The Differences Between Fair Use Of Appropriation And Breaching The Copyright Laws In The Art Industry
In my essay I will be discussing and explaining several examples of art pieces that have been controversial within the artworld for their use of pre-existing works or objects. This practice can on one hand be considered fair use of appropriation whereas others consider it an infringement of copyright. Furthermore, I will also be looking at examples of lawsuits and cases where the decision of copyright law in the art industry is considered to be broken or not. I will also explain what copyright law states and demonstrates in existing artists that use appropriation in their work and how this art movement came about.
To know how appropriation started and is applied in many artists work, today and throughout history, we must have an understanding of the term. My understanding after my extensive research is that it is ‘the use of already materialised images or figures/objects in your own work without major changes being made or even any changes at all.’ This is used to reconceptualise that art to create a new piece of work. This method originated with Pablo Picasso and Georges Braque – both individually using non-art context in their work, such as using pieces of newspaper to make up the appearance of a guitar, a collage done by Picasso in his synthetic cubism period in 1913. Another example from Pablo Picasso was using a piece of cloth onto the canvas in 1912. As well as Picasso, Marcel Duchamp, in 1913, also started appropriation by placing a bicycle wheel on top of a stool.
Obama “Hope” poster – Shepard Fairey
Shepard Fairey is an American artist, who is most famous for painting the Barack Obama “Hope” poster (see above). This piece is a recent example of the fine line between copyright and fair use of appropriation.
Claims by the Associated Press which accused Fairey of copyright infringement then sought compensation which led to Fairey suing for a declaratory judgement. This declaratory judgment was sought to show his poster was fair use of the original photograph. Fairey asserted in this case that he had not used the shot by Mannie Garcia, but had in fact used another Associated Press image from an April 27th 2006 event, at which Mr Obama was seated next to George Clooney. As reported New York Times January 13th, 2011 no judgement was made in this case in which the judge urged both parties to reach an out of court settlement. It is noteworthy that when recommending a settlement, the Judge asserted that any forthcoming judgement would likely be in favour of Associated Press New York Times May 29th 2010 – Dave Itzkoff Settlement details were not made public however it is known that the parties agreed a split in the profits for this work.
‘in January 2009, the photograph on which Fairey based the poster was revealed: a June 2006 shot by former Associated Press freelance photographer Mannie Garcia, In response to claims by the Associated Press for compensation, Fairey sued for a declaratory judgement that his poster was a fair use of the original photograph. The parties settled out of court in January 2011, with details of the settlement remaining confidential.’ Wikipedia website (2019).
Subsequently, Fairey has pleaded guilty to destroying and fabricating documents during his legal dispute with Associated Press which resulted in one count of criminal contempt, a fine of $25,000, 300 hours community service and two years’ probation. The artist withdrew his assertion of using a different photograph for his Obama Poster and admitted that having realised this error he attempted to hide this mistake by fabricating and destroying evidence.
This case offers useful research towards my assertion that appropriation of someone else’s work can be extremely similar to copying for one’s own gain. It is complicated by Fairey’s admission of contempt and that no formal judgment was made. The poster was not officially adopted by the Obama team as they had concerns relating to copyright, however it did become the unofficial face of the campaign and merchandising such as clothing, whereas the original photo was one of many taken for media such as newspapers. Both, in effect, had the purpose of advertising, therefore there wasn’t enough change in purpose for the poster to be appropriation rather than copyright for the artists own gain. Fairey used different media and techniques to transform the original photographic image – he already had an established audience and was not looking to adversely affect Garcia’s exposure or profit. In fact, Garcia has stated publicly that he was “so proud of the photograph and that Fairey did what he did artistically with it” Wikipedia website, W. (2019). “Appropriation in art and history refers to the practice of artists using pre-existing objects or images in their art with little transformation of the original” Tate. (2019).
On the Tate Museum website, they give an example of appropriation going all the way back to the Cubist movement circa 1912. A series of works by pioneer cubist artists Pablo Picasso and George Braque in which they took real life objects such as extracts or cuttings from newspapers which were incorporated into their collages as representations of themselves i.e. a newspaper as a newspaper. The use of everyday manufactured objects was developed further by the Readymades movement. This term was first used by the artist Marcel Duchamp to describe his own works. An early example being his 1917 piece entitled “Fountain”. This installation consisted of a men’s urinal placed on the floor as opposed to fixed to the wall and was signed “R Mutt 1917”. The Fountain piece did not credit the manufacturer of the urinal which suggests the use of someone else’s work for self-gain. However his intent was not for financial gain, but “I was drawing people’s attention to the fact that art is a mirage.” This shows that the purpose of the urinal had changed, therefore it should be considered a fair use of appropriation and not a breach of copyright law. Fountain 17. (2019).
Moving onto another appropriation artist Andy Warhol Arts Law Centre of Australia. (2019). “copyright does not protect ideas and styles” “copyright means that you only have the right to do certain things with your work. You have the right to adapt your work”.
Warhol is famous for stylization of images that come from already existing brands and pictures. His main process was using readymade images and reprinting with the addition of colour and collaging them together. This is an example of fair use.
Appropriation in art has lasted throughout history although it increased in prevalence around the twentieth century, famously due to ‘Dada artists like Marcel Duchamp.’
Andy Warhol maintained this practice of appropriation. Taking visuals to generate new pieces increased in controversy with the evolution of consumerism.
The evolution of consumerism led to an increased demand and production of art pieces. This was followed by branding becoming a fundamental aspect of artists work around the mid twentieth century. Its purpose was to help compete against other businesses. In this process, to protect people from profiting off others’ work, it made the art of appropriation much more complicated.
In 1962 Andy Warhol created his famous Marilyn series, based off a publicity shot for her film Niagara. While he transformed the image by transferring it onto screen prints and canvases, the image used as a stencil was not legally his. This begs the question of who the profits of his artwork should go to, either the artist or the photographer. The rights to Warhol’s art belonged to himself, however he didn’t own the source material. This is not the only case with this specific artist, his famous soup can art piece used Campbell’s logo. However, the purpose was changed in this example due to applying it onto canvas and screen-prints, but this time it was his photograph and was made to produce art rather than using someone else’s art (photograph) of Marilyn Monroe to construct his own work for money. Kaplan, I. (2019).
“Copyright law is complex, totemic, and the source of nearly unending litigation. With relative regularity, appropriation artists like Jeff Koons or Richard Prince end up in the headlines due to allegations of improper use of their source material”. This quotation states examples of artists work breaching copyright law – one being Richard Prince who did not understand, or simply ignored, the fine line between fair use of appropriation and straight copying. This artist “Richard Prince, who has pushed the legal limits of artistic appropriation for decades” Nytimes.com. (2019). Mr Prince used an image in his exhibition that belonged to a photographer on Instagram, and enlarged the image onto a large canvas with no change. This relates to my earlier example of Andy Warhol copying an image of Marilyn Monroe and only changing the colour; the difference between these examples are small but they had different outcomes. The photographer on Instagram was Donald Graham and when the lawsuit came to a decision the United States district judge Sidney H. Stein challenged that premise, writing: “the primary image in both works is the photograph itself. Prince had not materially altered the composition, presentation, scale, colour palette and media originally used by Graham”.
This gives an example of the difference between Andy Warhol’s fair use of appropriation and Richard Prince who breached the copyright law.
A further example of a copyright case from Richard Prince was Cariou vs Prince over a photo by Patrick Cariou in 2000 and Richard Prince’s adaptation in 2008.
This case went to a federal appeals court where they said twenty five of the thirty works by Prince made fair use of Cariou’s photographs, this decision was later reversed at a lower court ruling holding Prince liable for infringement. Undecided on the matter of the remaining five works from Prince whether they were fair use of appropriation or not, the lower court was ordered to apply a broader standard than previously used to judge fair use. The ruling was in favour of the appropriating artist showing a broad view on the test for fair use determined Prince’s work qualified from Cariou’s original work. The court went on to say that supreme court rulings have emphasized that to qualify for fair use, “a new work generally must alter the original with new expression, meaning or message”. As well as saying “our observation of Prince’s artworks themselves convinces us of the transformative nature of all but five” the appealing court added that Prince’s work had a different character, giving different meaning to Cariou’s original photographs.
Reflecting upon this research adds further evidence to the fine line in determination between copyright infringement and fair use of appropriation. This outcome is further echoed by my research into various artists who were prosecuted for copyright, with examples both for and against. My assertion being that verdicts on cases often come down to opinion rather than fact.
This conclusion is supported by other researchers, such as: ‘if an individual appropriates another’s artist images and uses those images to form his own work of art, is this art or piracy?’ This post, as with my own research, goes on to explain the difficulties faced when considering cases such as Richard Prince and his “copyright controversies”. Using this example he is able to highlight the problems that copyright law poses.
Differences between fair use of appropriation and breaching the copyright laws within the art world have changed over time. As a result of these changes there are cases that constituted fair use at the time of their hearing that would have received a different verdict if heard at another time in history. My understanding for the modern definition is dependent on the purpose of the art piece itself. Considerations being whether the original piece’s value will depreciate as a consequence of the production of similar works? Furthermore, does the new piece offer enough variation so as to portray a different message to its viewers?
Changes in technology and advances in certain media have led to a more common source of contention, between photographers and artists. tsy.net – ‘many of the most significant cases assessing fair use have common origins: a photographer finds their work was used by another artist to make derivative work without their authorization. Although photographers have attempted to argue that the law forbids this unauthorized use, the evolution of fair use over the years has arguably bended in the favour of the appropriator.’ Many cases and lawsuits are a result of artists using photographers’ work, crucially, without seeking to gain approval from the originator. As illustrated in the “Obama Hope” poster, where the artist used a photographer’s work without permission or credit to the source.
The advice I would offer aspiring artists and designers, following on from my research into copyright and appropriation, would be to communicate their source and consider deeply the originality of their new creation in changing the purpose of the existing source material. These examples, I feel, demonstrate enough to deter those who seek to use other people’s creations for financial gain, exposure and fame, whilst, in turn, encouraging those artists seeking to produce original pieces from the inspiration of an existing source material.
The choice of using Marcel Duchamp as an example for my essay is due to his original perspective on this topic. His impact as a forerunner in this field helped influence many artists who came after him. Duchamp’s interpretation of appropriation, following his “fountain” art piece, was in contrast to the established thinking of the time. His piece the “Fountain” utilised a urinal turned upside down and set on a slab thus creating the appearance of a fountain. It is his use of the pre-existing everyday objects that led people to question his originality of thought and ownership in using these existing objects. His work was controversial at the time of its creation, and since, with people contesting whether it is plagiarised or original. His work, rejected by the exhibition committee led Duchamp to respond, “whether Mr Mutt with his own hands made the Fountain or not has no importance, he chose it.” En.wikipedia.org. (2019).
His point was that taking an object from life (in this case a men’s urinal and using it to make a water fountain) creates a different point of view and therefore changing its purpose creates a new piece of art from that original object. This is a brilliant explanation from a well-respected artist on what appropriation is and how it is different from breaching copyright in the art community.
This artist was part of a greater movement called ‘Dada’ that was all about appropriation using ordinary objects to create art. The movement influenced a group of artists later in history called surrealists who used found objects in their art also. So from one artist to another and one art movement to another, this technique and perspective of art appropriation has been passed on from people like Pablo Picasso and Marcel Duchamp all the way to the artists of today.
Another example of an artist that uses appropriation is American artist Jeff Koons. This well-established artist is known for working with the medium of stainless steel to create balloon animals. He was a defendant in a copyright case Rogers against Koons, which was over him buying a photograph on a card featuring a group of puppy dogs and the owners with a copyright symbol on it. He ripped off the copyright notice and proceeded to hire people to construct four big scale sculptures naming it ‘A string of puppies’. In this case he chose the topic the colour, size and material for this piece.
In conclusion I have discussed the differences between fair use of appropriation and breaching copyright law in the art industry.
As discussed in this essay many of the famous significant cases assessing fair use of appropriation have common origins, using work from another artist for their own self gain without authorization.
I have mentioned some artists that have used appropriation fairly and others knowingly breaking copyright law.
Appropriation is subjective making these cases I have discussed difficult to summarise due to the fact it is influenced by personal feelings and opinions by the public and judges. This difference of opinion is clearly demonstrated in Cariou vs Prince with contradictory verdicts being reached in court.
My advice following this research to those wishing to create original pieces form pre-existing works is to give careful consideration to the source, crediting where possible and offering a new perspective and purpose to their new works. This may help in reducing exposure to breach of copyright claims, however they are still subjective.
- En.wikipedia.org. Available at: https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster [Accessed 23 Jun. 2019].
- En.wikipedia.org. Available at: https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster [Accessed 23 Jun. 2019].
- Appropriation – Art Term | Tate. [online] Available at: https://www.tate.org.uk/art/art-terms/a/appropriation [Accessed 23 Jun. 2019].
- Marcel Duchamp – Fountain (1917) | Fountain 17. [online] Available at: http://www.fountain17.com/about/duchamp-and-fountain/ [Accessed 23 Jun. 2019].
- What is copyright? – Arts Law Centre of Australia. [online] Available at: https://www.artslaw.com.au/legal/raw-law/what-is-copyright/ [Accessed 23 Jun. 2019].
- The Complex World of Art Copyright, Explained. [online] Artsy. Available at: https://www.artsy.net/article/artsy-editorial-art-copyright-explained [Accessed 23 Jun. 2019].
- Copyright Case Over Richard Prince Instagram Show to Go Forward. [online] Available at: https://www.nytimes.com/2017/07/20/arts/design/richard-prince-instagram-copyright-lawsuit.html [Accessed 23 Jun. 2019]
- Journal of Business & Intellectual Property Law | Wake Forest School of Law. [online] Ipjournal.law.wfu.edu. Available at: http://ipjournal.law.wfu.edu/ [Accessed 23 Jun. 2019].
- Found object. [online] Available at: https://en.wikipedia.org/wiki/Found_object [Accessed 23 Jun. 2019].