WHEREFORE THOU ART #43
YOU'RE IN. APPROPRIATE!

A year ago I wrote here about appropriation art, and something just happened that warrants me writing about it again. A court decision was just issued that provides a little bit of clarity and sanity in a legal area long plagued by murkiness and danger. Read on!

Appropriation art involves the use of pre-existing works in new works. A fancy way of saying "collage", maybe, with roots going back to the time when the second caveman copped the first caveman's cave drawings. A little more recently, appropriation has been a central theme in Cubism, Surrealism, and the Dada Movement, and the primary tool in Pop Art.

Now, with the internet and digital media, Appropriation Art (I think the genre warrants capitalization) has exploded in every imaginable artistic discipline, from video (go look at YouTube), to music (brilliant mash-ups, like DJ Dangermouse's Grey Album), to every type of visual art. It's fair to say that Appropriation Art is the major art movement in the world today.

Like I wrote last year, it's also an area fraught with danger, because Appropriation Art runs smack into Copyright Law. Typically the appropriation artist uses current images, sounds, etc., and as such runs a constant risk of getting sued by the copyright owner of the appropriated work.

I was recently in a panel at the annual Society of Literature, Science and Art conference at NYU, talking about David Byrne and Brian Eno's 1981 album My Life in the Bush of Ghosts. Using sound recordings of shaman, Deep South exorcists, and various odd spoken-word snippets, the work is widely acclaimed as a pioneering work of appropriation art.

Researching Bush of Ghosts in preparation for the conference, I learned that Byrne and Eno got permission for all of the sound samples used in the final work. Tracks for which permission was denied were left off the album. This surprised me at first, but it shouldn't have-their record company probably required it. If any of the owners of the sampled works decided to sue, they'd go after the record company as well as Byrne and Eno.

But it raised a question in my mind whether Bush of Ghosts was truly a work of Appropriation Art, or rather if it was an after-the fact collaboration. If the only works that get to see the light of day are those that are approved by the "appropriatee," the artists' hands are tied-artistic choices will be governed not by aesthetic choice, but instead by what is going to please the rights owner of the original work. It sounds a little bit like the cart is pulling the horse.

There will always be those righteously indignant folks who equate Appropriation Art with stealing, who believe that copyright law is a sacrosanct and absolute set of property rights. But copyright law has never been like that. Copyright law, by design, is leaky, and copyright owners' rights have always limited by notions of free speech and the greater good of society. If it's better for society that a copyright owner's rights be ignored, then those rights are ignored.

An appropriation artist takes images out of the culture as building blocks for a new work, and usually these cultural images are taken from the mass media-from magazines, from television, from radio, from the internet. As traditional artists painted nature landscapes, for the appropriation artist the mass media is the new landscape. And to effectively portray the new landscape in art, existing images and sound, whether subject to copyright protections or not, must necessarily be used.

The recent case I mentioned above involved NYC artist Jeff Koons. A few years ago, Koons was paid a $2 million commission by a German bank to create a billboard-sized painting. He produced a work that featured four pairs of women's legs perched over a fudge brownie sundae and some donuts. Uh-huh! One pair of legs in the painting was copied from a photo that had appeared in an Allure magazine spread about metallic toe-nail polish. Koons readily admitted to have nicked the photo without permission. The photographer, who had been paid $750 for the photo, sued Koons for infringement. Late last year, the trial court ruled that Koons' use was not infringing, and the photographer appealed. A few weeks ago, the Second Circuit Court of Appeals in New York, the second most influential court in the country (the Supremes would be the first) affirmed that decision, a ruling that kicks open the door for Appropriation Art.

The court ruled that Koons' appropriation was not infringement under the doctrine of "fair use". Fair use has a long and tortured history; it's a difficult concept to grasp, and often requires considerable mental gymnastics in its application. Oftentimes, I sense that courts look at the situation, make a decision on a gut level, and then spend 10 pages trying to rationalize that decision. It's like Potter Stewart and pornography: you know fair use when you see it.

The major hook the court used in ruling in Koons' favor was a finding that Koons' use of the legs was transformative. This is a legal concept that's been kicking around the courts for about a dozen years, having been introduced to the world of fair use by the Supreme Court in a 1994 decision involving a unauthorized hip hop version of Roy Orbison's Oh Pretty Woman. In that decision, the Court floated the concept of "a transformative work" but didn't really put a fine point on it, essentially inviting the lower courts to fill out the contours of the concept, and this has been happening over the past dozen years in fits and starts.

The Koons court found the painting was transformative because it "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." The court accepted Koons' stated purpose in his painting: "I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insights into how these affect our lives." This was contrasted to the photographer's purpose in creating the original: "I wanted to show some sort of erotic sense; to get more of a sexuality to the photographs." In addition, the court credited Koons' use of the photograph's legs, rather than simply creating his own original images of a woman's legs: "By using an existing image, I ... insure a certain authenticity or veracity that enhances my commentary..." In other words, it was Koons' act of appropriation that gave his new work sizzle. The finding of transformation informed almost every aspect of the Koons court's lengthy and comprehensive analysis.

Does this mean that all of Appropriation Art is OK under the fair use doctrine? No, it doesn't. Fair use, necessarily, is a case-by-case determination. It is also a defense to a claim of infringement, meaning that copyright owners can make appropriation artists lives miserable (and expensive) by bringing a lawsuit and forcing the artist to prove his or her entitlement to fair use protections. I imagine that Jeff Koons spent a six-figure sum exonerating his painting and himself.

But, finally we have a definitive statement from a court that legitimizes, at least in principle, an artist's right to appropriate copyrighted works in the creation of new works. And for the major art movement in the world today, that's huge.

© 2007 Paul Rapp
This article originally appeared in The Artful Mind and is intended to provide the reader with an awareness of intellectual property law and not legal advice.