Appropriation (art) - Appropriation Art and Copyrights

Appropriation Art and Copyrights

Despite the long and important history of appropriation, this artistic practice has recently resulted in contentious copyright issues which reflects more restrictive copyright legislation. The U.S. has been particularly litigious in this respect. A number of case-law examples have emerged that investigate the division between transformative works and derivative works. Many countries are following the U.S lead toward more restrictive copyright, which risks making this art practice difficult if not illegal.

Andy Warhol faced a series of law-suits from photographers whose work he appropriated and silk-screened. Patricia Caulfield, one such photographer, had taken a picture of flowers for a photography demonstration for a photography magazine. Warhol had covered the walls of Leo Castelli's New York gallery in 1964 with the silk-screened reproductions of Caulfield's photograph. After seeing a poster of their work in a bookstore, Caulfield claimed ownership of the image and while Warhol was the author of the successful silk screens, he settled out of court, giving Caulfield a royalty for future use of the image as well as two of the paintings.

On the other hand, Warhol's famous Campbell's Soup Cans are generally held to be non-infringing, despite being clearly appropriated, because "the public was unlikely to see the painting as sponsored by the soup company or representing a competing product. Paintings and soup cans are not in themselves competing products", according to expert trademark lawyer Jerome Gilson.

Jeff Koons has also confronted issues of copyright due to his appropriation work (see Rogers v. Koons). Photographer Art Rogers brought suit against Koons for copyright infringement in 1989. Koons' work, String of Puppies sculpturally reproduced Rogers' black and white photograph that had appeared on an airport greeting card that Koons had bought. Though he claimed fair use and parody in his defense, Koons lost the case, partially due to the tremendous success he had as an artist and the manner in which he was portrayed in the media. The parody argument also failed, as the appeals court drew a distinction between creating a parody of modern society in general and a parody directed at a specific work, finding parody of a specific work, especially of a very obscure one, too weak to justify the fair use of the original.

In October 2006, Koons won one for "fair use." For a seven-painting commission for the Deutsche Guggenheim Berlin, Koons drew on part of a photograph taken by Andrea Blanch titled Silk Sandals by Gucci and published in the August 2000 issue of Allure magazine to illustrate an article on metallic makeup. Koons took the image of the legs and diamond sandals from that photo (omitting other background details) and used it in his painting Niagara, which also includes three other pairs of women's legs dangling surreally over a landscape of pies and cakes.

In his court filing, Koons' lawyer, John Koegel, said that Niagara is "an entirely new artistic work... that comments on and celebrates society's appetites and indulgences, as reflected in and encouraged by a ubiquitous barrage of advertising and promotional images of food, entertainment, fashion and beauty."

In his decision, Judge Louis L. Stanton of U.S. District Court found that Niagara was indeed a "transformative use" of Blanch's photograph. "The painting's use does not 'supersede' or duplicate the objective of the original", the judge wrote, "but uses it as raw material in a novel way to create new information, new aesthetics and new insights. Such use, whether successful or not artistically, is transformative."

The detail of Blanch's photograph used by Koons is only marginally copyrightable. Blanch has no rights to the Gucci sandals, "perhaps the most striking element of the photograph", the judge wrote. And without the sandals, only a representation of a women's legs remains—and this was seen as "not sufficiently original to deserve much copyright protection."

In 2000, Damien Hirst's sculpture Hymn (which Charles Saatchi had bought for a reported £1m) was exhibited in Ant Noises in the Saatchi Gallery. Hirst was sued for breach of copyright over this sculpture despite the fact that he transformed the subject. The subject was a 'Young Scientist Anatomy Set' belonging to his son Connor, 10,000 of which are sold a year by Hull (Emms) Toy Manufacturer. Hirst created a 20 foot, six ton enlargement of the Science Set figure, radically changing the perception of the object. Hirst paid an undisclosed sum to two charities, Children Nationwide and the Toy Trust in an out-of-court settlement. The charitable donation was less than Emms had hoped for. Hirst sold three more copies of his sculpture for similar amounts to the first.

Street artist Shepard Fairey’s iconic Hope poster of Barack Obama is symbolic of Obama’s 2008 presidential campaign. The image along with words like “hope” or “progress” in some versions was produced on posters, stickers and t-shirts. In 2009, the Associated Press accused Fairey of copyright infringement saying the poster was based on a 2006 image of one of their photographers, Mannie Garcia. Fairey denied appropriating the image and claiming fair use sued the Associated Press. The civil lawsuit was settled out of court with Fairey agreeing not to use unlicensed Associated Press images and to share the rights for his image of Obama going forward. The financial terms of the settlement were not released. The Smithsonian Institute’s National Portrait Gallery in Washington acquired a collaged version of the image in January 2009.

On the other hand appropriating a familiar object to make an art work can also prevent the artist claiming copyright ownership. Jeff Koons threatened to sue a gallery under copyright, claiming that the gallery infringed his proprietary rights by selling bookends in the shape of balloon dogs. Koons abandoned that claim after the gallery filed a complaint for declaratory relief stating, "As virtually any clown can attest, 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."

In 2008, Patrick Cariou sued Richard Prince, Gagosian Gallery and Rizzoli books for copyright infringement, claiming that Prince’s appropriation of some 40 photographs of Rastafarians taken from Cariou’s book Yes, Rasta failed to meet the terms of the “fair use” doctrine, which provides an exception to copyright law. The images in question comprised the series of “Canal Zone” paintings in which Prince variously painted gas masks and guitars over Cariou's and Rastas from other sources (including a Bob Marley book), added in oversized hands, and pasted on images of naked women and male torsos, among other alterations.

In March 2011, Judge Deborah Batts ruled in favor of Cariou, arguing that Prince’s series failed to meet the criteria for fair use because they were not sufficiently transformative of the original works and because Prince did not intend to comment on them. Perhaps even more surprisingly, Batts decided that Gagosian was guilty of acting in bad faith for selling the works of a “habitual user” of non-copyrighted imagery without inquiring into its permission status. Gagosian is also appealing the ruling. Three judges for the U.S. Court of Appeals for the Second Circuit rejected Cariou’s motion to dismiss Prince’s right to an appeal, writing that “there remains ‘a continuing controversy capable of redress by this Court.’”.

Prince’s attorney on appeal, Josh Schiller, of Boies, Schiller & Flexner, says that Judge Deborah Batts', 'far-reaching' decision does not reflect time spent examining the paintings themselves before taking it upon herself to order that the paintings be confiscated and destroyed and for that reason did not see that any reasonable person would find a difference between Prince’s works of art and Cariou’s photographs. “Appropriation art is a well-recognized modern and postmodern art form that has challenged the way people think about art, challenged the way people think about objects, images, sounds, culture,” says Schiller. “Art is always meant to be a reflection of culture or to move culture ahead, contribute to culture. I think what judges need to know is that appropriation art has its place on the shelf, in terms of adding and creating and inspiring people to make art, which is the purpose of the Copyright Act.” The Andy Warhol Foundation, Google, and the Association of Art Museum Directors have all filed supporting briefs on behalf of Prince's appeal.