Credit Where It’s Due?

Marcel Duchamp and Andy Warhol met in New York City

– firstly only to shake hands, in May 1963, outside the Museum of Modern Art where both were entering the opening of the show ‘Americans 63′. Then Duchamp allowed Warhol to film him at the Cordier and Ekstrom Gallery, where Duchamp had curated a group show in aid of the American Chess Foundation. Screen Test: Marcel Duchamp, 1966 was the outcome. Duchamp later remarked: ‘I like Warhol’s spirit. He’s not just some painter or movie-maker. He’s a filmeur and I like that very much.’

Such gems of contextual information, and very much more about the interrelationship of the works of both artists, were offered at the Andy Warhol Museum’s recent summer exhibition, ‘Twisted Pair: Marcel Duchamp / Andy Warhol’. The Museum’s catalogue states: ‘This exhibition presents the ground-breaking work of two masters of 20th-century art …. While many have written about their artistic kinship, this exhibition – which pairs dozens of their works and takes advantage of Warhol’s personal papers – is the first to thoroughly explore Warhol’s great interest in and indebtedness to Duchamp.’

As the show amply demonstrates, Warhol was a Duchamp fan decades before (and after) they met – collecting many original or editioned Duchamp works, exhibition catalogues and posters, and books about him and his work. Moreover, as the show’s curator Matt Wrbican writes: ‘Duchamp may have held more influence on Warhol than any other artist. Although the artistic kinship between them was noted as early as 1962, recent Duchamp scholarship and access to Warhol’s personal papers, many held in the Andy Warhol Museum archives, have underscored Warhol’s enduring interest in and indebtedness to Duchamp.’ ‘Twisted Pair’  – the show’s title alluding to twisted electrical copper wires, ‘one positive and one insulated negative’ – also exhibits and explores the direct relationship between scores of specific Warhol works and those of Duchamp. It invites an obvious debate: did Warhol borrow or copy or steal from Duchamp, and even if he did, had not Duchamp rewritten the rules? Most importantly, Warhol did not appropriate Duchamp’s specific artworks but rather his ideas and thought processes. Wrbican observes that ‘among their shared interests and themes are optical-effect experiments, language and puns, pseudonyms, sexuality, identity and role playing, money, fame and death’, and that ‘both artists’ early works were notorious and iconoclastic in their eras but are recognised now as important touchstones of modern art history. These include Duchamp’s Dada Fountain (1917) and Warhol’s Pop Art Campbell’s Soup Cans (1962)’.

Speaking of Warhol, Duchamp said: ‘If you take a Campbell’s soup can and repeat it 50 times, you are not interested in the retinal image. What interests you is the concept that wants to put 50 Campbell’s soup cans on canvas.’ This observation demonstrates that he was not only aware and supportive of Warhol’s work, but that he was not in the least proprietorial about this appropriation of his conceptual art innovations.

Some artists, however, are deeply proprietorial about their artistic concepts and struggle with the law’s failure to offer copyright protection to ideas. In an article published in the art newsletter The Jackdaw (September/October 2010), ‘The Art Damien Hirst Stole’, self-styled Stuckist artist Charles Thomson argues that 15 works by Damien Hirst were ‘inspired’ by other artists. At the outset Thomson offers a Hirst comment from 2006: ‘Lucky for me, when I went to art school we were a generation where we didn’t have any shame about stealing other people’s ideas. You call it a tribute.’ Thomson cites examples of alleged sources of Hirst’s work: US artist Thomas Downing’s 1960s grid and spot paintings with repeated colours; Gerhard Richter’s paintings of grids of rectangles with random colours in 1966; and Swiss artist John Armleder’s paintings of spots during the 1970s – all before Hirst began exhibiting similar works at his ‘Freeze’ show in 1988. Hirst’s installation work, Pharmacy, 1992 (cabinets with bottles on shelves) was pre-dated by Joseph Cornell’s cabinet with bottles on shelves also called Pharmacy in 1943. Hirst’s shark suspended in a vitrine of formaldehyde, The Physical Impossibility of Death in the Mind of Someone Living, 1992, was pre-dated by the showing of a shark preserved with formaldehyde by an electrician in his shop in London’s East End in 1989. And so Thomson goes on, citing further striking similarities between Hirst’s works and earlier works and ideas for works by other artists with whom Hirst had some connection or relationship – cut-up animals, spin paintings, butterflies fixed on painted surfaces, images of cancer cells and skulls. A recent BBC News report commented that ‘unproven allegations of plagiarism have dogged Hirst since he made his name as one of the “YBAs” – Young British Artists – who came to prominence in the 1990s’. Hirst’s press officer said Thomson’s article was ‘poor journalism’ and that Hirst would issue a ‘comprehensive’ rebuttal.

Plagiarism is a carefully chosen word: it avoids suggesting that Hirst has been accused of violating the legal rights of other artists. The OED defines plagiarism as ‘the wrongful appropriation or purloining and publication as one’s own, of the ideas, or the expression of the ideas of another’; from the Latin word for ‘kidnapper’: plagiarius. In modern times plagiarism has come to be regarded as an immoral – not an unlawful or illegal – act and as being the opposite of ‘originality’.  Intellectual property laws were developed in the modern era and copyright laws in particular apply the concept of ‘originality’ to works of art that are given automatic legal protection against unauthorised copying and publication. Accordingly, works must pass the so-called ‘originality test’ in order to be ‘copyright works’, and must therefore be an expression of the artist’s ‘independent skill and labour’ or an œuvre de l’esprit (a work of the mind, in French civil law). In other words, although an artist’s work may be inspired or influenced or stimulated by another artist’s earlier work or ideas, copyright law may nevertheless judge it to be an ‘original’ expression or manifestation entitled to copyright protection. A similar legal test is applied to decide if an artist’s work violates the copyright work of another artist, when it has been ‘substantially derived’ from the earlier work.

But copyright laws do not apply to the protection of an artist’s ideas or concepts; only to their expression in some tangible manifestation or form. There is an inevitable proximity between legal notions of originality or substantial derivation, and moral or academic or artistic notions of plagiarism – and they are often erroneously used as synonyms. The history of the arts shows that all artists steal – not in the legal sense, but artistically – and especially use and develop others’ ideas: ‘immature poets imitate; mature poets steal’ (TS Eliot); ‘bad artists copy; good artists steal’ (Picasso). In the visual arts, it became customary practice to make explicit reference – hommage à – in the title of a new work to an earlier artist or work that served as inspiration or influence; as a mark of respect or indebtedness, and/or as a clue or context. Contemporary artists who chose not to do so often find themselves publicly criticised, even accused of plagiarism. Wrbican used the phrase ‘artistic kinship’ between Duchamp and Warhol: a kind and very helpful thought.

© Henry Lydiate 2010

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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.