OPINION Appropriation Art under Copyright Protection: Recreation or Speculation? Marina P. Markellou Adj, Lecturer IP Law Attorney mmarkellou@voila.tr This opinion explores the possibilities and pitfalls connected with the creative use of pre-ensting images with themes limited t0 appropriation, creativity and collaborative practices. Contemporary ert cen fascinate, imitate or even ceuse embarassment and frustration to the legal world Contemporary et picceshave recently attracted attention, in the world of the postmodern axt market as well as in couts by challenging the binarism of axiginel end copy, since they seem to ignore major concepts in copyright lew such as originality, authorship and the classical dichotomy of anidea andits conccete expression ‘Tracktionlly tobe eligible for copysight protection @ work of ext must be embodied in en onginal form perceptible to the senses, excluding any ides or concept! ‘The District Court of Peris held in 1988 that “the cubist genre stemming from Picasso's creative intention cennat bo the subject of a monopoly”. This judgment serves as reminder thet a balance must be foundin order to foster creativity by protecting it, without, however, stifling it through excessive protection. The definition of originality is a complicated tesk mainly owing to the fact thet stis « dynamic notion It thas been described as a “variable geometry notion” Opinion 369 ‘because its level has to be seen as the emount—lower or hhigher—of literary, scientific or astistic activity or creetivity which is necessary to constitute @ work’ The notion is defined neither in international treaties nor in the vast majority of national copyright laws, end its interpretation hes been mainly left to the courts. ‘Two main methods of conception cen be observed, The subjective conception infers orignality from the stemp of the author's personality on the work. But what exactly do we meen when we demand “I‘empriat de la personnalité de Vauteww”? Pest of the legal literature suggests that originality may be found if the artist hed personally executed the work‘ This requirement is considerably out of step with contemporary creetion From Sol Le\Witt to Jeff Koons, contemporary creation reveals the non-essential character of personal execution Isit not rather the consideration of @ more intellectual contribution ofthe creation that will justify the copyright protection? The objective conception of originality presupposes the existence of choice in the creative process It seems that the objectivisetion of choice (‘le choix objectivisé”) is an element thet should be more seriously taken into consideration by judges when they are confronted with legal ceses thet concem postmodern at’ Undenisbly art is evolving fester than its legal framework The boundaries between non-protectable ideas, concepts or styles and work- embodied protection are not easily ceewn. Additionally, to be copyrightable stricto sensu awork must be “original” in the sense that itisthe result of the creator's ownintellectual efforts and not itself « copy. Is this requirement compatible with contemporary artistic practices? In 1993, Kenly Ames stated that “[TJtoughout the twentieth century, « significant umber of estists, working in various media, have explored the possibilities of appropriation, both as amode of creation and as a method for articulating social criticism.” Appropuistion is « relatively common attistic practice ‘that wes theoretically legitimised by Marcel Duchamp, who is considered to be the father of eppropriation practice with his “ready-mades” at the beginning of the 20th century, by the conceptual artists in the 1960s and recently to a brondes extent by postmodern theary as well asby cultural studies. Marcel Duchamp observed already in 1915 thet: “The choice of ready-made is always based on visual indifference and, at the same time, onthe total sbsence of good or bad taste. Now ahead, an artist ‘1 Pence “Copyigt oblms i Post Modem At"(201) SDePRULCAT. At Bit LS. *Dars Duwct Cou, fa 3, 198 [1999] Guz Al sam. 699-200, SNidluy. ‘Copmige Organs edt ode he scnes fore mame aces fer visu oaks" (3006) 58 Bayh Lar. 778. SE Tepes, "Wate rotcan() fx cextmparey at” (006) 08 LDA SL. °M¢ Nkein “hom Copii Copy entropy to Copyang ox Hithr hd been alu how hay wold we be” Masingap Cire: The ise fie Gena aad Content, aces ef COUNTER ‘arerty, Ney 13-18, 208 Uppe 2 Lawell “Toward soar engnay said fr copyigleui3001) 438 CL. Rev 193 2 Henly men "Beyad ognets Koune A ax Ue Soninfax Arcata” (093)93 Cok. LR. 1473. 2 EEPR tour 70 2013 Damsn Rtas (efssl) UK Lan eden Cornans370 European Intellectual Property Review {sno longer just a person who produces a work; he 4, above all, creator who makes choices and these choices make him an artist” Formeany specialists ofthe et community, appropriction, sxtisnot an et movement with e proper and autonomous existence. Neither is it a movement with one common politcal purpose. Itisrather the very“language” inwhich, the postmodenist debate was conducted. It sefers to the prectice of using pre-existing works of at, and the technique of boxowing “fomd” images and se-contertualising them. The appropriation ast pieces of| Andy Wathol, Sindy Sherman, Barbara Keuger or Shepard Fauey“‘may be understood to edévess eperticuler politcal agenule, question consumerism, oppose war, investigate the function of popular media or explore gender or racial {dentity—often simultencously’’ The Amesican seulptor BexberaBloom often commissions or collects objects that sppear to dete from easier periods of history She stated thet: “I don't make stuff, I alter it I don’t hve the handmade element... What I do es an artist is talc fon the phone, and work with the creftsperson who produceswhat] want andmake sure they doit ight ‘There is no messy room; I work in my home.”"" ‘The epochel exhibition thet launched the appropriation aut style based on possession of the images and artefacts of others is the “Pictwes” show organised by Douglas Crimp at Artists Space in 1977. “Pictures” exhibited the work of five artists (Toy Brauntuch, Jeck Goldstein, ‘Sherrie Levine, Robert Longo endPhilip Smith) who had in common their interest in “the photographicelly-based amass media as a resource to be raided and re-used” " Asawell-recognised and historically well-established movement—from Picasso and Braque’s collages to pop st and postmodern art—appropriation art is undeniably ‘a prominent component of the art that museums display and acquite today. However, it has become particularly important to consider whet is being or what could be protectedfrom the copyright perspective: an original work of expression, a work of Inbour or just an uncrthodox idea? This question reveals the fact thet the lines of application end theory are easily blurred. In ow opinion, some important cases in France and in the United States should be exeminedin order to enlighten this significant issue M Beh Ze ple de Pe tcomtnpr cin (Las wins de Mam. 199), France—a broader judicial interpretation of postmodern artistic creation In France, two interesting legal cases reveal how much, the copysight system is being confronted by postmodem, autistic practices. In the Gandel v Bettina Reims case in 2008 the Cour de Cessation held for the first time « very ‘broad interpretation of axtstic creation. The Supreme oust stated that the combination of eesthetic choices seflects the author's personality The cout acknowledged thatthe conceptual approech of Gautel in diverging from common sense by putting the word “Paradise” in gold letters in e perticuler place, such as the dor of en old psychistic senetorium, had beenmaterielly expressedin ‘en originel form end thus enjoyed copyright protection. Bettine Reims, the well-known photogrepher, infiinged Gautel’s copysight when she created her New ve, a photograph representing emodel in the cen of Gautel’s installation without askinghis permission The cout noted thatthe idee of including the word “Paradise” ona sordid toilet door can be protected by copyright as long ast is xiginal. ‘This broader approach to originelity was established inthe CyTowmbly case. 1n2007, the French Cambodien autist Rindy Sem was so overcome by Twombly's all-white Phaedus thet she kissed: leaving ed lipstick smeared across the multi-million dollar eanves. After she ‘was arrested, Sem seiditwaspartofher own art practice “I Left a kiss, a red stain remained on the canvas This red stain is testimony to this moment, to the power of art. Twombly hes left this white for me to come and live init. My kiss hs made this painting even more beautiful.” Regarding the originality of Cy Tombly's atwork, the District Cout of Avignon stated thet: “Jo be entisely white the canvas object expresses a humony and a balance intended by the painter. ‘The addition of a trace of seduction kiss distorts the tutist’s approachwho consideredhis work completed. snd didn't want eny futher modification on it ‘Whether or not warked by the painter, the object of the painting was intentionally chosen by the astist nd consists its intistic artistic value.” United States—judicial unpredictability towards postmodern artistic creation ‘The American judges seem to be more reluctant or even ‘unpredictable than their colleagues in France. This may reflect a leck of understanding and application of the history of art to the analysis of copyright infringement Temay alsoreflect a concein about whether it is useful to "Gon Pnce Brat of As Cunt, ie A Vihol Foun fete View] Ata m appar of defediets peli meagre 8 pT {pba snd eulghlCr ou racer ol Fodanouicas taf [cessed Nay 8.013) ‘Spey. The af nt ahang The new Aa sen Eelatnip (hes Fa 2011) “Dend Bras, Todt Seren Npesaf a ‘Bruch Sgrene Cort Noventer 1 2008 [309] D. 266 op tna Der rns ed). Arora (Clg, MA-MOT Bes, 2000) p12. | See Duingmeet ts fee fede" ly 31 2007), 28C News, pS co al/Mieopel69077 sm [Acesed May 4,203). ‘ign Dstt Coat Norenber 16,007 [OS] D8. 2 EEPR tour 70 2013 Damsn Rtas (efssl) UK Lan eden Cornanscreate additional monopolies that could stifle creativity Itis certein, though, that thislegel unpredictability raises concem sbout whether the author will no longer be inspired by others’ works because of feass ebout what is free and what is not free to use, owing to legel criteria that are not operstive. Sherrie Levine is petheps the best-known end most frequently cited appropriation ais. In 1979 she photographed work by the photographer Walker Evans from 1936, Her work did not attempt to edit or manipulate any of these images, but simply capture them. Berbera Kruger’s work utilised medie imagery in fn attempt to interpret consumer society. In « 1988, interview she insisted: “Lwork with pictwes and wards because they have the ability to determine who we are, what we want tobe andwho we become” ‘The Koons cases best exemplify judicial confusion over what constitutes fair use." In the first case, Rogers v Koons, the photographer Art Rogers brought « suit against Jeff Koons for his use of Rogess’s photograph, Figpies, to create a scuipture Koons entitled String of Fagpies. Koons argued that his use of Rogers's Pigpies to create String of Pippies wes a feir use, his sculpture wwas a satire or parody on contemporary society The Second Circuit rejected this retionele and ruled that “If an infhingement of copysighteble expression could be justified as fair use solely on the basis of the infringer’s claim to higher or different artistic ‘use—without insuing public awareness of the original work—there would be no practicable ‘boundary tothe fer use defense.”” A few yearslater, the same court took a different position from its earlier ling In Blanch Koons, Andcea Blanch, fa fashion photographer, sued Koons for copyright infringement. Koons used Blench’s photographin one of bis Essyfun-Ethereal paintings, Niagara Koons took Blanch’s photograph, Silk Sandals by Gueci, from an Allure magazine article about metallic cosmetics, scanned, it ontohis computer, elteredit by extracting only the legs from the photograph, modified them end then superimposed them onto pastoral landscape slong with, other images. Despite the fact that Koons appropriated Blanch’s image, the cout found thet the use was fai. ‘They explained thet Koons’s objective in using Blanch’s work wes different from Blanch’s objective in cresting her photograph. The cout concluded by stating that “copyright law's goal of ‘promoting the Progress of SB. Braga, Thinking of Bu (MA: MIT Ress, 199) Opinion 371 Science and useful Arts’... would be better served by allowingKoons'suse of ‘SillSendals’ then by preventing tn Recently, in ¢ closely watched copyright case, Judge Deboreh A. Butts found thet the appropriation astst Richard Prince's Canal Zone series had inapproprictely. ‘borrowed from Patrick Ceriou's photographs of Jemeicen, Rastafasians Patrick Cesriou spent more than five years with Resteferiansin Jamaice, geined their trust and took their portraits In 2000, Cessiou published @ book of photographs, entitled Yes, Rasta, by Powethouse Books, containing both portrait and lendscepe photos. In 2007 Richard Prince showed artwork et the Eden Rock Hotel Among the works shown was a collage series entitled Canal Zone which consisted of 35 photogrephs torn from Yes, Rasta Prince completed 29 paintings in his Canal Zone series, 28 of whichincludedimagestaken from Yes Rasta, images that albeit were colleged enlarged, cropped, tinted and/or over-painted Criou sued Prince, Gagosian Gellery end Lawrence Gagosienfor copyright infringement. The district refused, to find that appropriation ert is per se fair use regardless of whether or not the new artwork in any way comments on the originel works appropriated.” Prince's paintings, to the extent they merely recast, transform or adept the photos, ere inftinging desivetive works. In creating the printings, Prince did not intend to comment on any aspects of the orignal works or on the broader culture ‘The Gallery end Richard Prince were ordered to stop infringing Casiou's photogrephs in any way end to “[DJeliver up for impounding destruction, or other disposition, as Pleintiff determines, all infinging copies of the Photogrephs, including the Paintings end unsold copies of the Canal Zane exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes film negatives, discs, and other esticles for making such infringing copies” This case caused intense reactions in the ast world, Both the Association of Art Museum Directors and most importantly US institutions—such as the Metropolitan, Museum of Art, MoMA, the Solomon Guggenheim Foundetion—as well es the Andy Werhol Foundation filed an amicus brief in support of the epproprietion tutist’s appeal The cultural institutions claimed thatthe istrict court's ring by- ‘SH Meow, “All sntfus ae endo Unde ete fee iar Rags. Koa” (193) $0 Bre, L Re. 373, " fogas Hoons 960 34301, 10 (04 C1992) A Mind Hoon te Slowen E Gaggenhem Fowndason ed Deviche Bank AG. Defenats-Apeles, Usted Sates Couto Appt, Seca Creu, Dodet WoO 6453. CV ged en Ocaber 36,208 SR Rlmmey Teg res gun Paha oe copy cas”(March 2, 2011) New Br Tues, ep Slrtiea Bogs mis com/200S fudge wesaganst Matick ncesnecopyighcaze Accessed May 1.2013] Grin v race 0s CV 1835 D4 Y Mech 1, 011\p3 © rion race, Bader nei Curae Te Asocatand At Masems Deas eal spat wpelets aezeresap 7. Masia combed ad appetite con eea¥01 1023 (acesed Ny 13,2013). 2 EEPR tour 70 2013 Damsn Rtas (efssl) UK Lan eden Cornans372. Ewwopeen Intellectual Property Review “[BJasing liability simply on an artist's reputation, cof the failure to inquire about the materials used in an artwork, would place # severe burden on att ‘museums end could deter them from displaying or ‘acquiring an important body of ert.” Such asesult: “[C]ould punish cultural institutions and censure educational activities that pose no threat to the original copyright holder, and it could harm the public by limiting access to siguificent creative works” (On Apuil25, 2013 the second US Circuit Cout of Appeals in Manhatten reversed the district's cowt finding of infingement. The decision ruled thet Prince had sufficiently transformed 25 of 30 pictures taken by the photographer Patrick C atiou so that Prince’s art could be considered a “feir use” of Cariou’s work. According to the appeals cout, “Prince did little more then paint blue lozenges over the subject's eyes and mouth, and paste a picture of a guitar over the subject's body”,” and thet: “[T]he lew imposes no requirement that work comment on the original or its author in order to be considered trensformetive, end a secondary work ‘may constitute @ fair use even if it serves some ‘purpose other then those (criticism, comment, news reporting teaching scholarship, and research) identified in the preamble to the statute” What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about « particular piece or body of work. Prince’s work could be transformative even without commenting onCariou’s work or on cultixe, end even without Prince’s stated intention to do so. Despite the importance of this US Cowt of Appeals ruling, one should not conclude with certainty thet any cosmetic changes to the photographs would necessarily constitute feis use. Even if it is certain thet this decision is significant for artists who specialise in transforming images into new works of art, the fact is that potential ‘users should be extremely vigilant regerding potential copyright infiingement claims derived from their activities. That means thet they should inquire as to the sowce of the pre-existing material contained in the appropriation work of art. Conclusion In ow postmodem society, copyright is inevitebly opposed to art. Especially in the case of appropristion aut, the mein difficulty isthe fact thet appropsiation artists, Neo-Pop artists or Picture Generation avtists use existing objects, works and images alzeady protected by copyright. Some difficult questions arise, with far-reaching implicetions not only for photographers, but for everyone who embraces the remix eesthetic of digital culture, and appropriates content Some commentators suggest the total abandonment of copyright system asithes become obsolete andno longer corresponds to the modem needs of at." But the problem isnot thet art cennot exist within any copyright system. We should not treet artin our legal culture asnon-ait, but wwe should revisit the existing principles of the copyright system inorder toretionalise the criteria and embrace the new sutistic practices, How should copyright evolve to deal with the reality of artists in a digital world? How should the ast world, deal with such questions morelly and ethically? Do we needto extend the scope of copyright protection? Do we need a sui generis system of legal licensing for axtistic puxposes in order to re-establish the balance between contemporary artistic creation end protection? These axe some of the most significent questions thet will certainly preoccupy the academic world in the near future with regerdto the apprecistion of postmodern artistic creation boy copyright law. Definitively, in my opinion, the choice tobe tekenis « political and economic one rether than a legal one. This choice is closely related to the evaluation of the political, financial and artistic repercussions thet could potentially be implied by a legal exclusion of all the autistic movements thet have appeared since the 1960s © cuiony Prince, rox bic Curie The Assocation of At sean Directs etal n spate pellets ndrerasal p 7, Meuse comicse feral appetite cow oe 1023 (acesed Ny 13,2013) Grin race 2013, WS. DS. SQrion Face Ag 2013 G7 arp ‘SE a" Agyrguatom At nd Fer Use" (200) § Chi Stan Dip. Reso. 1085, TSG Boggs Ws ones tus” (1003) 69 Chase. Rev 69. 2 EEPR tour 70 2013 Damsn Rtas (efssl) UK Lan eden Cornans