(Copy)wrong? Authorship, Appropriation, and ‘Fair’ Use

Or,

The American legal system’s shortsighted approach to aesthetic judgment and the consequences of Copyright Law on the creative processes of artistic production.

Nicole Bennett* ARH411: Fall 2010

*Legal Disclaimer: The author asserts no education or basic knowledge in the American legal system, and any amendments, changes, or revisions to current laws or doctrines shall not be understood as feasible, valid, or informed. The information provided should be considered highly biased, idyllic, and even, perhaps, completely arbitrary.

“The hierarchy of dual oppositions always reestablishes itself. Unlike those authors whose death does not await their demise, the time for overturning is never a dead letter.” –Jacques Derrida1

Is imitation really the sincerest form of flattery? The emergence of an increasing

number of lawsuits, legislation, and cases regarding the ‘theft’ of proscribed imagery and

copyright infringement in postmodern artistic practice indicates otherwise. Beginning in the

1960’s, and proliferating in the late 1980’s, the prevalent accusation of, and sensitivity to,

copyright infringement has resulted in contentious debate: in the arena of artist versus artist,

who does the law serve? And, more pointedly, does it serve them fairly? The collision of

visual art and legal right is perhaps most clearly evidenced within the sphere of current

copyright law, and the problematic nature of authorial ownership. When viewing art through

the legal lens of copyright, two factors present themselves with some urgency: the question

of rationales for copyright (as contingent upon the legal definition of what ‘art’ is, or ‘is

not’), and the effectiveness of such laws, as originally intended to protect artistic works (as

an appropriate and inclusionary category). Steina Teilmann notes, “It is essential that the law

continues to be assessed to ensure that copyrights’ protection of art is satisfactory not only to

the mechanics of copyright law,” she furthers, “but to artists, and the public as well.”2

However, before any final judgments can be made regarding the success or failure of

copyright law today, an understanding of the past two decades of artistic theory must first be

established, as well as a revisionary outlook on the principle objectives of copyright law, and

an evaluation of recent scholarship and relevant case material.

1 Jacques Derrida, Positions (Chicago: University of Chicago Press, 1981), 42. 2 Ed. Stina Teilmann, Art and Law: The Copyright Debate. (Copenhagen: DJØF Pub, 2005)

I. Postmodernism: Daguerreotype of the Plight of Value

“If the artist is not to lose much of his ancient purpose he may have to plunder the arts to recover the imagery which is his rightful inheritance.” – Richard Hamilton3 Descendant of the early twentieth century Dadaists, the Duchampian model of ready-

made context, and the predicament of Walter Benjamin’s diminishing aura, postmodern art

inherits a long tradition of renegade artistic strategy and questioning of authority. By the

1960s, the rise of pop art, typified by Warhol’s soup cans, Lichtenstein’s comics and

Rauschenberg’s collages, provided a new, albeit more contentious, vocabulary that artists

used to comment on the world around them. Situationist Guy DeBord’s theory of

détournemont, along with Derrida’s Deconstruction of traditional societal structures,

provided ample ammunition for the postmodernists’ systematic assault on the modernist

doctrines of transcendence, autonomy, and originality that dominated artistic theory the first

half of the twentieth century. Following the lead of contemporary conceptual artists and

heavily influenced by the poststructuralist theories of authorship, many postmodern artists

increasingly looked to ready-made images or ideas as the “data of personal experience, as

well as the raw material of one’s own expressive work.”4

This phenomenon, what we now call ‘appropriation,’ is not a strategy unique to

postmodern art; for centuries artists have copied the art of the past, from Aristotlean mimesis,

emulating masterworks in fine art academies and 19th century French salons, yet it has

dominated the cultural, aesthetical, and ethical consciousness of art since the 1980’s. The

tactical appropriation of postmodern artists – the blatant looting of hundreds of images from

both the history of art and the mass media – appeared different both in intention and in

practice then ever before. In the visual arts, postmodernism identified with a specifically

3 Richard Hamilton, Collected Words, 1953-82, (London: Thames & Hudson, 1982), 42. 4 Joseph Fineberg, Art Since 1940: Strategies of Being, (New York: Henry A. Abrams, 2000) 467.

critical position to dominant culture. The major art critics and historians of the postmodern

period5 theorized this aspect of postmodernism as principally residing in its “dismantling of

reified, idealist conceptions enshrined in modernist aesthetics,”6 such as issues devolving on

presence, subjectivity, authorship and aura. Indeed, as quoted by Michael North, “The single

most influential contemporary statement on authorship is still the obituary that Roland

Barthes pronounced over thirty years ago.”7 The ‘modernist’ avant-garde no longer exhibited

adequate adversial character in respect of the increasingly commercialized culture;

postmodernist artists employed more oblique strategies of dialectical re-duplication in efforts

to subvert the means of the dominant mass media. By appropriating the media’s own images,

styles and conventions of representation, postmodern artists exposed the hollowness of

stereotype and subliminal process of cultural assimilation through the cultivation of irony,

aesthetic distance, ambiguity and contradiction. The postmodern artist, such as those to be

discussed in the following pages, intended to sabotage the modernist contingency upon

originality, putting into question a Barthesian model of authorship and the presumption of

ownership of image. Their motive was not forgery8, but rather a deliberate intention of

inauthenticity. Perhaps seen more clearly as the conscious dismissal of cultural values, the

postmodern artist went rogue; shamelessly, and undeniably, pilfering the glut of everyday

5 Abigail Solomon-Godeau, in “Living with Contradictions: Critical Practices in the Age of Supply-Side Aesthetics,” Social Text, No. 21, 1989. Solomon Godeau identifies the conception of postmodernism in the visual arts as a critical practice was established in the following seminal essays: Douglas Crimp, “Pictures” (1979); Benjamin H. D. Buchloch, “Allegorical Procedures: Appropriation and Montage in Contemporary Art” (1982); Hal Foster, “Postmodernism: A Preface” from Anti-Aesthetics (1983); Frederic Jameson, “Postmodernism” (1984). See, further, David Evan’s Appropriation: Documents of Contemporary Art (2009) that includes excerpts of the works listed above, along with various contemporary works as well. See works cited for full bibliographic citation. 6 Abigail Solomon-Godeau, in “Living with Contradictions” 193 7 Michael North, “Authorship and Autography” PMLA, (Vol. 15, No. 5, 2001), 1377. 8 It should be noted that the difference between the intention of ‘appropriation’ and ‘forgery’ or plagiarism,’ in respect to visual art, is identified by the intention to copy an image and commercialize it under the name of the original creator, and seeking profit from such exploitation. See Marilyn Randall, Pragmatic Plagiarism: authorship, profit, and power (Buffalo: University of Toronto Press, 2001) for a comprehensive analysis of plagiarism and commodification of artistic works.

images as representational means for ‘High art,’ the residue of our media-saturated society.

The birth of social awareness must be at the cost of artistic Value.

Inevitably, the questioning of authorship and originality in artistic production brings

to light how issues regarding reference and quotation might fare in the legal arena. Martha

Buskirk examines the complexity of the legal status of artistic acts of reproduction, “where

the gesture of reframing may result in a provocative ambiguity rather than a singular or easily

identified message, present a vexing set of issues,” she states, “since it is unclear how far the

standard of transformative use may be stretched to apply to works where the alteration has

more to do with context than with evident visual modification of the underlying material.”9

Indeed, imposing restrictive copyright limitations on the use of images and the artistic

freedom to transform them renders the concepts of comment, critique, parody, and satire

unfeasible. When this happens, the intellectual property rights in images become more a form

of censorship and social control and less a facilitation of artistic production. So, as Fiona

Macmillian pointedly asks, “What is one to do with…works that explicitly play with the

cultural significance of copyright and the technologies of reproduction and proliferation?”10

II. All is Fair in Art and Law

“If you take someone else’s image, it’s appropriation…If someone takes your image, it’s stealing.” – Appropriated from MONDO 200011 Like it or not, protected images of all kinds now pervade the fabric of our society.

“Copyright law (and, by extension the legal conception of authorship)” according to Buskirk,

“invites examination because of how it both responds to and makes possible the traffic of

9 Martha Buskirk, “Creative Intent: The recent Fortunes of Appropriation in the United States” ed. Daniel McClean, The Trials of Art (London: Ridinghouse, 2007), 235. 10 Fiona MacMillan, “Artistic Practice and the Integrity of Copyright Law” ed. Stina Teilmann, Art and Law: The Copyright Debate, 18. 11 As quoted by Marilyn Randall, Pragmatic Plagiarism, 260.

images that have come to dominate late-twentieth-century society.”12 Appropriation art, in

incorporating imagery from our media-based environment, risks becoming entangled in a net

of legal limitations and implications surrounding copyrights. And although there is no doubt

that some degree of protection of original creative works is necessary for economic incentive,

the current codes of copyright law and the doctrine of Fair Use seem ill-equipped to

adequately delegate which artistic works are definitively legal or not. “The role and purpose

of copyright law needs constant reassessment,” Macmillan continues, “By making some

observations as the rationale of copyright. If it is generally accepted that the role of copyright

law is to encourage [emphasis added] creativity, it must be shown it does function to this

end.”13 However, it would seem as though the original intention of copyright law, to this

effect, falls short if various forms of contemporary art are excluded from protective rights. “If

the law of copyright fails to acknowledge the specific nature of the work of art as an object of

protection,” Macmillan concludes, “the law needs to be amended.”14

It is clear that an intransigent conception of copyrights-as-property rights will tend to

stifle rather than promote the very property it seeks to protect. For this reason, the American

judicial system has developed the concept of ‘fair use’ as an exception that allows for the

use, in certain circumstances, of copyright-protected material. The early definition of fair use,

as derived from Justice Story’s decision in Folsom v. Marsh15 can be found in a case as early

as 1841; a decision in which the law revisions and Copyright Act of 1976 did not stray very

far.16 The current statutory definition of fair use clearly provides what Buskirk calls, “a very

general set of guidelines,”17 however, given the anachronistic nature and basic inadequacies

12 Martha Buskirk, “The Commodification as Censor: Copyrights and Fair Use” October (Vol. 60, 1992), 84. 13 Macmillan, “Artistic Practice and the Integrity of Copyright Law,” 19 14 Ibid., 19. 15 Quoted in Buskirk, “Commodification as Censor,” 90. 16 Current United States Copyright Code: 17 U.S.C. § 107 17 Buskirk, “Commodification as Censor,” 91.

in the definition of what ‘artistic work’ entails, the four principle factors of fair use have

become the horse-drawn carriage in an age of turbojets and sports cars. Jens Schovsbo

concludes that the founding principles of the doctrine of fair use and Intellectual Property

law, such as ‘work of authorship’ and ‘invention’ have lost “clarity and consistency in the

process of incorporating more than a century’s worth of new technologies.”18

III. Original Copies “[I] never intended to produce a copy…a resemblance, yes, but never a copy. It’s not a mechanical technique. It’s a technological one…There’s a whole lot of authorship going on.” – Richard Prince19 In the foundational case of Rogers v. Koons, postmodern American artist Jeff Koons

was sued in 1989 for his appropriation of Art Roger’s black and white photograph, Puppies

(Figure 1), in his porcelain and wood sculpture entitled String of Puppies (1988). Perhaps the

most famous, or infamous, case of copyright law and artistic fair use, the decision that Koons

was, in fact, found guilty of copyright infringement is well known. But to what extent did the

doctrine of fair use protect his artistic creation, as pitted against another artist’s work?

In the transformation of medium, that is, from a two-dimensional photograph to a

three-dimensional sculpture, it becomes obvious from the outset that the work, literally, is not

a copy or reproduction of the original; this change in medium, along with the change in scale,

application of color and additional elements, as well as the lack of exact facial resemblance

also all evince substantial changes. Also, it’s inclusion within an exhibition at the Sonnabend

gallery entitled Banality (New York, 1989) speaks to both the purpose of the work as well as

its intention of social comment and critique. However, there remains one notable fact that the

majority of my research failed to mention: in acquiring Roger’s banal postcard, Koons tore

18 Jens Schovsbo, “How to Get it Copyright,” ed. Stina Teilmann, Art and Law: The Copyright Debate, ibid., . 19 Quoted in an interview with Peter Halley, ed. David Evans, Appropriation (Cambridge: MIT Press, 2009), 84.

off the copyright notice before sending to the Italian craftsmen to create it. Where most of the

cases involving breach of copyright simply do not investigate existing permissions on the

images they choose to duplicate, here Koons deliberately turns a blind eye. Rather than

innocent appropriation, the case takes on a sinister character. Indeed the obvious

transformation of the work, and trivial nature of the postcard should have afforded more

weight in the court’s decision, however such an oversight should not be ignored.

A substantial case involving another postmodern appropriationist, conceptual artist

Barbara Kruger (American, b.1945), was taken to court in 2002 by German photographer

Thomas Hoepker for her use of his image in her Untitled (It’s a small world, but not if you

have to clean it, 1990, Figure 2). Hoepker’s photograph, Charlotte as Seen by Thomas

(1960) pictured a woman, Charlotte Dabney, holding a magnifying glass over her right eye.

However, in Buskirk’s essay (published five years after the case decision), she cautions,

“Kruger’s 2002 District Court success…should not be taken to indicate a general sea

change,” due to the involvement of, “a fairly specific set of issues.”20 Indeed, Kruger may

have lost the case if she had not had the good fortune to create the work in question during a

“brief hiccup,”21 the expiration of Hoepker’s 28-year US copyright term, which was not

reinstated until 1994. Interestingly, Buskirk mentions the District Courts specific reference to

Kruger’s use of the image as “an act, which would have violated Hoepker’s copyright…if

[his] photographic image had been subject to copyright at that time,”22 in which Alvin

Hallerstein would have undoubtedly found Kruger guilty if it were not for such a

technicality, further exemplifying the courts’ imprecise interpretation of contemporary art.

20 Buskirk, “Creative Intent,” 241. 21 Ibid., 241. 22 Ibid., 242.

Hoepker was not defeated, however, as he nonetheless joined forces with Dabney, his

photographic subject, to claim23 a “violation of Dabney’s right to privacy under New York

State law” based on an alleged use of her image without consent for the purpose of

“advertising or trade”24 in 2000. Kruger’s work, on a travelling exhibition from the Los

Angeles Museum of Contemporary Art (1999) and the Whitney Museum of American Art in

New York (2000), not only appeared in the exhibition proper, but also reproduced on

assorted gift-shop merchandise (T-shirts, postcards, mugs, magnets and the like), and

displayed as a billboard in New York City. The decision to file suit and the date of the

exhibitions are no coincidence; Kruger’s image now had to answer the question of its

condition as a piece of ‘art’ or ‘advertising.’ “As it turns out,” Buskirk notes, “the judge was

less concerned with the question of whether the billboard was art or advertisement, than with

the fact that the image had been art before its appearance in that context,” and regardless

whether Kruger would have prevailed with respect to a valid copyright claim, the billboard

and commercial merchandise to be “ancillary use of a work embodying ‘pure First

Amendment speech in the form of artistic expression.’”25

The underlying assumption, as Buskirk points out, is the is the commercial

merchandise bearing Kruger’s image are indeed secondary to the actual art in question, and

not a factor in Kruger’s “stated desire to disrupt distinctions between high and low.”26 Thus

the question of context, in regards to location and interpretation, leads to a question of

audience. As curator Willis Hartshorn noted:

“For a viewer to appreciate [the] transformation [from art into media, and vice versa] implies a conscious relationship to the material. The viewer must understand the functions that are being

23 Hoepker v. Kruger, 200 F.Supp.2d 340 S.D.N.Y., 2002 24 Ibid., 242. 25 Ibid., 243. 26 Ibid., 243

compared through these self-referential devices. Otherwise, the juxtapositions that parody the conventions of mass media will be lost.”27 Indeed, Kruger’s transformative elements, such as the addition of red bands of text,

the manipulation of contrast, and the cropping, reformatting and reframing, question the

conceptual validity of originality and ownership; the “objectifying qualities of the act of

appropriation” are empowered by both the personal content of Kruger’s language and her

placement of it on the “unreflexive dimension of the photographic image.”28 The billboard

and merchandise, the presentation of Kruger’s work as commodified ‘object’ within the

public realm, allows for her message to speak clearly: ours is a culture being consumed by

consumption, with no indication of slowing down.

In 2007 The New York Times published, “If the Copy Is an Artwork, Then What’s the

Original?”29 two months after the Solomon R. Guggenheim Museum’s exhibition, Richard

Prince: Spiritual America opened to the public. Richard Prince (American, b. 1949), the

emblematic anti-hero of postmodern art, introduced the concept of ‘rephotography’ in the

late 1970s, taking photographs of photographs or pictures in magazine advertisements and

cropping them, rearranging them, and blowing them up large-scale. In his seminal essay “The

Photographic Activity of Postmodernism” (1980), Douglas Crimp describes Prince’s

photographic strategy in which he “steals the most frank and banal [media advertising]

images, which register, in the context of photography-as-art, as a kind of shock. But

ultimately their rather brutal familiarity gives way to strangeness, as an unintended and

unwanted dimension of fiction reinvades them.”30 In his 1984 interview with Peter Halley,

Prince confirms Crimps assertion of shock and discomfort in discussing his Cowboy series,

27 As quoted in Solomon-Godeau, “Living with Contradictions,” 205. 28 Collins, Milazzo, and Castelli. Pre/Pop Post/Appropriation, 31., 44. 29 Randy Kennedy, “If the Copy Is an Artwork, Then What’s the Original?” December 6, 2007, accessed November 11, 2010, http://www.nytimes.com/2007/12/06/arts/design/06prin.html 30 Douglas Crimp, “The Photographic Activity of Postmodernism,” October (Vol. 15, 1980), 100.

which begun in 1980 which comprised of a variety of rephotographs appropriated from a

famous advertising campaign for Malboro cigarettes, “Who would guess something that

familiar would have looked that unbelievable. [sic] It’s a shock. Playing the picture

straight.”31 Prince continues, “There’s a delayed density. The only things that should be

immediate is that when you first look at [the Cowboys] you’re not exactly sure what hit

you.”32

What hit commercial photographer Jim Krantz was undoubtedly a feeling of shock,

but perhaps of a familiarity that may be too close for comfort. While in New York, Krantz

encountered an exhibition poster for Prince’s retrospective and recognized it as a work he

had shot for Malboro in the 1990s as part of their advertisement campaign. When asked if

Krantz intended to charge Prince with breach of copyright, he said, “he had no intention of

seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use

exceptions to copyright law.”33 Krantz’s seemingly defeatist stance becomes even more

interesting when one learns, as nowhere stated in the article, that Krantz did not even own the

copyrights for his image Stretchin’ Out (Figure 3), but are owned by Marlboro’s Philip

Morris & Co., thus could not seek damages from Prince even if he wanted to.

Nancy Spector, in her introductory essay for the Spiritual America exhibition

catalogue, regard’s Prince’s Cowboys as icons of normalcy, asking, “What could be more

‘normal’ in American culture than a cowboy, that mythic figure of virility, chivalry, and

rugged freedom?” 34 Prince’s Cowboys, cropped, enlarged and excised of text, became

iconographically “complex critiques of society and the dominant ideologies”35 that emerged

31 As quoted in Evans, Appropriation, 86. 32 Ibid., 86. 33 Kennedy, “If the Copy Is an Artwork,” 2. 34 Nancy Spector, “Nowhere Man,” Richard Prince (New York: The Solomon R. Guggenheim Foundation, 2008), 33. 35 Solomon-Godeau, “Living With Contradictions,” 133.

as consequence of metaphorical association and recurring motifs of cultural stereotype and

classification. The Marlboro men permitted Prince to “unpack the menace, aggression, and

atavism of such stereotypical representations”36; Prince’s cowboys symbolized the heroic

male – handsome, strong and courageous – appropriated from advertisements so well known

that the brand was eventually able to eliminate cigarettes from the ads entirely. A semblance

of the iconology of American mythology, Prince’s Cowboys became transcendental

propositions of reality; “icons, indexes, symbols – the whole edifice of [Pierce’s] trichotomy

of the sign – suddenly bears upon the issue.”37 America the Beautiful: semiotic illusion or

reified myth?

Although no lawsuit ever developed from Prince’s Cowboys, it presents another

interesting case for the defenders of copyright law. More recently, Prince has been taken to

court again in a lawsuit filed this year, by French photojournalist Patrick Cariou. Prince, in

creating his series Canal Zone for exhibit at the Gagosian Gallery (Figure 4, November,

2008) appropriated images from Cariou’s book Yes Rasta (2000), an ethnographic survey of

Rastafarian culture from the mountains of Jamaica. Seeking damages along the lines of

“impounding, destruction, or other disposition”38 for all of the paintings in the series.

Prince’s works, which combine Cariou’s Rastafarians, media imagery, pornography and

expressionistic brushwork, are said to be “factually based in that they are real life

photographs of Rastafarians as they appear in their native environments” (fair use based on

the nature of the original work), as well as “utilizing small portions of the photographs,

together with other images and media, to create a new and unique work” (transformative

36 Ibid., 204. 37 Collins, Milazzo, and Castelli. Pre/Pop Post/Appropriation, 31. 38 Andrew Goldstein, “Richard Prince and Gagosian fight back over copyright,” The Art Newspaper, April 8, 2009, Accessed November 11, 2010, http://www.theartnewspaper.com/articles/Richard-Prince-and-Gagosian-fight-back-over-copyright/17147

use), which “comments upon certain aspects of culture”39 (purpose of the derivative work).

Rizzoli publishing house was also named in the suit for publication of the Canal Zone

catalogue, and it is perhaps here Cariou has more of a case. Claiming indemnity, Rizzoli

could appear commercially exploitive in court, or having an effect upon the market value of

Cariou’s book. Currently in the ‘discovery phase,’ it will be interesting to follow the suit, if it

makes it past a hefty settlement proposal.

III. If it Looks Like a Duck, and Quacks Like a Duck

“Every word, every image, is leased and mortgaged. We know that a picture is but a space in which a variety of images, none of them original blend and clash…[W]e indicate the profound ridiculousness that is precisely the truth in painting.” – Sherry Levine40

Perhaps it will never be possible to align the act of appropriation in art with copyright

legislation. As every case is filed, and every stolen image transformed, the appropriative

artist appears more and more as contemporary consumer, while ever more fundamentalist

copyright laws are creating taboos that will make even partial and ephemeral realizations of a

true mythology of difference extremely different. As art approaches life, it becomes

increasingly difficult to tell right from wrong. Where else might we find the truth we have

been promised, as Derrida says, if not the American legal system?

39 Ibid. 40Sherry Levine, “Statement,” as quoted in Evans, Appropriation, 81.

Figure 1

Puppies String of Puppies, 1988 Art Rodgers Jeff Koons Black and White Photograph Porcelain and Wood Sculpture

Figure 2

Untitled (It’s a small world but not if you have to clean it), 1990 Barbara Kruger

Figure 3

Stretchin’ Out Untitled (cowboy), 1999 Jim Krantz Richard Prince Ektacolor photograph, edition of 3

61” x 32½”

Figure 4

Yes, Rasta Back to the Garden, 2008 Patrick Cariou Richard Prince Black and White Photograph Inkjet, acrylic and collage on canvas

80 x 120 inches