Appropriation of Media

In the endless search for new ideas and forms of expression, artists are increasingly embracing the use of contemporary technologies:

the internet, computer hardware and software, film, video, digital cameras and sound recordings. Such new ways of working facilitate and stimulate the appropriation of fixed and moving images or other material readily accessible through the media, and their inclusion in new multi-media artworks. Here artists can run into difficulties, when such appropriations are of material created for commercial gain by the fiercely competitive and jealously protective 'cultural industries' – so-called because they invest substantial financial and other resources in the industrial production and dissemination of forms of cultural expression – especially the global film, broadcasting, and recorded music industries.

The cultural industries rely upon the creative arts to originate their cultural products, invariably (but not always) paying fees and/or royalties to creative practitioners in the commissioning and merchandising of new films, videos, broadcast programmes, CDs, and DVDs. Recent UK surveys reveal that only around 5% of new cultural products yield a commercial gain – the other 95% of 'misses' are economically justified by the substantial profits made on the minority of 'hits'. Little wonder that intellectual property laws are strongly used to protect such products from perceived or actual commercial threats, including those perceived from visual artists' appropriating and using such media.

Copyright law is a powerful legal tool assiduously used by the cultural industries, whose products usually have copyright protection for 50 years from public release of, say, the CD, DVD, film, or broadcast. This protection gives the copyright owners/cultural industries the exclusive right to take legal steps to deal with anticipated or actual appropriations of their products including, for example, film clips or stills, and recorded music samples. In the UK, courts can impose on copyright infringers an unlimited fine and/or up to ten years in prison. However, artists should not be deterred from writing to film or record companies, explaining the intended use of the clip or sample, its relevance to the new artwork, above all stressing its essentially non-commercial nature (when that is the case), and seeking permission for such use. Permissions for such non-commercial uses are more likely to be given (and at no/low cost), than are ones for commercial use.

An aspect of media law rapidly developing in the US in recent years, now spreading to the UK, is the protection of celebrities and their iconic images and names from commercial use by others. Copyright law cannot be used to protect how people look (it only protects original works made by a creative artist/author), so media lawyers have successfully extended the use of trademark and passing off laws to meet the commercial needs of their celebrity clients or their estates. The estates of Diana Princess of Wales, Elvis Presley, Steve McQueen, and Marion Brando have sought to use these laws; as have managers of 'living' brands such as David Beckham. UK trademark law enables things that can be recorded graphically to be registered with the national trademark registry as a protected mark for a period of years, which can be renewed periodically for an indefinite length of time. This can give the trademark owner/registrant a powerful and valuable legal monopoly in the country of registration, which can be enforced against those who try to use or apply the registered mark – or something similar – in the areas of business specified in the registration application; for example, to monopolise the use of iconic photographs (Brando in his leathers on the motorcycle in the 50's film The Wild One), of the celebrity's image endorsing products (male deodorant) or being used in manufacturing and merchandising products (miniature busts or statuettes, posters and prints, badges, labels, or logos). The estates of Andy Warhol, Salvador Dali, and Picasso, have similarly begun to use trademark laws to monopolise the merchandising of artworks and product endorsements by the deceased artists.

In the UK, it is a criminal offence to infringe trademark law, which can attract an unlimited fine and/or ten years in prison. As with copyright, a written application to the trademark owner seeking permission to appropriate registered material into new artwork is the best course.

Courts in the UK and US developed passing off law as a legal remedy to protect commercial goods and services that have already established a market. It prevents competitors entering the same market from 'wearing the clothes' of the first product or service. In other words, it stops new competitors from passing themselves off as the established brand, as a look-alike: '… and tonight, Matthew, I'm going to be …'. Passing off is often used together with copyright and trademark law, to be certain to catch unauthorised appropriators of commercially valuable media, but can be used on its own where the other two laws are not available. Remedies for passing off include court injunctions to prevent further breaches, and orders to pay financial compensation.

British artist Alison Jackson has achieved much media attention for her artworks involving the creation of films, photographs, TV broadcasts, and performance events, using look-alikes of The Queen, Princess Diana and Dodi Fayed, Prince William, David and Victoria Beckham. (The latter couple's look-alikes were hired by the artist and sent to walk the streets of Madrid last year, at the height of intense media speculation as to whether the Manchester United footballer was to be sold by his club to Real Madrid – outside of whose home stadium the couple were caught by paparazzi photographers.) It is remarkable how Jackson finesses such successful art/media performance events without incurring the wrath of her subjects or their estates, and reflects a sound understanding of the complex legal issues and skilful management of the risks involved.

© Henry Lydiate 2004

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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.