Is Appropriation Art Ever Appropriate?
by Melissa Eckhause
“Appropriation art” is art that incorporates existing—often copyrighted—material to create a new work. Andy Warhol’s “32 Campbell's Soup Cans” is an example. Warhol, Jeff Koons, Pablo Picasso and Richard Prince are all considered masters of this art form. Often, the intent of the appropriation artist is to comment on the meaning of the original art and its impact on society.
The issue is whether appropriating another artist’s work is copyright infringement or fair use. A number of recent, contentious cases have raised this issue, and some of the results have shaken up the art world. For example, in Cariou v. Prince, 784 F.Supp. 2d 337 (S.D.N.Y. 2011), which is now on appeal to the Second Circuit, the court rejected appropriation artist Prince’s claim that his use of the plaintiff’s photographs was fair use and ordered that the infringing copies could be destroyed.
Fortunately, these decisions hardly sound the death knell for appropriation art. Several well-settled cases provide guidance as to when appropriation is fair use and when it is just plain copying.
Photographs and paintings are subject to protection under the Copyright Act of 1976. The owner of the copyright has the exclusive right to make copies and derivative works that adapt or modify the original work.
An exception to copyright infringement is fair use. Under the fair use doctrine, use of a copyrighted work is permitted for such purposes as criticism, comment, teaching, news reporting, scholarship and research. This means that under certain circumstances artists can freely use someone else’s copyrighted work when creating new pieces. The justification for this principle is that there is a public interest in allowing artists to express themselves creatively.
When analyzing fair use, courts consider four factors: (1) the purpose and character of the defendant’s use including whether the new work transforms the original work; (2) the nature of the copyrighted work including whether it is factual or creative; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for the copyrighted work. If a new work is highly transformative, the other factors become less important. Therefore, many appropriation copyright infringement cases hinge on the degree to which the new work transforms the original work.
A new work is considered transformative if it adds to the original work by imparting new meaning or message to the original. If the new work seeks to supersede the original, it is not considered transformative. The more a new work comments on or critically refers back to an original work, the more likely it will be deemed transformative. There are no bright line rules for determining when something is transformative. Instead, it is determined on a case-by-case basis.
For example, in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), artist Jeff Koons used a copyrighted photograph taken by Andrea Blanch that appeared in an issue of Allure magazine. Koons’ purpose in using Blanch’s image was to comment on the social consequences of such advertisements. The Second Circuit affirmed the grant of summary judgment in favor of Koons and held that his appropriation of Blanch’s photograph was transformative. The court found it significant that Koons had a different objective in using Blanch’s image than she had in creating it. The court also noted that merely transferring an image from one medium to another, e.g., from a photograph to a painting, is not transformative. Additionally, taking a fashion advertisement and recasting it as high-brow art is not per se fair use. In contrast, in Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), Koons’ fair use defense failed because his sculpture did not directly parody the original work, but rather was a parody of society at large. The court emphasized the need to comment specifically on the underlying original work. The court also rejected Koons’ argument that his use was justified because he was a “significant player in the art business” and his sculpture “bettered the price of the copied work by a thousand to one.” The court further did not agree that appropriation art is inherently fair use.
Lately, Koons has been seeking permission from the creators of copyrighted materials to use their work. That is perhaps the best way to make appropriation art appropriate.
Melissa Eckhause is an intellectual property attorney who teaches Copyright Law and Media Business Law at the Art Institute of Fort Worth. She can be reached at email@example.com.