of the three defeats is Rogers v. Koons (Taylor). After seeing a photographer Art Roger’s photograph of a couple sitting on a bench with puppies on their laps, Koons tore off the copyright notice from the picture and gave it to his assistants in Italy with an explicit instruction to copy it. His own notes sent to his assistants telling them to copy the photograph as exactly as possible to the smallest details were put forward to use against him. With regard to the amount and substantiality of work used, it was determined that Roger’s photograph was copied in toto and Koons well exceeded the level of copying permissible under the fair use doctrine.W hen Rogers’ photograph and Koons’ sculpture are juxtaposed, their likeness is unquestionable. Only a few details were changed in Koons’ three-dimensional reproduction of Rogers’ photograph: the flowers in the portrayed couple’s hair, bigger noses of the dogs, and the color of the dogs. The court decided that Koons’ deliberate removal of the copyright notice from the original picture and the monetary profit of $367,000 that he made from his infringing work demonstrate “bad faith.” Koons then argued that his sculpture constituted “fair use” because it was a parody with a purpose of commenting on the contemporary materialistic society. Parody is a work that closely imitates the style of another artist to poke fun at the very style copied or give a social critique by creating a new work with a unique expression. The court disagreed that Koon’s sculpture was a parody; they thought that it was merely a copy and Koons’ behavior an act of piracy (Taylor). Unfair copying impairs demand for the original work and unjustly forces the artist of that work to stop producing such works.
While Koons’ behavior was described as “willful and egregious,” Rogers was not able to receive the monetary compensation he demanded. The reasoning was that Koons could keep the profit he made if he could prove that it derived from his own fame and position in the art world.
http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm
- Collage
Tate Glossary defines collage as “the technique and the resulting work of art in which pieces of paper, photographs, fabric and other ephemera are arranged and stuck down to a supporting surface” (Tate). A collage work can be a painting, a drawing, or a three-dimensional construction. Numerous artists, from Picasso to Rauschenberg, did collage, but it’s only lately that this practice has become contentious.
Jeff Koons, again, provides fitting example here. In the 2006 lawsuit Blanch v. Koons, Andrea Blanch accused Koons of stealing her work without authorization in his collage Niagara. In this collage work, four pairs of women’s legs dangle over the Niagara Fall backdrop filled with ice cream and donuts. His intention was to “comment on the ways in which some of our most basic appetites-for food, play, and sex-are mediated by popular images” (FindLaw). The subject of this lawsuit was one of the legs Koons used, which was derived from Blanch’s photograph, Silk Sandals by Gucci, produced for the August 2000 issue of Allure magazine. Koons, however, succeeded to demonstrate that his collage fell under fair use (Taylor). In his work he included only part of Blanch’s photograph, changed its orientation, and used it in a completely different context to deliver a different message than Blanch had tried with her original. The court sided with Koons because his use of Blanch’s photograph was “transformative,” Blanch’s original “banal rather than creative,” the image of women's legs is of limited originality, and Blanch’s photograph could not have captured the market occupied by “Niagara.”
http://www.owe.com/legalities/images/legal30_blanch.jpg
- Other appropriation (or is it plagiarism?)
Damien Hirst is another appropriation artist who has become the richest living artist to date. But this doesn’t mean he is free from the art theft claims. Charles Thomson complained, "Hirst is a plagiarist in a way that would be totally unacceptable in science or literature" (Alberge). Thompson’s charges against Hirst doesn’t seem to be untrue when one considers Hirst’s saying, "Lucky for me, when I went to art school we were a generation where we didn't have any shame about stealing other people's ideas. You call it a tribute" (Alberge). Numerous cases of appropriation, or plagiarism in Thompson’s words, can be found in his article, “The Art Hirst Stole,” with images comparing the works of Hirst with those of other artists. The truth is that they do look strikingly similar. However, Hirst’s works are worth much more than any of the allegedly stolen works and continue to be popular in the market. John LeKay, who made a crucified sheep before Hirst, has never sold anything above £3,500, while Hirst's set of three crucified sheep sold for £5.7m. Lori Precious's butterflies, from which Hirst seems to have taken inspiration, sold for £6,000, while Hirst's version sold for £4.7m (Alberge).
Comparison between the works of Precious and Hirst
http://www.stuckism.com/Hirst/StoleArt.html
Stuckist poster against Hirst
http://nikkokarki.files.wordpress.com/2010/11/flyer-4002.jpg
IV. Impact
The effect Hirst has on the art world is immense and often times deleterious. Lori Precious stopped producing butterfly works because Hirst has taken the idea as his own, and nobody would be interested in her works when the biggest name in the art world is producing the same thing. Unfair copying impairs demand for the original work and forces the artist who produced the original out of work. Precious says she gave up her butterfly image because she does not have the funds to pursue legal action (Alberge). In this case, even the copyright law cannot seem to protect Precious’s rights. As “appropriation” of this kind by contemporary artists like Hirst continues to grow and fetch large sums of money in the market, one cannot be but concerned that the enthusiastic response of the market toward plagiarized works will only encourage more plagiarism at the expense of less known, less powerful artists.
The importance of the market and its legal implications are shown in such lawsuit as Blanch v. Koons as well. Part of the reason that the court ruled in favor of Koons was the effect of his appropriation upon the potential market for the copyrighted work. In other words, Blanch’s and Koon’s works targeted different markets and thus Koon’s use of Blanch’s image was not considered harmful to Blanch. This reasoning discloses not only that the market plays a big role in the art world but also that the copyright law can be used to foster creativity. However, the case of Rogers v. Koons demonstrates another shortcoming of the copyright law. While Koons’ behavior was described as “willful and egregious,” Rogers was not able to receive the monetary compensation he demanded. The reasoning was that the law is such that the artist could keep the profit he made if he could prove that this profit derived from his own fame and position in the art world. So the law failed to provide Rogers with any tangible compensation while it let Koons keep the income he reaped from the art he stole.
Sometimes appropriation artists try to use the copyright law against appropriation of their appropriation. In 2011, Koons went after a Canadian company Imm-Living on the grounds of violation of his intellectual property rights by selling bookends that resembled his “Balloon Dog” sculptures (Taylor), and Hirst threatened a 16-year-old boy with a copyright infringement claim for using an image of Hirst’s diamond-encrusted skull in his collage art. Hirst requested that the boy’s collage be destroyed and any profit made from it be relinquished to him (Weaver). It’s interesting to see appropriation artists try to use the copyright law to their advantage after having thrived by the very act of appropriating from others.
IV. Conclusion
Because of the subjective nature of creativity, the distinction between what is acceptable and what is not is difficult to discern; consequently, many appropriation artists risk walking the line between appropriation and downright plagiarism. This is precisely why artists should be aware of the elements of a legitimate copyright ownership, so that they are careful when creating art inspired by others’ copyrighted works and are able to claim their rightful authorship and ownership when they see it violated by others. Although the copyright law does not seem to be within everyone’s reach and is sometimes misused by some for purposes that do not align with the aims of the law, it can, when rightly used, protect artists from infringement of their works as well as prevent future abuses. Another concern for the copyright law is that it may limit the creativity of contemporary artists and inhibit artistic growth. Court rulings like the ones discussed here do help the artists understand the risks pertaining to appropriation, but it’s important to remember that a court decision is not equal to artistic judgment (Party). Therefore, artists must not be discouraged by these rulings to create innovative works of art but they should use them as guidelines in their creative endeavors.
Works Cited
Alberge, Dayla. “Damien Hirst faces eight new claims of plagiarism.” The Guardian. 2 Sep. 2010. Web. 15 Jan. 2012. <http://www.guardian.co.uk/artanddesign/2010/sep/02/damien-hirst-plagiarism-claims>.
“Blanch v. Koons.” FindLaw. Web. 15 Jan 2012. <http://caselaw.findlaw.com/us-2nd-circuit/1374144.html>.
“Copyright Act of 1790.” Wikipedia. <http://en.wikipedia.org/wiki/Copyright_Act_of_1790#cite_note-0>.
The Copyright Law of 1976. 17 U.S.C. §106-7. 1976. Web. 15 Jan . 2012. <http://www.copyright.gov/history/pl94-553.pdf>.
“Glossary.” Tate. Web. <http://www.tate.org.uk/collections/glossary/default.htm>
“Image Rights.” Harvard Law School. Web. <http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm>.
Party, William. “Appropriation Art and Copies.” The Party Copyright Blog. 20 Oct. 2005. Web. 16 Jan. 2012. <http://williampatry.blogspot.com/2005/10/appropriation-art-and-copies.html>.
Paulson, Ronald. Hogarth: Vol.II, High Art and Low, 1732-1750.
“Rogers v. Koons, 960 F. 2d 301 - Court of Appeals, 2nd Circuit 1992.” Web. <http://scholar.google.com/scholar_case?case=9102865469766650757&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.
Rudd, Benjamin W. “Notable Dates in American Copyright: 1783-1969.” U.S. Copyright Office. Web. <http://www.copyright.gov/history/dates.pdf>.
Taylor, Kate. “In Twist, Jeff Koons Claims Rights to ‘Balloon Dogs.’” The New York Times. 19 Jan. 2011. Web. 17 Jan. 2012. <http://www.nytimes.com/2011/01/20/arts/design/20suit.html>.
Thompson, Charles. “The Art Damien Hirst Stole.” Stuckism. 2010. Web. 10 Jan. 2012. <http://www.stuckism.com/Hirst/StoleArt.html>.