Appropriation Art and Fair Uses

‘Immature poets imitate; mature poets steal.’ So wrote TS Eliot in The Sacred Wood in 1920. His epigram was probably adapted from Igor Stravinsky’s comment that ‘a good composer does not imitate; he steals’, as were sayings attributed to Picasso – ‘bad artists copy; good artists steal’ – and Le Corbusier: ‘All artists steal; but the truly original artist repays a thousandfold.’

Each of these truisms was expressed during the first half of the 20th century, before the development of ‘Appropriation Art’ in the 1970s by US artists such as Richard Prince, Sherrie Levine, Louise Lawler, Elaine Sturtevant, Cindy Sherman and Mike Bidlo. Prince is widely acknowledged as being the principal originator of this postmodern practice when he made what he called ‘rephotographs’ that appropriated others people’s photographic images – notably Untitled (Cowboy), 1989 (using images from Marlboro cigarette advertisements, which fetched $1,248,000 at Christie’s auction in November 2005).

Such work, Prince’s in particular, sometimes provokes legal action from others whose works have been re-used without their consent and who allege violation of their copyright. The most recent lawsuit has been filed against Prince in the US Federal Court for New York, by French photographer Patrick Cariou, who claims that Prince has infringed his copyrights by using 20 of his photographic images in a series of 22 paintings entitled ‘Canal Zone’. Cariou made a series of photographs over a period of ten years, during which he captured unique images of Rastafarian people in remote mountain areas of Jamaica, 100 of which were published in his book Yes Rasta, 2000.

Cariou’s claim specifically quotes from an article written by Prince and published in Interview magazine in which he comments on his being inspired by a book he had seen about Rastafarians: ‘It’s a very defined type of culture that I didn’t really know much about. But I loved the look, and I loved the dreads, so I just started fooling around with this book, drawing it like I did with the de Kooning paintings.’ Cariou asks the court to order: destruction of Prince’s unsold ‘Canal Zone’ paintings and catalogues; buyers of them not to exhibit the work in public; payment by Prince of an as yet unspecified amount of financial damages/compensation.

The case may be heading for a full trial, because Prince has recently filed his defence, asserting that: Cariou’s images are not ‘strikingly original’ or ‘distinctive in nature’; Prince’s ‘transformative’ use of Cariou’s works ‘reflect established art practices’; rather than doing harm to the market value of Cariou’s photographs, Prince’s paintings have enhanced their market value; Cariou’s images ‘are factually based in that they are real-life photographs of Rastafarians as they appear in their native environments, whereas the works of art by Prince utilise small portions of the photographs, together with other images and media, to create a new and unique work which comments upon certain aspects of culture’. All in all, Prince strongly asserts that his appropriation of Cariou’s photographic images was ‘fair use’.

Fair use of a copyright work, without the copyright owner’s prior consent, is now permitted by the laws of most countries; but they are not all exactly the same. US federal legislation enacts fair use provisions that are wider, more general and permissive than those in UK copyright law. US law permits fair use for the purposes of criticism, comment, news reporting, teaching, scholarship or research. Federal courts are given statutory guidance to decide whether a use is fair, by applying the following considerations to the facts of each case: the purpose and character of the use, including whether it is commercial; the nature of the copyright work; the amount of the copyright work that has been used; and the effect of the use on the potential market for, or market value of, the copyright work. Federal courts will not only be guided by these statutory provisions but also by previously decided cases or legal precedents – of which there have been many in recent years – two of which will be of direct relevance.

In 1992 US photographer Art Rogers successfully sued US artist Jeff Koons for making a suite of polychromatic sculptures, String of Puppies, 1988, by sending to his fabricators a postcard of Rogers’ photograph (of two people sitting side by side on a bench holding in their arms eight puppies: Puppies, 1986) and instructed them to make four sculptures reproducing the image. Koons failed in his fair use defence, having argued that the sculpture was ‘a critique of the conspicuous consumption, greed, and self-indulgence of modern consumer society’ (in other words, a comment or parody). The federal court said that copies made for commercial or profit purposes are ‘presumptively unfair’ (Koons had sold three of the sculptures for $367,000); and decided that Koons’ work was not a fair use comment or parody directly on Rogers’ work.
In 2006 Koons successfully defended his use of US photographer Andrea Blanch’s copyright image, Silk Sandals by Gucci, 2000 (a photographic advertisement of a woman’s feet wearing Gucci jewel-strapped sandals), which he had rephotographed and used with other images in a collage painting, Niagara, 2000 (one of seven paintings commissioned by Deutsche Bank for $2m). The federal court decided that Koons’ use of the photograph was ‘transformative’ in that it was made ‘in furtherance of distinct creative or communicative objectives’; and that the more transformative the use, the less significant will be other fair use considerations.

In the UK, a more conservative approach is taken by copyright law. Fair dealing with a copyright work is permitted for the specific and limited purposes of: non-commercial research; private study; criticism or review of a published work; or news reporting current events (but not using photographic works). Note the absence of comment or parody permitted by US law. Also unlike the US, UK law offers no statutory guidance on what is fair and so UK courts have developed a set of judge-made considerations for deciding whether any dealing is fair on the facts of each case: its purpose, nature and amount; alternatives to the dealing; the nature of the copyright work in question; and the effect of the dealing on the copyright work. There are far more copyright lawsuits in the US than in the UK (where cases are more likely to be settled out of court by the parties themselves): there are no UK court decisions directly on Appropriation Art. The general approach of UK courts to fair dealing was established by the High Court in 1972: ‘it is not a fair dealing for a rival in trade to take copyright material and use it for his own benefit’ – the so-called Seventh Commandment copyright rule (thou shalt not steal).

A set of related artist’s rights common to the US and the UK, and deriving from the Berne Convention for the Protection of Literary and Artistic Works (to which most countries in the world are signatories), might also be relevant in deciding the Prince case: statutory moral rights. Irrespective of the copyright position, fair use or not, an artist (including a photographer) is given the inalienable legal right to prevent their work (or a publicly exposed copy or version of it) being treated in a derogatory way, including: any addition to it, amendment or alteration of it, or deletion from it. In the Cariou/Prince case, it appears that the photographer’s images were altered by Prince when using them in the ‘Canal Zone’ paintings. It will be instructive see whether violation of Cariou’s statutory moral rights arises, if the case goes to full trial.

© Henry Lydiate 2009

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.
The article is for information only, and not for the purpose of providing legal advice.
Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.