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.
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Pablo Picasso. Le Dejeuner Sur l'Herbe. 1961.
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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.