Yours might have been yours, but now it is mine: Appropriation artists and the shady area of copyright

30 Dec, 2016 Articles

Simply put, appropriation is the use of objects or images already created by somebody else with little or no transformation applied to them. These objects or images then become a part or even a whole of the new art object or an image. Somebody a bit knowledgeable in the matter of copyright might immediately react saying that this is not allowed, however, it is not entirely correct. Here we enter into the shady area of copyright.


Consider the well-known case of Andrea Blanch vs. Jeff Koons. Ms Blanch took a photo of a woman’s feet wearing Gucci sandals - “Silk Sandals by Gucci”. The photo was featured in the famous “Allure” magazine and that’s where Jeff Koons took it from to further incorporate it in his painting “Niagara”. The latter contained several pairs of women feet in different sandals. One of them was copy-paste of the photo of Andrea Blanch. To cut the long story short, Jeff Koons won the case. Was it because it was truly a transformative use, as it was acknowledged by the judge, or  was it because by then Mr Koons, seasoned in court proceedings, already knew the right words to use in order to make his point, remains a rhetorical question. To quote Jeff Koons himself: “<…> the legs depicted in the Allure photograph are a fact in the world, something that everyone experiences constantly; they are not anyone’s legs in particular. By using a fragment of the Allure photograph in my painting, I thus comment upon the culture and attitudes promoted and embodied in the Allure magazine”. In other words, he brought up the arguments of “transformational use”, “different meaning”, “commentary on the existing phenomena”. It would be fair to note, however, that there were numerous cases before where Jeff Koons lost the fair use argument, but that was when he was still exhibiting at small galleries, long before he made it to the Museum of Modern Art and the Met.


Andrew Gilden and Timothy Green in their article “Fair use for the Rich and Fabulous” elaborate on the above issue, posing a question: “Why does a substantial reworking of Catcher in the Rye interfere with J.D.Salinger’s “right not to authorize derivative works” while Patrick Cariou’s photographs are “the raw material” for the well-known appropriation artist Richard Prince?”. Indeed, fame comes with benefits, yet truth must be told that it is also a matter of a right framing.


In 1977 there was a pivotal exhibition “Pictures” organized with curation of Douglas Crimp that basically “launched” appropriation as the new art, as the new mode of representation. To note that appropriation as the form of art existed long before, yet after the said exhibition it was truly coined. The artists whose works were exhibited were amongst others Troy Bauntuch, Robert Longo and Sherrie Levine. The latter became known for rephotographing photographs of Walker Evans. There no pure recontextualization can be claimed, aside from being an “archeologist of present time” as some appropriation artists call themselves. Nevertheless, Ms Levine remains a well-known appropriation artist.


In fact, appropriation art is a multifaceted form. One might argue that the famous “The readymades” of Marcel Duchamps is something different from the Marlboro cowboy of Richard Prince, but both of them belong to the domain of appropriation. The former is an example of an installation. Marcel Duchamps took ordinary manufactured objects and exhibited them as the work of art. The explanation there was that the very fact that the artist selected these objects and repositioned them creates a completely new perception. Thus, the concept of recontextualization overrides the potential copyright issues.


To drop some other names: Nam June Paik and Jud Yalkut compressed and distorted mass-media footages of Beatles concerts and presidential speeches. Louise Lawler made a series of behind-the-scenes photos of famous art objects, like for example “a Picasso sculpture wrapped”. Richard Pettibone made precise miniature recreations of iconic works. Robert Colesscott in his “Les Demoiselles d’Alabama” clearly appropriated Pablo Picasso’s “Les Demoiselles d’Avignon” (even though changing the color and adapting the content). Elaine Sturtevant hand-painted replicas of famous works. Andy Warhol silk-screened famous photographs… Just to name the few.


If you still feel like appropriation constitutes author’s rights’ violation in the perception of the Article 6bis of the Berne Convention, try to look at it from the point of view of parody. In the Comedy III Productions Inc. vs. Gary Saderup the California Supreme Court judge refers to above-mentioned Andy Warhol in his commentary, saying: “Through distortion and careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.” The judge further invokes the First Amendment protection (the freedom of speech) to basically back up the existence of appropriation art. In other words, irony and parody might be successfully used in order to substantiate the appropriation.


To give another example to ponder about. There was a case over Damien Hirst’s sculpture “Hymn”, which was a 20-foot enlargement of the Science set play-figure. The case resulted in a settlement with the undisclosed donation made by Mr Hirst to charities. The bottom line, however, is that the original sculpture was sold for approximately 1 million pounds and after the settlement further sold in four additional copies for more or less the same amount. Thus, even with settlement sum deducted, the appropriation seems like a profitable “business”.


Pure economical considerations aside there are also moral rights of the author at stake. The New Times article “If the copy is an artwork, then what’s the Original” by Randy Kennedy, elaborates on the feelings of the original author whose work has been appropriated. Jim Krantz was the photographer who took the original Marlboro cowboy photo. The appropriation artist Richard Prince rephotographed that photo from the advertisement, enlarged it and…sold at Christie’s in 2005 for 1.2 million dollars setting a new record for appropriation art. Mr Krantz did not launch a lawsuit, yet his feelings were undoubtedly affected, as he craved recognition. This triggers several interesting points for the debate: first being, whether there should be a distinction of “high art vs. low art”, or in other words, is it about the actual art object or the value is all about the author’s signature? In general, should the concept of originality be regarded as the property of the work or as the property of the author? The answer to that can have a long-stretching consequences for the development of copyright law.


To conclude, I would like to cite Jeff Koons again, who said: “My paintings are not about objects or images that I might invent, but rather about how we relate to things that we actually experience”. Whether you agree that such substantiation is enough to override the claim of copyright violation or not, is up to you. Nevertheless, the case law proves that on a lot of occasions fair use claim can be invoked to back up appropriation art. Moreover, numerous appropriation works actually do what they claim, meaning: provoke the discussion, challenge the societal norms and customs and overall enrich the world art heritage.


Maria Boicova-Wynants, European Mediator in cross-border civil and commercial disputes, qualified Patent and Trademark attorney

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Preview photo: Pavel L Photo and Video /