Heather J. Meeker
This article appears in The Green Bag at www.greenbag.org.
In 2021, the sale of Beeple’s $69 million NFT Everydays – The First 5000 Days made international news. It was one of the most expensive pieces of art ever sold at auction, but the sale was especially newsworthy because it challenged our definition of visual art — and our definition of art ownership. The work was a collage of 5,000 artworks created by the artist over more than 13 years, and it was the first purely digital art ever offered by Christie’s.
https://twitter.com/ChristiesInc/status/1361670588608176128/photo/1
Beeple’s art represented an entire career’s worth of effort, an astonishing work. His 5,000th day appears below. Perhaps one of the more astonishing aspects of the work is that he was not sued for using several iconic movie and video game characters–a practice with long and controversial history in fine art and the law.
Visual art may seem frivolous in a world facing a global pandemic and environmental calamities, but is increasingly part of our world and our culture. Today, we spend more and more of each day absorbing visual images — from Instagram feeds, to the logos on our computer screen, to emojis with which we communicate. Some say we are in a post-literate world, but in fact, we now live in a multi-literate world, where we use the language of visual images to communicate, as much as we use words.
Visual images have always had a unique way of making us think. In Ulysses, James Joyce, through his alter-ego Stephen Dedalus, spoke of the “ineluctable modality of the visible.” In doing so, he drew on precepts going back as far as Aristotle. In contemporary parlance, we are all visual learners. Modern visual artists are the progeny of Joyce, speaking in a symbolic language of quotations and allusions. The grammar of this process in art is sometimes called Appropriationism–the incorporation of familiar visual images into new works of art–and is heavily associated with the post-Modern art movement of the late 20th century. But appropriation–capitalized or not–continues strong today. And it is still at loggerheads with copyright law.
Modern Art, Postmodern Art, and Appropriationism
Modern art began with Cubism. At the turn of the 20th century, western culture was experiencing great change, absorbing the transformation of the industrial revolution. The progression from Cezanne’s moody yet recognizable countrysides to Marcel Duchamp’s practically unrecognizable “Nude Descending a Staircase” took place in less than a decade – 1904 to 1912. (Robert Hughes, The Shock Of The New 19, 52-53 (1991). This book is a classic work of art criticism, and highly recommended for more background on post-Modernism.)
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| Mont Sainte-Victoire, ca. 1904–06, Paul Cezanne, The Henry and Rose Pearlman Foundation, on long-term loan to the Princeton University Art Museum https://artmuseum.princeton.edu/cezanne-modern/c%C3%A9zanne/mont-sainte-victoire | Nude Descending a Staircase, No. 2, 1912, Marcel Duchmp, Philadelphia Museum of Art, PD-US, https://en.wikipedia.org/w/index.php?curid=3922548 |
The first Appropriationist style was collage. The industrial revolution brought not only social change, but the mass availability of manufactured things, sometimes things that were shoddy and disposable in a way that seemed to cheapen day-to-day experience. Fine art was quick to assimilate and comment on these new things. In his 1912 painting “Still Life with Chair Caning,” Picasso incorporated an oilcloth printed with a caning design found on the cafe tables, injecting an image from the real world into his composition.
Pablo Picasso (1912) Still Life with Chair Caning, Picasso Museum, Paris https://www.pablopicasso.org/still-life-with-chair-caning.jsp#prettyPhoto[image2]/0/
Collage was soon embraced by the Dadaists. In 1920, for example, Hannah Hoch created “Pretty Maiden,” a collage replete with twenty-two BMW logos, a pneumatic tire, a wig and a light bulb.
Hannah Hoch (1920), Pretty Maiden
Soon, visual artists began incorporating mass-produced images, as well as mass-produced things, into their artworks, and the result was Pop Art. As Marshall McLuhan said, “Information pours upon us, instantaneously and continuously.” ( Marshall McLuhan & Quentin Fiore, The Medium is the Message 63 (1967).) Even Robert Hughes, one of the more outspoken critics of post-Modern art, shares this view. “Nature has been replaced by the culture of congestion: of cities and mass media. We are crammed like battery hens with stimuli, and what seems significant is not the quality of meaning of the messages, but their excess. Overload has changed our art.” (Robert Hughes, The Shock Of The New, at 324.) Keep in mind that Hughes wrote this many years before the iPhone transformed us into a society of images and gestures.
Artists, armed with the technology of mass production and digital authoring tools, are now able to create digital images with little or no technical training. The first to publicly capitalize on that idea was Andy Warhol, who set up his “Factory,” a studio in which hired artisans mass-produced his ideas. Later, Jeff Koons, a commodities broker-turned-artist, became notorious–and a defendant in a famous lawsuit–in the 1990s for producing Appropriationist sculptures that he had no hand in crafting. But this lack of craft was part of the point; one tenet of post-Modernism is its notion that quality and originality are “sinister devices of cultural control.” (Paul Richard, Welcome to the ‘Image World’; At the Whitney, a Sleek, Chic and Shallow Response to the Media Blitz, WASH. POST, Nov. 12, 1989, at Gl.)
Copyright and Fair Use
To the law, appropriation is fundamentally copyright infringement, so the philosophical underpinnings of Appropriationism and intellectual property law naturally conflict. In copyright law, originality and appropriation fight it out under the aegis of the fair use doctrine. The Copyright Act, 17 USC 107, specifies the factors to be taken into account when determining whether a possible infringement is fair use.
- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- (2) the nature of the copyrighted work;
- (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- (4) the effect of the use upon the potential market for or value of the copyrighted work.
There are two competing–or perhaps parallel–philosophies of creativity underpinning fair use. One view is that creativity happens in the mind of the artist. The romantic conception of authorship envisions the artist creating art from nothing but imagination. This view supports a narrow definition of fair use. The Appropriationist notion is that creativity is mostly a synthesis of existing expression, a notion that questions the idea of originality. This view supports a broad definition of fair use.
How should the law strike a balance between these two philosophies? The “ineluctable modality of the visual” is a Joycean way of saying that visual arts are special — they are different from works based on sound, or touch, or words. Assuming that’s true, should visual arts enjoy special treatment under copyright law, and particularly under fair use?
The fair use doctrine has been called “the most troublesome in the whole law of copyright.” (Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939).) As Lawrence Lessig quipped, ‘”fair use” is the right to hire a lawyer’, commenting on the decade-long war between Google and Oracle and its attempt to apply fair use to software: two trials, two Federal Circuit reversals, one Supreme Court reversal of that, and over $100 million in legal fees. The vagueness of the fair use doctrine makes Appropriationism a risky business. Courts are reluctant to resolve fair use questions on summary judgment, so relying on fair use as a defense is often expensive, lengthy and unpredictable. That means that a defendant who can’t afford to fight ends up being silenced instead.
Much of the development of copyright law in the last decades has been a process of adapting the law to new forms of expression; as technological advancements have come faster and in greater leaps, they stretch copyright law far beyond its original focus. At the same time, as a political matter, the media industry has successfully lobbied for more and longer copyright protection, mostly without effective opposition. The duration of copyright protection has been inflating–now life plus 70 for individuals–even while the technology to mix and recast images in creative ways has hurtled forward. Lately, the advance of art and technology has put more and more pressure on the fair use doctrine, as we seek to balance the rights of the quoter and the quoted in our world.
Fair Use Factors and Appropriationism
The first factor is usually not favorable to Appropriationism. To a lay person, the purpose of Appropriationist art does not fit neatly into either a commercial or non-commercial category. But to the law, fine art is a business. Commentators have criticized the courts for classifying fine arts as a commercial use, saying that the distinction between commercial and educational purposes is indistinguishable when applied to the fine arts. (Sigmund Timberg, A Modernized Fair Use Code for Copyrights, in Lawrence & Timberg, at 313-14.) Moreover, as art finds its way into museum collections or is displayed to the public, it does inure to the public benefit. One California District Court has held that broader scope is given to fair use in the field of fine arts, than in “commercial enterprises.” (Loew’s Inc. v. Columbia Broadcasting Sys., Inc., 131 F. Supp. 165 (S.D. Cal. 1955)(The Gaslight case).)
The second factor, the nature of the copyrighted work, categorizes the original work, parallel to the way the first factor categorizes the infringing work. Courts generally give less latitude to artists than to authors of academic or news material. The Second Circuit has held that “When informational works are involved, as opposed to creative ones, the scope of fair use is greater.” (See Wojnarowicz v. American Family Assn., 745 F. Supp. 130, 144 (S.D.N.Y. 1990).) Courts generally draw the line between these categories rigidly, turning a deaf ear to claims that artistic expression is intended to inform its viewer.
The ineluctable modality of the visible is crucial to the third factor. Unlike text or music, which are sequential in nature and can be more easily excerpted, visual material comes in one, instantaneous image. One court has held that every frame of a film is a work of art, thus rendering the use of any one frame a complete copying of the underlying work. (Time, Inc. v. Bernard Geis Assoc., 293 F.Supp. 130, 159 (S.D.N.Y. 1968).) Some commentators have therefore suggested that the substantial use criterion should not be applicable to visual works. (Sigmund Timberg, A Modernized Fair Use Code for Copyrights, in LAWRENCE & TIMBERG, supra note 27, at 313.) Over the years, the courts have begun to agree. For visual images, use of an entire work often will qualify as fair use. In Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000), a case involving re-use of photographs by a newspaper, the court simply said, “The third factor does not seem particularly relevant in this context.”
The last enumerated factor is the effect on the potential market for the original work, originally the “single most important element” of the fair use analysis. (Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).) This factor asks whether the new work has supplanted the market for the original work. For fine artists, this factor can cut either way, depending not only on the equities of the case but on the vagaries of the art market. Courts often distinguish between the market for the plaintiff’s work and the market for the infringing work. This factor can also backfire for the plaintiff, when the very fact of the copyright infringement claim increases sales of the infringed work. But some courts disregard this notoriety value.
Transformation: The “Fifth Factor”
Fair use in Title 17 covers a non-exclusive list of factors, intended only to set the stage for an equitable judgment. Over the past few decades, courts have relied more and more on a uncodified fifth factor–transformation–in fair use analysis. This factor is often cast as part of factor one. A use is transformative when it “adds something new, with a further purpose or different character,” as the Supreme Court put it in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Via a string of cases in the late 1990s and in the 2000s, the courts began to place more and more emphasis on this factor. In a seminal article on the topic, Judge Leval said:
I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. …[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. (Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).)
This new focus on transformation arguably changed the relationship of copyright and Appropriationism forever.
Fair Use, Appropriationism, and Fine Arts in the Courts
The patron saint of Appropriationism is Andy Warhol. Warhol was the figurehead of the pop art movement in the 1960’s, and his trademark style reproduced commercial images that had become cultural icons. His best known work is the 1962 “32 Campbell’s Soup Cans.” His serial photographs of Marilyn Monroe (in Marilyn Diptych) are now cultural icons in their own right.
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| Andy Warhol (1962) Campbell’s Soup Cans, MOMA | Andy Warhol (1962) Marilyn Diptych, Tate Museum |
One heir to Warhol’s artistic vision was Richard Prince, who engaged in a form of appropriationism called re-photography, and was most famous for his appropriation of the men from Marlboro cigarette ads. In 1983, Prince ran afoul of the law by appropriating a photograph of Brooke Shields, which he entitled “Spiritual America No. 1” and exhibited in a fake art gallery he had set up. (William Zimmer, Appropriation: When Borrowing From Earlier Artists is Irresistible, N.Y. TIMES, June 14, 1992, sec. 13CN at 22.) The picture’s original photographer, Gary Gross, attempted to serve Prince with a lawsuit but was thwarted by the disappearance of the fake gallery. (Paul Taylor, Richard Prince, Art’s Bad Boy, Becomes (Partly) Respectable, N.Y. TIMES, May 17, 1992, Arts & Leisure sec. at 31.)
Richard Prince, (2016) Untitled (cowboy), LACMA
Even 30 years later, Prince was still warring with the copyright law, but with more success. Patrick Cariou, a professional photographer, had published a book of photographs entitled Yes Rasta, capturing “the strict, separatist, jungle-dwelling, fruit-of-the-land lifestyle—popularized by reggae legends Bob Marley, Peter Tosh, and Burning Spear.” Prince created a series of paintings and collages entitled “Canal Zone,” incorporating the Cariou photographs, along with other images and materials. The district court found infringement notwithstanding Prince’s assertion of the defense, and ordered Prince to deliver unsold “Canal Zone” works to Cariou. But on appeal, in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), the Second Circuit concluded that 25 of the 30 works at issue constituted fair use, because Prince’s “composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs….” (Infringement analysis on the other 5 was remanded to the district court.) The court also found no evidence that Prince’s work usurped the market for plaintiff’s photographs. The market for Prince’s art was fine art collectors and museums, some selling for $2 million or more, whereas Cariou’s book of photographs was marketed in a commercial book, at modest prices. (Indeed, as of this writing, it is available on Amazon.com for $24.95.)
http://www.artistrights.info/cariou-v-prince
Prince’s Appropriationism, as well as his battles with copyright law, continue to this day. His “New Portraits” series was a collection of screenshots of Instagram posts. It resulted in at least two ongoing lawsuits in which Prince has invoked fair use. The posts feature comments of Prince, like “non sequitur”, “gobbledygook”, “jokes”, “oxymorons”, “‘psychic jiu jitsu,’” “inferior language” that “sounds like it means something.” (Graham v. Prince, SDNY, Complaint Section 28 Case 1:15-cv-10160-SHS 12/30/15). The other case is McNatt v. Prince, SDNY, Case 1:16-cv-08896-SHS, 11/16/16, whose complaint contains an entire section called “Defendant Prince’s Contempt for Copyright Law.”)
Richard Prince (2019) New Portraits, MOCAD
Prince’s Instagram installation is particularly interesting given the counterpoint in other fair use cases involving Instagram postings. In a recent case ( O’Neil v. Ratajkowski, US District Court for the Southern District of New York, 1:2019cv09769, October 23, 2019.), a paparazzo took a picture of Emily Ratajkowski, a model and actress, and Ratajkowski copied the photo, added the words “mood forever” to the bottom of the photo, and posted it to her own Instagram account as a “story” — a feed that persists for only 24 hours. The photographer sued for copyright infringement. The court declined to decide the fair use defense on summary judgment, saying that there was an issue of fact as to whether the use was transformative. The similarity between the substantive transformation here and in the Richard Prince installation suggests that Prince might be successful on a fair use defense — but clearly, Prince makes a practice of dancing on the edge of what is lawful, and that is part of his artistic vision.
Collage is still alive, though physical collage now intersects with “found art.” In 1988, artist Dennis Oppenheim created a sculpture for a Santa Monica business development. entitled “Virus,” which resembled “a jungle gym with 34 fiberglass figures of Mickey Mouse and Donald Duck skewered on a matrix of bronze rods.” (Suzanne Muchnic, Disney Orders Removal of Sculpture, L.A. TIMES, Oct. 16, 1992, at Bl, B8.) Oppenheim cast the figures from plastic toys made 60 years ago in Japan. He molded them into Fiberglass in dull colors. The Walt Disney Company discovered the artwork less than a year after it was completed, filed suit and demanded the sculpture’s removal, alleging copyright infringement. Disney offered to settle the matter with a $15,000 retroactive license, but Oppenheimer refused. The artist claimed that, due to fabrication difficulties, he made no profit on the sculpture and could not afford the license. He offered to cut up the figures to make them less recognizable, but Disney in turn demanded removal of the sculpture. Oppenheim made this comment about the lawsuit: “You go to a flea market, you buy a bunch of figures, two of them turn out to be Mickey mouse and Donald Duck, and you put them in a sculpture or a collage. Artists do this all the time. That’s appropriation.”
Dennis Oppenheim (1988), Virus, Museum of Fine Arts, Houston
But the digital age is rife with electronic collage. Jeff Koons, whose work has created a cottage industry for copyright lawyers, created a digital collage called “Niagara” that incorporated a commercial image of Gucci sandaled feet from Allure, a lifestyle magazine. There, the Second Circuit held the use transformative, saying that transformation “almost perfectly describes” the appropriation by Koons to create “a massive painting commissioned for exhibition in a German art-gallery space.”
Blanch’s “Silk Sandals” in Allure magazine and Koons’ Niagara.
Art Imitates Art
Most of Pop Art was reuse of commercial images, or images considered unartistic by the Appropriationist artist. But sometimes, different castes of artists borrow from each other.
One dispute took place in 1965 over the Andy Warhol series “Flowers,” which was based on a photograph of hibiscus blossoms by Patricia Caulfield. Warhol was estimated to have painted over 900 “Flowers.” (John Henry Merryman & Albert E. Elsen, Law, Ethics and The Visual Arts 376 (2d ed. 1987) note 15, page 202.) In 1964, Caulfield sued Warhol, and the case was settled. However, that case was before the 1976 Copyright Act that codified the fair use doctrine. Reportedly, the settlement included copies of the offending print. However, it allowed Warhol to continue to use the photograph in his art. (These facts have been reported in various secondary sources, but are hard to verify.)
Probably the most famous–and most criticized–case about Appropriationism was the 1990s case Rogers v. Koons, 960 F.2d 303 (2d Cir. 1992). Jeff Koons, a notorious Appropriationist artist of the late 20th century, used a photograph by Arthur Rogers, a commercial photographer, to create a sculpture for his “Banality” show. Rogers had been commissioned by an acquaintance, Jim Scanlon, to make a photographic portrait of his dogs. Rogers photographed Scanlon and his wife holding eight German Shepherd puppies between them in a row. The photograph was exhibited in the San Francisco Museum of Contemporary Art and sold under license as a commercial postcard.
“Banality” consisted of twenty sculptures to be fabricated by an Italian studio. Koons neither draws nor paints, and does not keep a studio. (Kristine McKenna, The Art World is Ripe for Me’; Jeff Koons’ High Profile Marketing at Media Manipulation Makes his Talent Seen Secondary, L.A. TIMES, Jan. 22, 1989, Calendar at 4.) Koons bought a copy of the postcard, tore the copyright notice off, and sent it to Italy to be copied. He visited the studio and directed the artisans to use the same angles, poses, and expressions “as per photo.” He altered the work in minimal ways, placing daisies in the couple’s hair and adding vivid colors. The sculpture was made in an edition of four, three of which Koons intended for exhibition and sale and one of which he reserved for himself. Koons entitled his sculpture “String of Puppies.”
Any lay viewer can see the similarities between these two works, but can also see that they are quite different in character and artistic message. Martin Garbus, a New York attorney specializing in constitutional law, commented in a 1992 New York Times article that the decision in Rogers v. Koons may have been unduly influenced by the fact that the court never viewed the actual sculpture. (Martin Garbus, Law Courts Make Lousy Art Critics, NEWSDAY, Apr. 22, 1992, at 46.) The decision was written on the basis of Rogers’ photograph and a photograph of Koons’ work. Both were black and white, and both were the size of a postcard. Garbus felt that the photograph did not adequately bring out the differences in Koons’ work – the unique coloring, huge size and obvious satirical intent. Curator John Caldwell agrees that it is not possible to judge artwork like Koons’ from a small photograph. (Telephone interview with John Caldwell, Curator of Painting and Sculpture, San Francisco Museum of Modern Art, Dec. 12, 1992.) Caldwell calls the decision in Rogers v. Koons “outrageous.” He comments that Rogers, who has possession of Koons’ sculpture, does not deserve it. “It’s not his work,” he explains.
Koons’ “Banality” show appropriated other images as well, with fewer legal repercussions. The cornerstone of his “Banality” phase work included a 1988 sculpture entitled “Michael Jackson and Bubbles.” The sculpture, like “Puppies,” is done on a semi-monumental scale and painted with exaggerated, garish colors. Michael Jackson, with white skin and gold clothes and decoration, is seated beside his pet chimpanzee. The image was copied directly from a publicity photograph. (Captions from the “Banality” room at Jeff Koons, exhibit at the San Francisco Museum of Modern Art, Dec. 10, 1992 through Feb. 7, 1993.) John Caldwell, Curator of Painting and Sculpture at SFMOMA, reports that according to Koons, Michael Jackson is pleased with the work. (Telephone interview with John Caldwell, Curator of Painting and Sculpture, San Francisco Museum of Modern Art, Dec. 12, 1992.) In previous works, Koons has appropriated the Pink Panther and Odie (of the Garfield cartoon), and faced lawsuits for each. (It’s Art, but is it Theft as Well?, N.Y. TIMES, Sept. 22, 1991, at D7.)
Finally, no description of Appropriationism would be complete without Marcel Duchamp’s 1919 work “L.H.O.O.Q.” – his mustachioed Mona Lisa. If Da Vinci held a copyright in 1919, it is likely that this work never could have survived its legal exposure. But then again, it would have been nearly miraculous for any painting to become such an icon of western culture within its term of copyright protection.
Marcel Duchamp (1919) L.H.O.O.Q. Norton Simon Museum
https://en.wikipedia.org/wiki/File:Marcel_Duchamp,_1919,_L.H.O.O.Q.jpg
The value of appropriation was already being questioned by the art world that created it, soon after its initial heydey. “Oh no, not another appropriationist, simulationist image-stealer,” lamented one art critic, calling the Appropriationists the “rerun tribe.” (Kevin Thomas and Suzanne Muchnic, The Art Galleries: La Cienega Area, L. A. TIMES, Oct. 16, 1987, Calendar sec. at 24.) Thirty years ago, Robert Hughes called Appropriationism a “dead end” (Robert Hughes, Mucking with Media; The Whitney Offers a Long Trek Through the Alien Goo, TIME, Dec. 25, 1989, at 93.) and an art critic for the New York Times commented, “Post-Modernism has already made its points.” (Andy Grundberg, As It Must To All, Death Comes To Post-Modernism, N.Y. TIMES, September 16, 1990, § 2, at 47.)
But while art movements may come and go, copyright law is forever. Warhol’s estate is still litigating some of his creations. In 2019, more than 30 years after Warhol’s death, a fair use case is still ongoing. (The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 1:17-cv-02532-JGK, July 1, 2019.) In 1981, Goldsmith, a photographer, took shots of the musical artist Prince in her studio. Vanity Fair magazine licensed one of these photos as an “artist’s reference”, and then commissioned Warhol to create an illustration based on the photo. Warhol ultimately created 16 silkscreen works based on the photo. After Prince died in 2016, Goldstein learned of the use, made claims of copyright infringement, and the Warhol Foundation brought an action for declaratory judgment. The District Court found the use transformative and therefore non-infringing, partially on the strength of the Cariou case. The Second Circuit, on appeal, concluded that the work was not transformative, saying “the district judge should not assume the role of art critic and seek to ascertain the intent behind or the meaning of the works at issue…judges are typically unsuited to make aesthetic judgment…” (The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 19-2420 (2d Cir. 2021) August 24, 2021.) It remanded to the district court. In this case, the Second Circuit referred to the Cariou case as a “high-water mark” for fair use, and stated that the Warhol Prince works were less transformative than those five for which it remanded in that case.
This case is still active. In December, 2021, the foundation controlling Warhol’s estate filed a petition for certiorari to the US Supreme Court to overturn the ruling, based in part upon the intervening opinion in the Oracle America v. Google case in 2021.
From the district court’s opinion.
Personal Note, and Conclusion
I first wrote about this topic in 1992, in law school, and my article in the University of Miami Entertainment & Sports Law Review was my first published legal writing. Now, in 2022, I have been in private practice for nearly 30 years, mostly in the field of copyright licensing, and written quite a lot about copyright law. During that time, of course, the world has changed, and my perspective has changed, too. In updating this article, it was interesting to revisit these ideas with a new point of view.
The decision in Cariou v. Prince was a bright note for artists, and did some good to repair the damage of Rogers v. Koons. But remedies for cases of Appropriationism that fail the fair use test have still not been addressed. In Rogers v. Koons, the court granted not only damages but an injunction, and ordered that Koons return the unsold copies of the statue to Rogers.This is what made many in the art community believe the Rogers v. Koons decision was unfair – not so much its assessment of liability, but its application of injunctive relief.
Today, the courts rely much more heavily on transformation as an element of fair use than they did 30 years ago. This factor, a nascent offshoot of factor one in 1992, is custom-made for Appropriationism, and the result in Cariou v. Prince illustrates how it can tip the balance. Today, due to the transformation test, the opinion in Rogers v. Koons or the outcome of the Warhol Flowers case could have been different. In fact, transformation is the core of what is valuable about Appropriationism. It is why we react differently to the Marlboro Man re-photography of Richard Prince, which merely reproduces the photographs of others, and the Pop Art of Andy Warhol, who transforms them so completely that his works have their own iconic status.
Also, in the meantime, the phenomenon of free culture, in which I have been heavily involved for most of my legal career, has created a lawful and privately-ordered system for appropriation in visual art. While my own practice has mostly centered on open source software licensing, open licensing in visual images has grown in concert with the open source movement–led by the Creative Commons initiative started by Larry Lessig. Both open source and Creative Commons were sea changes that were bound to happen. In the 2000s, the law was lagging far behind technology in allowing sharing of images and other copyrightable works. So, various “open” licensing models emerged to standardize license terms enough to allow sharing and improvements without complex clearance work or lawsuits–or waiting for Congress to adjust the law. In a sense, appropriation isn’t appropriation if it’s allowed. Perhaps that is one reason why the case law in this area has slowed during the intervening years. A great deal of material is available under terms that allow sharing and transformation, via licensing vehicles that did not exist in the 1990s. But also, Appropriationism is partially a commentary on the very copyright law that threatened to silence it. So now that there are free culture licenses, it is fair to ask, how much does Appropriationism matter anymore?
The reuse of images on the Web is rampant, of course, but I distinguish the use of commercial images in fine art from the use of media images in fan art, memes or mash-ups. Many owners of commercial images actually encourage fan art, because it is mainly an homage that enhances the market for their media properties. See, for example, Star Trek promotion of fan art.
So, while the Web is rife with this kind of appropriation, it is rarely litigated. In fact, allowing use of media images in fan art is a way that media companies exercise control over what might otherwise be fair use, because they often impose “morality clauses” that limit re-use in ways that would be offensive or derogatory. (See for example the DC guidelines.) For Appropriationism, on the other hand, casting the original in an unfavorable light is usually the whole point.
In 1992, I suggested that injunctive relief for Appropriationist art was not good policy, and that copyright infringement damages–particularly disgorgement of profits–could be a proxy for a compulsory licensing model, given a music-style compulsory license model would not work for fine art. It’s easy to suggest something like compulsory licensing as a newly-minted lawyer. But even with the perspective of 30 years of practice, I haven’t changed my view much. I still think that the courts should maintain a baseline definition of fair use, for which there is no liability, and accommodate Appropriationism by changing not the scope of the defense, but the availability of remedies. Injunctive relief should not be available in fine art, because of its chilling effect on expression. In other words, to me, it might have been reasonable for Koons or Warhol to share some of their proceeds from their art with those whose images they appropriated, but the fact that Rogers owns the only extant copy of Koons’ String of Puppies is a small tragedy. Artists can be ordered to share their profits, but shouldn’t be ordered to give up their creative works to those trying to silence them.
I still perceive a difference between fine art and mere everyday Internet appropriation of images, and think that injunctive relief should be an available remedy for the latter. The challenge, of course, is to distinguish between the two, and I leave that to the next generation to sort out.
A prior version of this article, entitled “The Ineluctable Modality of the Visible: Fair Use and Fine Arts in the Post-Modern Era” appeared in the University of Miami Entertainment & Sports Law Review in 1993, available at: http://repository.law.miami.edu/umeslr/vol10/iss1/9. Thanks to both the University of Miami Entertainment & Sports Law Review for publishing my article in the first place, and to the editors of The Green Bag for encouraging me to update it.