Related to collaboration is the practice of appropriation, which also is controversial and has faced legal challenges. Whereas in collaboration the contested issue involves an artist acquiring the workmanship of someone else, in appropriation what is debated is the acquisition of ideas embodied in the images of artworks produced by others. Critics have sometimes equated appropriation with forgery, but that characterization is misleading. Forgery is the presentation of one’s own work as that of another artist, whereas appropriation uses another artist’s work as one’s own. To put it another way, each practice is a form of exploitation, in one case of a name and in the other case of an image. When appropriation goes wrong, it turns into plagiarism rather than forgery. The legitimacy of appropriation art—what both philosophically and legally is argued to make it other than plagiarism—is determined by how it is distinguished from conventional copying. Although appropriation is not a variety of forgery, it can be thought of as a close cousin, and it is open to challenges concerning the authenticity of the works it generates.
Appropriation art as it is known today is traced by historians to the early twentieth century. It was prompted by artists such as Picasso and Braque in their use of ready-made materials in assembling collages, and especially Marcel Duchamps’s taking over whole objects and presenting them as artworks in themselves. Recognition for this approach grew, and by the 1980s and beyond, the term “appropriation” was standard vocabulary, identified with artists such as Andy Warhol, Sherrie Levine, Elaine Sturtevant, Robert Rauschenberg, Jeff Koons, Damien Hirst, and Richard Prince. Beyond using existing objects, they simply confiscated images. Appropriation is differentiated from conventional copying through postmodern thinking, as a challenge to the artistic conventions of originality and creativity and as mocking commercialism or making social commentary of other sorts. The thrust is to do something new with what has already been done, including the use of existing images in full with no alteration or slight alteration that are then put into different settings to introduce new meanings.
An argument commonly offered in support of the practice of appropriation notes that artists have always been copyists. Often added is the assertion that historically this was not a cause for conflict.89 And it is said that conditions could not be otherwise: all art is derivative because any artist necessarily draws on prior ideas and works. This line of thought is far from new and has been promoted by philosophers and in legal scholarship as well as in the popular press and by artists themselves. Artist Robert Motherwell exemplifies the view that all artists borrow from others: “Every intelligent painter carries the whole culture of modern painting in his head. It is his real subject, of which everything he paints is both an homage and a critique.”90 Philosopher R. G. Collingwood, in his well-known book, The Principles of Art, speaks strongly for artists who copy others, citing historical precedent:
I refer especially to that kind of collaboration in which one artist grafts his own work upon that of another, or (if you wish to be abusive) plagiarizes another’s for incorporation in his own. A new code of artistic morality grew up in the 19th century according to which plagiarism was a crime.91
The argument goes: because artists have always been copyists and cannot help themselves, and borrowing from others was not a problem until late in history, then appropriation should not be a cause for complaint. Whether called “borrowing,” “copying,” “appropriating,” or by other words, artists are following the normal order of things. To quote Collingwood again, “I will only say that this fooling about personal property must cease. Let painters and writers and musicians steal with both hands whatever they can use, wherever they can find it.”92
The perspective that copying is normal and not wrong offers a convenient defense for appropriation art, but it suffers from overgeneralization. Although many artists in history borrowed from other artists, and some appropriated whole images, this does not mean that those who were borrowed from, or the public of their time, approved. Historical events described in part I involving Albrecht Dürer in the sixteenth century and Paul Revere and William Hogarth in the eighteenth century demonstrate the pushback that occurred against artistic appropriation. The movement toward comprehensive copyright laws in the United States and Europe began in the eighteenth century, grew in the nineteenth century, and developed further in the twentieth century, but the fact that legal control over copying is not universal over time does not diminish its importance today. Further, current law makes provisions for artistic appropriation in some circumstances but clearly does not give blanket protection for it. To suggest that appropriation has historical sanction, and opposition to it is a recent aberration that should be surpassed, is misleading at best.
Also misleading is the position that since all art is derivative, appropriation must be acceptable. Artists do not create ex nihilo; they borrow from what they are familiar with when they create. But this does not mean that all artistic borrowing is acceptable any more than that it is acceptable outside the realm of art for people to borrow things from their surroundings when they find they can make use of them. Appropriationists emphasize what they can do with what they borrow, to the neglect of other conditions. But the well-being of those who are appropriated from also comes into play, and when the appropriated item is a work of art, the act of appropriating answers to copyright law. Collingwood’s pitch notwithstanding, taking whatever one wants wherever one finds it runs into trouble in the art world just as it does elsewhere.
Despite the explanation that the works they create offer new meanings, appropriation artists have often been denounced by the artists whose works they targeted and have faced legal claims based on copyright infringement. In the United States, in particular, there have been numerous claims, some of which have been settled out of court. In the 1960s, Warhol fended off three complaints from photographers by giving them (and their agents or attorneys) works of art. One was offered royalties on the future use of the image in question. According to a Warhol associate, “he learned a lesson from the lawsuits” and began securing permissions for his appropriations.93 Another associate said, “Andy realized that he had to be very careful about appropriating for the fear of being sued again. He opted to start taking his own photographs.”94 In the 1970s, Robert Rauschenberg moved away from using appropriated photos after settling legal problems out of court, and Sherrie Levine, who purposely cultivated a reputation for reusing other artists’ images, agreed to a settlement after which she copied works available in the public domain.95 In 2011, artist Shepard Fairey settled with the Associated Press (AP) over a photograph he appropriated to create a poster for Barack Obama’s presidential campaign, agreeing to share rights to the image as well as the merchandising of it, along with a promise to obtain a license for future use of AP photos.96 On other occasions, accused appropriation artists have decided to go to court, resulting in various decisions that reflect an array of legal thinking about copyright and art.
US copyright law has its foundation in the Constitution, which states that Congress has the power “to promote the Progress of Science and the useful arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”97 The intent is to encourage creators to continue creating, to the benefit of society, rather than give up for fear that whatever they develop will be immediately copied and produced by someone else. Over time, “writings” has been broadly interpreted to include artistic creations and “authors” to include artists, while “useful arts” include fine arts.98 Successive copyright laws have been passed, and various court cases have set precedents that provide protection for artists against infringement. However, there is an important exception to this protection. Under the Copyright Act of 1976 (with prior legal precedent), it is legal for the works of an artist to be used by another party according to the doctrine of “fair use” (analogous to “fair dealing” used by many other countries, although with structural differences between the two approaches99). The objective of fair use is to further freedom of expression and the public good by allowing existing material to be put to new uses and not repressed under exclusive control. A set of four factors is stipulated for determining when fair use is present.
1. the purpose and character of the use, including whether such use is of a commercial nature or 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;
4. the effect of the use upon the potential market for or value of the copyrighted work.100
There is no instruction as to how these factors are to be considered holistically or how any one of them is to be evaluated. Courts must determine that one outweighs another when they do not all point in the same direction.
Jeff Koons’s several experiences of being sued for infringement highlight the evolving interpretation of the fair use doctrine. An action was brought against him in 1989 (Rogers v. Koons) for copying an image of puppies he found on a postcard and made into a sculpture he titled String of Puppies. The photographer who took the photo for the card claimed infringement. Koons’s defense was that he was parodying the image and in that way changing its meaning, which was aimed at satisfying the first factor of fair use. The court rejected this explanation by noting that the sculpture failed to ridicule the material it drew from and that the commercial purpose by which Koons gained from his appropriation was evident.101 Another lawsuit (United Feature Syndicate v. Koons) followed in 1993 over his sculpture Wild Boy and Puppy, which copied the Garfield comic strip character “Odie,” with a similar defense and similar result.102 The artist then began licensing copyrighted images he appropriated, although he was sued for infringement on later occasions. During the intervening period an important Supreme Court decision established a precedent favorable to appropriation art. In Campbell v. Acuff-Rose, a musical group’s combination of new lyrics with the score from a famous song was found acceptable because the resulting work was “transformative” by making a general comment on culture without parodying the appropriated content. Furthermore, the newly named characteristic of transformativeness was held to be important enough that as it increases in degree, the four factors considered in fair use are diminished.103
Koons was sued in 2003 (Blanch v. Koons) for the unauthorized use of a photograph in his collage painting Niagara. This time he relied on transformativeness and won the case, which in 2006 was affirmed when the plaintiff appealed to the circuit court level. Although all four fair use factors were considered, transformativeness was key, with the defendant stating that the copyrighted work he appropriated was used for the purpose of the “creation of new information, new aesthetics, new insights and understandings.”104 With transformativeness established in case law, it became the basis for Richard Prince’s defense in Cariou v. Prince in 2013 for tearing a set of thirty-five photographs from a book and pasting them on a board as a collage, trimming and overpainting some in the process. Thirty more works comprising the Canal Zone series were made using photos removed from other copies of the same book. The district court’s ruling was against fair use because the defendant demonstrated no parody on an individual level or a satirical commentary on culture more broadly. However, Prince won on appeal for all but five of the thirty works in question when the Second Circuit Court determined that transformativeness does not require commentary of any sort invested in a work by its author but rests on how the work is perceived by viewers. Whether transformativeness is present depends on what the work is seen to be rather than on an intended message by the artist. The court found Canal Zone to “reasonably be perceived” as of a different nature than the appropriated photos that appeared in it. Further, when the court evaluated the market effect of the appropriation in the fourth factor of fair use, it focused on the economic damage the plaintiff might experience in the particular market where the original was sold compared to damage in the market for the new work, declaring that the more transformative the work is, the less likelihood there is that the markets will overlap. Cariou’s book from which the photos in question were taken earned $8,000 in royalties, whereas Prince’s work that used the photos netted millions, selling to a different audience. Thus, Prince had not interfered with the marketability of Cariou’s work.105
The trend in US copyright cases toward easier acceptance of appropriation art has drawn much commentary and controversy. The practitioners of appropriation appreciate that their method has acquired the cachet of legal recognition. Postmodern thinkers on art favor the message transformativeness sends about rejecting tradition and establishing new meanings. And supporters of freedom of expression find an ally in a policy of noninterference. On the other hand are legal thinkers and philosophers who oppose the courts being placed in a position of having to make judgments about aesthetics. And they specify that a particular brand of aesthetics has been privileged, along with a particular view in economics.
Legal scholars have pointed out that the variety of opinions on the nature of fair use in appropriation art is grounded in differing approaches to aesthetics.106 Judges are forced to make determinations based on philosophical considerations that are out of their purview and that have a reputation for being subjective in contrast with the objectivity sought in matters of law. Concern about mixing the law with the ambiguity of art was spoken to famously by Justice Oliver Wendell Holmes more than a century ago, saying, “It would be a dangerous undertaking for persons trained only to law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”107 This warning is born out in the copyright decisions described here. In the cases of Rogers, United Feature Syndicate, and Campbell, the crux of the reasoning rested on whether the artist fulfilled the intention of changing the meaning of appropriated material. Embedded in the decisions was the basic aesthetic theory of intentionalism. Its premise, which has already been discussed, is that aesthetic judgments should focus on the intention of the artist producing a work. In Cariou v. Prince, on the other hand, the intention of the artist was noted, but what counted instead was the response to the work by viewers. Here, what is often referred to as “reader-response theory” controlled the outcome. A third alternative is formalism (mentioned earlier and to be discussed further in part III), which focuses on the visible features of objects such as line, shape, color, texture, and composition, to the exclusion of artists’ intended meanings as well as the meanings viewers may interpret through the context of the times and their own personal preconceptions. Although it is possible to consider more than one theory in any situation, doing so requires assigning relative weights and often simply choosing one over the others. Judges cannot avoid these basic theories when assessing objects of art. Their views come from one direction or another whether or not they are aware of the full range of possibilities open to them.
How should jurists deal with the embeddedness of aesthetic theories? One suggestion is for them to become educated in the field, although the extent of their effort that can be expected is questionable given the limited number of cases where they could apply their new knowledge. Another proposal has been to develop a procedural mechanism that would employ groups of experts from the art world to determine what “community of practice” a work under consideration falls within, after which jurists would follow that lead in selecting the theory most applicable to the nature of the work.108 Both of these ideas face the problem that in the end judicial decisions will be determined by one theory of aesthetics or another. A heightened level of expertise does not remove this reality. Still a third possibility for dealing with conflicting aesthetic theories in fair use is to eliminate or minimize the first factor of fair use. This approach, although removing the confusing dimension of transformativeness, would deny the legal recognition for appropriation that its proponents say is deserved. And it would leave more weight placed on economic matters via the fourth factor, which has liabilities disliked by opponents of appropriation.
Support for deflecting the influence of the transformativeness doctrine is more than speculative. In the 2004 case of Kienitz v. Sconnie Nation, the Seventh Circuit Court affirmed fair use for an appropriated photograph based on its market effect but rejected “transformative use” as a rationale. The court stated that it is not one of the four statutory factors that should be considered, and suggested the Second Circuit Court went too far with it in the Cariou case: “We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect).” Otherwise, transformativeness could replace or override the list to the extent that any appropriated work could be justified by claiming fair use.109 Further, in 2015 Prince was in court again (Graham v. Prince et al.) facing a complaint for rephotographing a photo and adding a caption. In 2017, the district court denied his request for dismissal or summary judgment because the contested work “does not make any substantial alterations to the original,” and Prince and the plaintiff were targeting the same market.110 These cases serve as indicators of the unsettled and changing status of fair use in legal thinking about appropriating images.
Outside the legal system, too, there is skepticism about appropriation. Observers ask why artists lack protection for the works they create such that other artists are allowed to take from them. The issue is generally seen as a matter of basic rights rather than theories about art. The rights envisioned draw from assumptions that are not present in the US copyright law that governs fair use. Matters of copyright derive from a statement in the Constitution about promoting progress in the arts, making it an instrumental right, something given to people by the government in the best interest of society. But the basic rights envisioned by opponents of appropriation are often conceived of as natural, and thus more fundamental than instrumentalities. One view traces to the reward expected for the fruits of one’s labor, which holds that someone who creates property has earned the right to control it. This idea is prominent in American thinking, although subordinated in copyright law.111 A related view, which holds more sway in Europe and has philosophical roots in Germany and France, emphasizes a moral right deriving from the personality of an artist that is invested in an artwork.112 Both views trace to something an artist infuses into an artwork, whether it is explained as personality or labor. The work itself, then, bears personification. Either approach to natural rights places greater value on the right of an individual than on a government’s claim to further the common good. Taken from the abstract to the concrete, this means giving priority to artists for what is naturally theirs—their original works—over other artists who appropriate those works and use them for their own purposes.
How this perspective plays out in court is represented by a 2017 case in France, where Koons was sued for copyright infringement over another sculpture from his 1988 Banality series, which also included String of Puppies and Wild Boy and Puppy. The image for Naked, depicting a boy and a girl, was appropriated from French photographer Jean-François Bauret’s work Deux enfants and features essentially the same pose but adds flowers in a bouquet and strewn around the base. When the Pompidou Center publicized an exhibition in 2014 that would include the work, Bauret’s widow filed a claim against Koons and the museum. The charge was against an image of the sculpture in an exhibition brochure and on Koons’s website, but not against the sculpture itself because it was held back from display. The French court deciding the case considered transformativeness as well as freedom of expression, with these principles weighed against intellectual property rights. The ruling was against Koons, noting that it was unclear why he needed the particular photograph in question to make his point and that the image was not well known to the public and, therefore, would not be subject to parody, as well as suggesting the artist’s motivation for appropriation was to save on creative effort.113 The artist was assessed a payment of $29,000 and the Pompidou Center $24,000. A much higher amount would have been possible if the sculpture itself had been exhibited or sold.114 In another case against Koons in France, decided in 2018, his Banality series continued to draw copyright infringement charges, this time for the sculpture Fait d’hiver, in which a pig stands beside a woman lying in the snow. In 2014, photographer Franck Davidovici noticed an image of the work in a catalog promoting a Koons retrospective at the Pompidou Center, noting its similarity to his photo used in a 1985 clothing advertisement. In deciding the lawsuit he brought, the court considered both the parody defense and an appeal to freedom of expression, finding Koons and his codefendants (his own company and the Pompidou Center, the organizer of the exhibition and the publisher of the catalog) guilty and issued fines totaling $170,000.115
Taken collectively, recent legal decisions regarding what constitutes fair use in appropriation art demarcate a domain that includes conflicts and contradictions, especially over permissiveness as determined by the principle of transformativeness. On one hand, permissiveness can be seen as proper growth in the law in keeping with revised views about art that are part of evolving culture. On the other hand is the view that fair use has been opened too wide so that fairness to artists who are appropriated from has been compromised. A critical perspective also sees permissiveness as moving toward monopolism by favoring an art elite at the expense of artists generally, and nullifying rather than supporting the purpose of fair use to promote creativity.
When an artist makes a work by appropriating, something new develops out of what already exists. Progress in the arts, as envisioned in the Constitution and its extension in fair use, has been achieved. What happens when a work made through appropriation is itself subjected to appropriation? Presumably still another work is generated that adds again to the community store of ideas and so on through further versions. But what is presumed in theory has broken down in the practical realm where artists sell their products, when some of the most prominent names in contemporary art who practice appropriation have taken legal action, or threatened it, to prevent other artists from appropriating their productions. Chihuly’s case against a former employee accused the defendant of copying from categories of design he is known for, such as baskets and cylinders, rather than from individual works, as if those categories were his to be protected. In 2010, Koons claimed he was victimized by a business selling bookends shaped like his well-known sculpture Balloon Dog. His attorneys sent cease-and-desist letters to Park Life, a San Francisco store and gallery selling the bookends, and Imm-Living, the Canadian company that produced them. The prospective defendants resisted, noting that the items in question were not competing with Koons’s sales because they were sold for $30 each, whereas Koons’s large sculptures commanded millions of dollars and ten-inch versions were in the $10,000 range.116 The gallery’s attorney lined up expert witnesses, including one with a how-to book on making balloon animals,117 and filed a legal document that stated, “no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain.”118 News coverage intensified, and attorneys weighed in over the unlikelihood that Koons would win in court. He ceased legal action, and the gallery reported that sales of the bookends jumped from three before the legal affair to 150 due to the public attention that was created.119
Hirst, too, has threatened lawsuits against works resembling his own. In 1990, he claimed that advertising for Go Fly (a subsidiary of British Airways) included spots similar to those in his popular spot paintings. The company rebuffed him, saying, “Circles have been used in transport for years—wheels are round.”120 Ten years later when teenage graffiti artist Cartrain was selling collage prints that incorporated an image of Hirst’s famous glittering skull sculpture, For the Love of God, Hirst demanded that the prints be turned over to him along with payment of $3,000. The artist complied.121 Several well-known artists protested that they would create similar works and disregard complaints Hirst might make.122 Cartrain retaliated by stealing a box of pencils from a Hirst installation exhibition and threatening to sharpen them if his forfeited money was not returned. He was arrested for theft estimated at $850,000 for the destruction of a highly valued property, but the police dropped the charges against him, and he used the pencils to sign his artworks.123
Stories like these are colored by elements of humor and theatrics, and curiosity about how the plaintiffs would be received in court. But regardless of legal standing, the intimidation tactics they describe can put a chill on the new use of existing images other artists might envision. To think that balloon dogs and spots are problematic choices for them, as well as other imagery that wealthy and famous artists might claim as their own, limits creativity. Other artists are warned off unless they can afford to battle against the high-priced legal representation their accusers can afford as a business expense even if they lose. When the leaders of appropriationism act to appropriate that art form in itself by denying it to others, the spirit of freedom represented in the act of appropriating has been lost. Put in terms of practical economics, elite names can exercise their wealth and power at the expense of artists in general.
The dominance of an appropriation elite can extend to application of the doctrine of fair use when deciding copyright complaints. The decision in the Cariou case emphasized that not only did the plaintiff make little money from his work while Prince made millions of dollars from his appropriated version of it, but Prince also had a guest list for the opening of his exhibition that included Beyoncé, Hirst, Koons, Tom Brady, Angelina Jolie, Brad Pitt, and various other well-known names.124 A law review article titled “Fair Use for the Rich and Fabulous?” suggests that an appropriator’s celebrity status, or lack thereof, infiltrates judgments in determinations about transformativeness. The authors note that Cariou’s claim against fair use was denied, while a claim made on similar grounds by acclaimed author J. D. Salinger (Salinger v. Colting) about appropriation from his book The Catcher in the Rye was accepted. The explanation offered is that “the problem largely appears to be one of framing. We unconsciously categorize the things to which we relate and accord respect to those things that fit within the categories we deem respectable.”125