Intellectual Property and the Arts
Appropriation
This is the seventh in a series of articles sponsored by the CAA Committee on Intellectual Property (CIP), in which a hypothetical question is posed on some aspect of rights, permissions, fair use, and related topics. We provide a short answer on the legal aspects of the question, followed by commentary from a practical perspective. This feature is intended to provide general information and does not constitute legal advice. If you have specific questions, please contact an intellectual-property attorney.
Q: I am an artist who uses images of other works of art in my own creations. What legal risks might I face when using (“appropriating”) artworks made by others in my own?
A: The short answer is: It depends. Copyright law endows the creator of an original artwork with a number of rights, including, but not limited to, the right to make copies as well as reuse original artwork in subsequent works. While the rights to copy (reproduce) and reuse (creative derivatives) are among the exclusive rights of creators under U.S. copyright law (17 U.S.C. § 106), those exclusive rights are not unlimited: the so-called limitations and exemptions of copyright law are part of the bargain for the protections that creators receive.
The most significant of these limitations is embodied in the fair-use doctrine, which is set out in section 107 of the Copyright Act. The fair-use doctrine permits others to use copyrighted material in a reasonable manner without the owner’s consent for purposes such as criticism or commentary (including parody and satire), news reporting, teaching, scholarship, and research. Section 107 includes examples of factors a court must consider in determining whether a use is “fair.” These factors include, but may not be limited to: (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; and (4) the effect of the use upon the potential market for or value of the copyrighted work. (For more on the “four factors,” see www.collegeart.org/ip/qa3) Copyright law thus acknowledges the value and benefit of both control and lawful use.
Fair use is a concept that is specifically grounded in U.S. law, although the copyright laws of other countries offer somewhat similar exemptions (e.g., “fair dealing” in the U.K.). Copyright laws outside the U.S. may contain different limitations on the use of artwork, depending on where it was created or published. After joining the Berne Convention in 1989, the U.S. now recognizes artwork produced by citizens of countries that are members of the Berne Convention as having the same rights, privileges, and limitations as work created and published in the U.S.
Appropriation often involves using reproductions and occasionally an original work by another artist. Reproductions, including photographs of artwork, as well as the original work, may be subject to copyright protection.1 As noted in previous CIP Q&A columns (e.g., www.collegeart.org/ip/qa4.html), artworks created in the U.S. since 1978 and fixed in tangible form are currently protected in the U.S. even without a copyright symbol or formal registration with the Copyright Office. Works created between January 1, 1924, and December 31, 1977, may also be under copyright, depending on a number of conditions. (See Laura Gasaway’s chart “When U.S. Works Pass Into the Public Domain” in the September 2003 Q&A column or online at www.unc.edu/~unclng/public-d.htm.) Works in the public domain are free and clear of copyright, but they may still be protected by other laws governing property, contracts, and licenses.
If you use identifiable copyrighted artworks or reproductions in your own work, under U.S. law you risk infringing another artist’s copyright unless: (1) that artist or his or her representatives grants you permission to use the work; or (2) your appropriation qualifies as “fair use.” If you do not have permission to use the work and are sued for infringement, the court will consider all circumstances of the use, including the four factors, in determining “fairness.” As noted above, the copyright statute grants artists the exclusive right to authorize or prohibit the preparation of “derivative works,” defined as “a work based on one or more preexisting works … [for example, an] art reproduction, abridgement, condensation or any other form in which the work may be recast, transformed or adapted.”
In determining whether an appropriation artist’s derivation qualifies as fair use, judges consider not only economic factors, but also whether the use made of the original transforms the material into a distinctively new purpose or message apart from the purposes of the original (as in parody, for example). If an appropriator clearly demonstrates that the original has been transformed to serve a new purpose, it is less likely that this use would substitute for the original or detract from its market. The threshold for “transformation,” however, will always be a judgment call based on the circumstances of an individual case.
CIP Commentary
The term “appropriation” is often cited as a symptom of postmodernism. This practice runs parallel with other contemporary creative practices, such as digital sound sampling, and is most commonly embodied in art as assemblage, collage, and digital montage. The practice of appropriating preexisting art to create a new artistic expression has a long and largely uncontested tradition in the history of art, and in some cultural settings the copy was the highest form of praise and honor. New concepts of authorship codified in Western copyright law in the nineteenth century, however, supersede these traditions.
For more than a century, artists, their heirs, or designees have had the right to sue others for taking and reusing their original creations without permission. Conversely, artists may also take and reuse others’ creations, so long as such use is within the parameters of the law.
Despite the risk, artists continue to ignore or test these parameters. Some, like Jeff Koons and Barbara Kruger, have found themselves facing judges in a courtroom, arguing that their new creations are legitimate because of fair use or because the appropriated work is no longer under copyright. In Koons’s notorious “String of Puppies” case, in 1992, the Second Circuit court of appeals rejected his fair-use argument, and his appropriation of a photograph to make three-dimensional statues was held to be infringing. Kruger won her “It’s a Small World” lawsuit on a public-domain defense because the work she had appropriated was foreign.2 While obtaining permission to use previously created work may be anathema to an appropriation artist, the risk of proceeding without clearance may be even worse if risk is not part of your artistic diet.3 Since it is often a reproduction of previous artwork that is incorporated into the new art, you may be dealing with several layers of copyright ownership as well as rights management for the artist’s heirs by organizations such as ARS and VAGA.4 (See www.collegeart.org/ip/qa6.html) The risks of taking and using vigorously protected artwork by well-known artists are greater, of course, than appropriating work by an artist who embraces your philosophy for sharing and free exchange.
Creating appropriation art for online electronic publication or for distribution outside the U.S. invokes international copyright issues—and certainly more questions than answers at this time. Rights organizations have a better chance of enforcing rights with digital creations than they could in print, and digital watermarking makes it easier for owners to keep track of file usage online. The digital world is apt to rely more on contracts and licenses than copyright for maintaining control.
From the standpoint of the appropriation artist, a world based on licenses raises the specter of perpetual control, because licenses do not have a built-in expiration date, as copyright does. Licenses eliminate user rights and disrupt the fragile balance between the grant of rights and the limitations on those rights inherent in copyright law.
Rules of Thumb
- Using works protected by copyright involves risk assessment. An alternative to assuming risk is to obtain permission and pay usage fees if required.
- Section 107 of the Copyright Act sets out four factors used to determine fair use. Where fair use is properly invoked, it represents an exception to the exclusive rights of the copyright owner and, therefore, is a complete defense against a charge of infringement. However, whether fair use is applicable in a particular case can only be definitively resolved in court by a judge. Generally speaking, if a dispute should arise, it is preferable to resolve these matters out of court through an agreement between the copyright owner and the appropriation artist.
- In the U.S., works created and published prior to 1923 are generally in the public domain. These works are free and clear of copyright, but they may be protected under another legal regimeÑfor example, contract law.
- Digital appropriation—taking and using images from the Internet—may be easy to do, but it is also easier for the owner to track unlawful uses.
Endnotes
- Based on a recent judgment in the U.S., straight-on reproductions of two-dimensional artwork in the public domain may not qualify for copyright protection due to lack of originality. Reproductions of three-dimensional art, including works in the public domain, may qualify for copyright protection, given the more complex requirements for recording the image, namely, lighting, shadows, angle, and viewpoint. Bridgeman v. Corel, 36 F. Supp. 2d 191 (S.D.N.Y. 1999).
- Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992). A similar case settled out of court was the 1976 suit filed by the photographer Morton Beebe against the artist Robert Rauschenberg for the unauthorized use of his photograph Diver in Rauschenberg’s “Hoarfrost Series” print Pull. Rauschenberg ultimately paid Beebe $3,000 for the use and gave him a copy of the print. In addition, under the settlement, when Pull is exhibited, the work must be accompanied by the statement “The image of the diver in Pull is after a photograph by Morton Beebe.” This is usually also included in the caption when Pull is reproduced in publications. See also Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002).
- Useful resources include Johnson Okpuluba, &Ldquo;Appropriation Art: Fair Use or Foul?” in Dear Images: Art, Copyright, and Culture, ed. by Daniel McClean and Darsten Schubert (London: Ridinghouse and the Institute of Contemporary Arts, 2002), 201–2, citing Gay Morris, “When Artists Use Photographs: Is It Fair Use, Legitimate Transformation or Rip-Off?” in ARTnews (January 1981): 102–4.
- ARS (Artists Rights Society), 536 Broadway, 5th Floor, New York, NY 10012 (www.arsny.com); and VAGA (Visual Artists and Galleries Association), 350 Fifth Ave., Ste. 6305, New York, NY 10118 (contact: rpanzer@vagarights.com).
Originally published in CAA News 30, no. 2 (March 2005): 4–5.
