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Artful Mind Number 31
December 2005

So much of modern art, particularly art of the confrontational kind, uses popular culture as its palette. Images, quotes, and logos are the building blocks of what is broadly called "appropriation art," that is, art that features pre-existing material, transformed into a new work.

I recently was a guest lecturer at the Boston's School of the Museum of Fine Arts on the legal implications of appropriation art. Many, if not most, of the students and the faculty at this edgy institution are involved in one way or another with appropriation art, and most seemed to be creating audacious and exciting appropriation-based works without much in the way of understanding or guidance of the legal issues involved.

Which is why I was invited to speak. These days, marketing budgets for corporate image-building are in the billions of dollars and almost anything that can be termed as "information" or "content" has portfolio value. People and companies that claim ownership to images, logos, and the like may not take too kindly at the use of their valuable stuff by artists. And this is especially true when this re-use is satiric or critical. Nobody likes being made fun of. And remember, under the law, corporations are people, too, notwithstanding their lack of souls or consciences. Corporations really don't like being made fun of. Not good for shareholder value.

This was a daunting subject to cover in a one hour lecture. I initially wondered about the wisdom of lecturing at all. Should legal considerations impact aesthetic choices? On the other hand, artists shouldn't unwittingly be sticking their faces in a fan by the improvident use of somebody else's property. On the other other hand, the law is, fortunately or not, part of the world, and is it not the artist's job to present us with his or her perspective of the world?

Another problem was that I knew I couldn't supply the throng of earnest artists with much in the way of definite answers to their questions. "It depends" and "I think it's OK, but that doesn't mean you won't get sued" was about the best I could do. And I think everybody in the room had at least one question.

The basic problem is that every situation, every type of art appropriation, is factually different and those factual differences have different legal implications. What is it that's been appropriated? How much was taken? From whom? How has it been used? What's the message of the new piece? Is it funny? (There are no legal precedents that say funny stuff is more legal than unfunny stuff, but I think it makes a difference. If a particular use makes a judge laugh, it stands to reason that the judge will find a way not to punish the messenger.) So it's dangerous to announce any bright line rules, because context is usually everything.

Another complicating factor is that appropriation art usually involves the shifting sands of several distinct areas of law that are meant to protect very different things. Is the issue one of copyright law, which protects authors' creations? Trademark law, which protects commercial identity? Publicity or privacy law, which protects the use of people's names and likenesses? Sometimes an appropriation piece involves more than one legal consideration, sometimes it involves all three of these legal areas!

As I've tried to describe in previous articles, none of these areas of law are paradigms of clarity. Au contraire, mon frere. These legal regions are all in constantly unstable development, and you are likely to get different results for particular issues from State to State and from court to court.

Through the haze, there are a couple very general of rules of thumb that I can share about appropriation art. First, if you appropriate something (a photograph, a logo, or an image of a celebrity) to make a comment directed back at that thing you appropriated, you're quite likely to be OK. For years, Mattel has been throwing merciless high-priced lawyers at artists that use Barbie Dolls in their art and have lost big-time every time an artist can convince an attorney to take Mattel on. The courts have uniformly held in "the Barbie Cases" that, especially with a cultural icon like Barbie, the public's right to use Barbie to comment on Barbie far outweighs Mattel's rights under any theory of law. The most recent court to get a Barbie case got so torqued off at the abusive antics of Mattel's attorneys that it ordered Mattel to pay the artist's legal bill, to the tune of $1.6 million! That's justice!

Second, if you create appropriation art, you may eventually receive a cease and desist letter from an unamused copyright or trademark owner, or a celebrity's manager. Don't despair, the C&D letter can be your friend! Well over 90% of the cease and desist letters that clients have brought to me are legally questionable, if not totally baseless. Remember that it's really easy to crank a threatening Angry Lawyer Letter out of the word processor; it's considerably more difficult to carry through with the threats and actually sue an artist. I don't recommend ignoring a C&D letter, but rather having an attorney who knows this stuff look at the situation and if the C&D letter is an exercise in corporate bullying (as it is in the typical case) you can gleefully respond in kind. Maybe even more importantly, C&D letters can be a welcome addition to an artist's webpage, can garner some nice publicity, and in the right situation will expose the sender as a humorless, inflexible tyrant. As Judge Brandeis once said, "sunlight is the best disinfectant."

Oftentimes the routine is a legal game of chicken. The copyright / trademark owner threatens to commence a miserable and costly flurry of scorched-earth litigation. The artist stands on his or her free speech rights, and threatens back to turn the matter into a public relations disaster for the owner.

It's an unnerving and sometimes dispiriting struggle, and maybe if a few more courts summon the courage to bang the bullies the way Mattel got banged last year, some of the bullying will stop. Meantime, I tell artists if they truly have something to say, say it, and if the work is good, we'll just figure out the legal dimensions later on.

© 2002 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.