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Appropriation and Art - What We Can Learn from Famous Legal Cases

  • appropriation art terms media press form appropriation images use history culture create
  • appropriation art terms media press form appropriation images use history culture create
January 17, 2016
Behind the pseudonym of Lor Dethal lies Nemanja Torlak, a writer for Widewalls intrigued and moved by diversity in art and in the lives of those who create it. It is often the unexpected that come forth and surprise us, and art is a world that allows it and makes it possible. David beats the Goliath daily, and writing about it is a pleasure.

The very definition of art itself implies that through the creation of visual, auditory of performing artifacts, or artworks, the author is displaying a personal representation of the matter at hand using one’s own imaginative and technical skills. It may even be said that artists are trying to mimic a certain quality, and although they represent something that already exists, be it an emotion, a person, or even another work of art, they instill their piece with a new value, in some way enriching the world we live in. Some, however, go a bit further than mimicking and create art by appropriating work of others and adding their own touch to it. Given the nature of art, drawing a line between what is art and what is allegedly art can be difficult, to say the least, and often equals a blur rather than a straight edge. This is where law meets art, and in a modern society, where rules are strictly defined and broken on a daily basis with the assistance of so many gadgets and mediums, the necessity for mutual ground between the two rises. Whether you are an artist, a lawyer, or a spectator of both worlds, colliding with either one is inevitable, and the effects they can have on individuals and each other are sometimes enormous. In the next lines, we will revisit both recent and old cases of artists turning to Lady Justice for various reasons, how their appeals failed in the legal system and how one side influenced the other.

duchamp appropriation
Left: Patrick Cariou – Yes Rasta, 2000 / Right: Richard Prince – Graduation, 2008. Photo via cardozoartlawsociety.tumblr.com

Origins of Appropriation in Art

It might stand as a frightening term when used in the courtroom, but appropriating art has been a valid artistic technique since the early 20th century, drawing its roots from the works of Pablo Picasso and Georges Braque. Although their appropriation focused on implementing objects from a non-art context into their compositions such as Guitar, Newspaper and Glass and Bottle, the style broadened to taking over an existing work of art in the later years. By 1980s, the term appropriation art was in common use and stood as a challenge to originality. Artists like Sherrie Levine often quote entire works in their own work, like photographing photographs of Walker Evans. She addressed the act of appropriating as a theme in art, and though it might lead to legal complications, it certainly has become a trending style over the years.

judges gavel duchamp appropriation
“…whether or not the artist infringes copyright or moral rights of the original owner can be a slippery slope.”

The Art of Law

With the number of artwork made to this day, it’s not so easy to be original and successful when it comes to creating art. Add to it the ease with which one can access the existing art catalogue, and you can see how and why this style has notably developed in the past few decades. Far from saying that the style and the art created in this manner aren’t original; Sam Leach has graced us with the award winning Proposal for Landscape Cosmos, Shepard Fairey made the legendary Hope that portrays the 44th US president, and many other pieces that fall under this category will be marked in history as works of art, recognizing the appropriate artists as their creators. Yet when creating artwork in such manner, whether or not the artist infringes copyright or moral rights of the original owner can be a slippery slope.

Along the increased art appropriations, the field of the law that deals with copyright issues has seen a rise in its application, and artists don’t shy from resorting to it. Much like cigarette packets having warning messages of their unhealthy influence, artists are trying to fend off misuse of their work by posting notices of copyright protection. The warnings haven’t stopped people from smoking, just like the notices haven’t stopped people from appropriating other’s work. However, with each offense and processed case, the law on art ownership and illegal appropriations expands and fortifies, leaving the creative minds and their work more protected and secure.

duchamp appropriation
Left: Adam Pynacker – Boatmen Moored on the Shore of a Lake, 1660. Photo via artslaw.com / Right: Sam Leach – Proposal for Landscaped Cosmos, 2010. Photo via rumblingkeithy.blogspot.rs

What it Looks Like in Practice

Law and art have always had a curious relationship, and with the artist’s inclination towards pushing the limits of the law, there have been many courtroom battles regarding different fields of art. When do you have a permission to use the artwork in film? Do you own a graffiti made on someone else’s property? These are all valid questions deserving of attention, luckily already answered. Starting a legal action based on an appropriated artwork is a different matter, and it often requires a deep analysis of the original and the piece made upon it. We’ve seen different layers of appropriation itself, ranging from appropriating body features for a music video to designing red carpet dresses based on a mural. The lawsuits can be exhausting and sometimes last for years. In 2008, photographer Patrick Cariou sued Richard Prince and the Gagosian Gallery for copyright infringement. Prince had appropriated 40 of Cariou’s photos altering them variously, and though the judge ruled in favor of Cariou in 2011, the appeals court largely overturned the original decision in 2013, deciding that most photographs suffered sufficient transformation and were thus under permitted use. It goes to show just how thin of a line stands between misuse and originality.

A good example of this would be Andy Warhol’s appropriated work. In 1963, Warhol had exhibited a collection containing silk-screened reproductions of Patricia Caulfield’s flower photograph. Although Warhol was the author of the successful silk-screen, Caulfield claimed the ownership of the image, and they settled out of court. On the other hand, Warhol’s famous Campbell’s Soup Cans are generally held to be non-infringing, regardless of the obvious appropriation. The reason for this, according to lawyer Jerome Gilson, was that the painting and the soup depicted on it were not competing products, and the public was unlikely to see the painting as representing the soup company.

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“…recent and old cases of artists turning to Lady Justice for various reasons.”

What to Take Back

How one should proceed when it comes to appropriating artwork really is a case-to-case based dilemma. There are obvious boundaries that cannot be crossed, and they can be found in the copyright infringement part of the law, but many of these appropriations are a subject of debate. Given there were so many of them in the past, recent disputes of this kind often relied on case-law precedents, trying to invoke a ruling based on a previous ruling in a similar case. With art’s limitless nature and many questions posed in regard to appropriation (is the work protected by copyright, are you using the whole or a substantial part of the work, etc.), the best advice to anyone involved would most likely be: hit the books, study the law that is already in place, arm yourself with knowledge of many previous unique cases of legal and illegal appropriations of art and hope for the Lady Justice to tip her scales in your favor.

Editors’ Tip: Kembrew McLeod (Editor) and Rudolph Kuenzli (Editor) – Cutting Across Media: Appropriation Art, Interventionist Collage, and Copyright Law

In this collection of essays, the leading academics, critics, and artists offer a historical collage of appropriation tactics across the variety of media and genres. They investigate the issues of appropriation in popular and avant-garde culture, in altered billboards, and the works of the renowned painter Chris Ofili, in hip-hop, and the compositions of Béla Bartók and Zoltán Kodály, and in remixed news broadcasts, pranks, audio mash-ups, culture jamming, and a number of other cultural forms. These borrowing practices are often the subject of copyright and trademark law disputes, and intellectual property issues. The contributors of this volume, among others, are the essayist and novelist Jonathan Lethem, the cultural critic and poet Joshua Clover, the filmmaker Craig Baldwin, the hip-hop historian Jeff Chang, the sound collage artist and ‘zine-maker Lloyd Dunn, and Negativland, the collective sued in 1991 for sampling U2 in a satirical sound collage.

Featured images: Theirry Guetta – Run DMC, 2011; Glen E. Friedman – Run DMC, 1985. Photos via techdirt.com. All images used for illustrative purposes only.