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OPINION

Appropriation Art under
Copyright Protection:
Recreation or
SpecuIation?
Marina P. MarkeIIou
Adj. Lecturer IP Law Attorney
m.markellou@voila.fr
This opinion explores the possibilities and pitfalls
connected with the creative use of pre-existing images
with themes limited to appropriation, creativitv and
collaborative practices.
Contemporary art can Iascinate, irritate or even cause
embarrassment and Irustration to the legal world.
Contemporary art pieces have recently attracted attention
in the world oI the postmodern art market as well as in
courts by challenging the binarism oI original and copy,
since they seem to ignore major concepts in copyright
law such as originality, authorship and the classical
dichotomy oI an idea and its concrete expression.
Traditionally, to be eligible Ior copyright protection a
work oI art must be embodied in an original Iorm
perceptible to the senses, excluding any idea or concept.
1
The District Court oI Paris held in 1988 that 'the cubist
genre stemming Irom Picasso`s creative intention cannot
be the subject oI a monopoly¨.
2
This judgment serves as
a reminder that a balance must be Iound in order to Ioster
creativity by protecting it, without, however, stiIling it
through excessive protection.
The deIinition oI originality is a complicated task
mainly owing to the Iact that it is a dynamic notion. It
has been described as a 'variable geometry notion¨
because its level has to be seen as the amountlower or
higheroI literary, scientiIic or artistic activity or
creativity which is necessary to constitute a work.
3
The
notion is deIined neither in international treaties nor in
the vast majority oI national copyright laws, and its
interpretation has been mainly leIt to the courts.
Two main methods oI conception can be observed.
The subjective conception inIers originality Irom the
stamp oI the author`s personality on the work. But what
exactly do we mean when we demand 'lemprunt de la
personnalite de lauteur¨? Part oI the legal literature
suggests that originality may be Iound iI the artist had
personally executed the work.
4
This requirement is
considerably out oI step with contemporary creation.
From Sol LeWitt to JeII Koons, contemporary creation
reveals the non-essential character oI personal execution.
Is it not rather the consideration oI a more intellectual
contribution oI the creation that will justiIy the copyright
protection
5
? The objective conception oI originality
presupposes the existence oI choice in the creative
process. It seems that the objectivisation oI choice ('le
choix obfectivise¨) is an element that should be more
seriously taken into consideration by judges when they
are conIronted with legal cases that concern postmodern
art.
6
Undeniably art is evolving Iaster than its legal
Iramework. The boundaries between non-protectable
ideas, concepts or styles and work-embodied protection
are not easily drawn. Additionally, to be copyrightable
stricto sensu a work must be 'original¨ in the sense that
it is the result oI the creator`s own intellectual eIIorts and
not itselI a copy. Is this requirement compatible with
contemporary artistic practices?
In 1993, Kenly Ames stated that:
'|T|hroughout the twentieth century, a signiIicant
number oI artists, working in various media, have
explored the possibilities oI appropriation, both as
a mode oI creation and as a method Ior articulating
social criticism.¨
7
Appropriation is a relatively common artistic practice
that was theoretically legitimised by Marcel Duchamp,
who is considered to be the Iather oI appropriation
practice with his 'ready-mades¨ at the beginning oI the
20th century, by the conceptual artists in the 1960s and
recently to a broader extent by postmodern theory as well
as by cultural studies. Marcel Duchamp observed already
in 1915 that:
'|T|he choice oI ready-made is always based on
visual indiIIerence and, at the same time, on the total
absence oI good or bad taste. Now ahead, an artist
1
L. Petruzzelli, 'Copyright Problems in Post-Modern Art¨ (2011) 5 DePaul-LCA J. Art & Ent. L. 115.
2
Paris District Court, June 3, 1998 |1998| Gaz Pal, somm. 689690.
3
M. Murray, 'Copyright, Originality, and the end oI the scenes a Iaire and merger doctrines Ior visual works¨ (2006) 58 Baylor L. Rev. 779.
4
E. Treppoz, 'What legal protection(s) Ior contemporary art?¨ (2006) 209 RIDA 51.
5
M. Markellou, 'From Copyright to CopyleIt and Irom CopyleIt to Copywrong or II Hitler had been a hippy how happy would we be?`¨ in Mashing-up Culture. The Rise
of User Generated Content, Proceedings oI COUNTER Workshop, Uppsala University, May 1314, 2009.
6
R. Littrell, 'Toward a stricter originality standard Ior copyright law¨ (2001) 43 B.C.L. Rev. 193.
7
E. Kenly Ames, 'Beyond Rogers v/ Koons: A Fair Use Standard Ior Appropriation¨ (1993) 93 Colum. L. Rev. 1473.
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is no longer just a person who produces a work; he
is, above all, a creator who makes choices and these
choices make him an artist.¨
8
For many specialists oI the art community, appropriation
art is not an art movement with a proper and autonomous
existence. Neither is it a movement with one common
political purpose. It is rather the very 'language¨ in which
the postmodernist debate was conducted. It reIers to the
practice oI using pre-existing works oI art, and the
technique oI borrowing 'Iound¨ images and
re-contextualising them. The appropriation art pieces oI
Andy Warhol, Sindy Sherman, Barbara Kruger or Shepard
Fairey 'may be understood to address a particular political
agenda, question consumerism, oppose war, investigate
the Iunction oI popular media or explore gender or racial
identityoIten simultaneously¨.
9
The American sculptor
Barbara BloomoIten commissions or collects objects that
appear to date Irom earlier periods oI history. She stated
that:
'I don`t make stuII, I alter it. I don`t have the
handmade element . What I do as an artist is talk
on the phone, and work with the craItsperson who
produces what I want and make sure they do it right.
There is no messy room; I work in my home.¨
10
The epochal exhibition that launched the appropriation
art style based on possession oI the images and arteIacts
oI others is the 'Pictures¨ show organised by Douglas
Crimp at Artists Space in 1977. 'Pictures¨ exhibited the
work oI Iive artists (Toy Brauntuch, Jack Goldstein,
Sherrie Levine, Robert Longo and Philip Smith) who had
in common their interest in 'the photographically-based
mass media as a resource to be raided and re-used¨.
11
As a well-recognised and historically well-established
movementIrom Picasso and Braque`s collages to pop
art and postmodern artappropriation art is undeniably
a prominent component oI the art that museums display
and acquire today. However, it has become particularly
important to consider what is being or what could be
protected Iromthe copyright perspective: an original work
oI expression, a work oI labour or just an unorthodox
idea? This question reveals the Iact that the lines oI
application and theory are easily blurred.
In our opinion, some important cases in France and in
the United States should be examined in order to enlighten
this signiIicant issue.
France-a broader judiciaI interpretation
of postmodern artistic creation
In France, two interesting legal cases reveal how much
the copyright system is being conIronted by postmodern
artistic practices. In the Gautel v Bettina Reims case in
2008 the Cour de Cassation held Ior the Iirst time a very
broad interpretation oI artistic creation. The Supreme
Court stated that the combination oI aesthetic choices
reIlects the author`s personality. The court acknowledged
that the conceptual approach oI Gautel in diverging Irom
common sense by putting the word 'Paradise¨ in gold
letters in a particular place, such as the door oI an old
psychiatric sanatorium, had been materially expressed in
an original Iorm and thus enjoyed copyright protection.
Bettina Reims, the well-known photographer, inIringed
Gautel`s copyright when she created her New Eve, a
photograph representing a model in the centre oI Gautel`s
installation without asking his permission. The court noted
that the idea oI including the word 'Paradise¨ on a sordid
toilet door can be protected by copyright as long as it is
original.
12
This broader approach to originality was established
in the Cy Towmbly case. In 2007, the French-Cambodian
artist Rindy Sam was so overcome by Twombly`s
all-white Phaedrus that she kissed it, leaving red lipstick
smeared across the multi-million dollar canvas. AIter she
was arrested, Samsaid it was part oI her own art practice:
'I leIt a kiss, a red stain remained on the canvas.
This red stain is testimony to this moment, to the
power oI art. Twombly has leIt this white Ior me to
come and live in it. My kiss has made this painting
even more beautiIul.¨
13
Regarding the originality oI Cy Tombly`s artwork, the
District Court oI Avignon stated that:
'|T|o be entirely white the canvas object expresses
a harmony and a balance intended by the painter.
The addition oI a trace oI seduction kiss distorts the
artist`s approach who considered his work completed
and didn`t want any Iurther modiIication on it.
Whether or not worked by the painter, the object oI
the painting was intentionally chosen by the artist
and consists its intristic artistic value.¨
14
United States-judiciaI unpredictabiIity
towards postmodern artistic creation
The American judges seem to be more reluctant or even
unpredictable than their colleagues in France. This may
reIlect a lack oI understanding and application oI the
history oI art to the analysis oI copyright inIringement.
It may also reIlect a concern about whether it is useIul to
8
N. Heinich, Le triple feu de lart contemporain (Les editions de Minuit, 1998).
9
Cariou v Prince, BrieI oI Amicus Curiae, The Andy Warhol Foundation Ior the Visual Arts, Inc in support oI deIendants-appellants and urging reversal, p.19, http./
/cvberlaw.stanford.edu/briefs/CariouJPrinceWarholFoundationAmicusBrief.pdf |Accessed May 5, 2013|.
10
M. Petry, The Art of not making, The new Artist/Artisan Relationship (Thames & Hudson, 2011).
11
David Evans, 'Introduction/Seven Types oI Appropriation¨ in David Evans (ed,), Appropriation (Cambridge, MA: MIT Press, 2009), p.12.
12
French Supreme Court, November 13, 2008 |2009| D. 266.
13
See 'Painting meets its Iemme Iatale¨ (July 21, 2007)), BBC News, http.//news.bbc.co.uk/2/hi/europe/6910377.stm |Accessed May 4, 2013|.
14
Avignon District Court, November 16, 2007 |2008| D. 588.
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create additional monopolies that could stiIle creativity.
It is certain, though, that this legal unpredictability raises
concern about whether the author will no longer be
inspired by others` works because oI Iears about what is
Iree and what is not Iree to use, owing to legal criteria
that are not operative. Sherrie Levine is perhaps the
best-known and most Irequently cited appropriation artist.
In 1979 she photographed work by the photographer
Walker Evans Irom 1936. Her work did not attempt to
edit or manipulate any oI these images, but simply capture
them. Barbara Kruger`s work utilised media imagery in
an attempt to interpret consumer society. In a 1988
interview she insisted:
'I work with pictures and words because they have
the ability to determine who we are, what we want
to be and who we become.¨
15
The Koons cases best exempliIy judicial conIusion
over what constitutes Iair use.
16
In the Iirst case, Rogers
v Koons, the photographer Art Rogers brought a suit
against JeII Koons Ior his use oI Rogers`s photograph,
Puppies, to create a sculpture Koons entitled String of
Puppies. Koons argued that his use oI Rogers`s Puppies
to create String of Puppies was a Iair use; his sculpture
was a satire or parody on contemporary society. The
Second Circuit rejected this rationale and ruled that:
'II an inIringement oI copyrightable expression
could be justiIied as Iair use solely on the basis oI
the inIringer`s claim to a higher or diIIerent artistic
usewithout insuring public awareness oI the
original workthere would be no practicable
boundary to the Iair use deIense.¨
17
AIewyears later, the same court took a diIIerent position
Iromits earlier ruling. In Blanch v Koons, Andrea Blanch,
a Iashion photographer, sued Koons Ior copyright
inIringement. Koons used Blanch`s photograph in one oI
his EasyIun-Ethereal paintings, Niagara. Koons took
Blanch`s photograph, Silk Sandals bv Gucci, Irom an
Allure magazine article about metallic cosmetics, scanned
it on to his computer, altered it by extracting only the legs
Irom the photograph, modiIied them and then
superimposed themon to a pastoral landscape along with
other images. Despite the Iact that Koons appropriated
Blanch`s image, the court Iound that the use was Iair.
They explained that Koons`s objective in using Blanch`s
work was diIIerent Irom Blanch`s objective in creating
her photograph. The court concluded by stating that
'copyright law`s goal oI promoting the Progress oI
Science and useIul Arts` . would be better served by
allowing Koons`s use oI Silk Sandals` than by preventing
it .¨.
18
Recently, in a closely watched copyright case, Judge
Deborah A. Butts Iound that the appropriation artist
Richard Prince`s Canal Zone series had inappropriately
borrowed IromPatrick Cariou`s photographs oI Jamaican
RastaIarians. Patrick Carriou spent more than Iive years
with RastaIarians in Jamaica, gained their trust and took
their portraits. In 2000, Carriou published a book oI
photographs, entitled Yes, Rasta, by Powerhouse Books,
containing both portrait and landscape photos. In 2007
Richard Prince showed artwork at the Eden Rock Hotel.
Among the works shown was a collage series entitled
Canal Zone which consisted oI 35 photographs torn Irom
Yes, Rasta. Prince completed 29 paintings in his Canal
Zone series, 28 oI which included images taken IromYes,
Rasta, images that albeit were collaged, enlarged,
cropped, tinted and/or over-painted.
Cariou sued Prince, Gagosian Gallery and Lawrence
Gagosian Ior copyright inIringement. The district reIused
to Iind that appropriation art is per se Iair use regardless
oI whether or not the new artwork in any way comments
on the original works appropriated.
19
Prince`s paintings,
to the extent they merely recast, transIorm or adapt the
photos, are inIringing derivative works. In creating the
paintings, Prince did not intend to comment on any
aspects oI the original works or on the broader culture.
The Gallery and Richard Prince were ordered to stop
inIringing Cariou`s photographs in any way and to:
'|D|eliver up Ior impounding, destruction, or other
disposition, as PlaintiII determines, all inIringing
copies oI the Photographs, including the Paintings
and unsold copies oI the Canal Zone exhibition book,
in their possession, custody, or control and all
transparencies, plates, masters, tapes, Iilmnegatives,
discs, and other articles Ior making such inIringing
copies.¨
20
This case caused intense reactions in the art world.
Both the Association oI Art Museum Directors and most
importantly US institutionssuch as the Metropolitan
Museum oI Art, MoMA, the Solomon Guggenheim
Foundationas well as the Andy Warhol Foundation
Iiled an amicus brieI in support oI the appropriation
artist`s appeal.
21
The cultural institutions claimed that the
district court`s ruling, by:
15
B. Kruger, Thinking of You (MA: MIT Press, 1999).
16
W. McLean, 'All `s not Iair in art and war: A look at the Iair use deIense aIter Rogers v. Koons¨ (1993) 59 Brook. L. Rev. 373.
17
Rogers v Koons 960 F. 2d 301, 310 (2d Cir. 1992).
18
A. Blanch v J. Koons, the Solomon R. Guggenheim Foundation, and Deutsche Bank AG, DeIendants-Appellees, United States Court oI Appeals, Second Circuit, Docket
No.05-6433-CV, argued on October 26, 2006.
19
R. Kennedy, 'Judge rules against Richard Prince in copyright case¨ (March 21, 2011), New York Times, http.//artsbeat.blogs.nvtimes.com/2011/03/21/fudge-rules-against
-artist-richard-prince-in-copvright-case |Accessed May 13, 2013|.
20
Cariou v Prince 08 CV 11327 (S.D.N.Y. March 18, 2011), p.37.
21
Cariou v Prince, BrieI Ior Amici Curiae The Association oI Art Museum Directors et al. in support oI appellants and reversal, p.7, http.//law.fustia.com/cases/federal
/appellate-courts/ca2/11-1197/125/ |Accessed May 13, 2013|.
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'|B|asing liability simply on an artist`s reputation,
or the Iailure to inquire about the materials used in
an artwork, would place a severe burden on art
museums and could deter them Irom displaying or
acquiring an important body oI art.¨
Such a result:
'|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 signiIicant creative
works.¨
22
On April 25, 2013 the second US Circuit Court oI Appeals
in Manhattan reversed the district`s court Iinding oI
inIringement. The decision ruled that Prince had
suIIiciently transIormed 25 oI 30 pictures taken by the
photographer Patrick Cariou so that Prince`s art could be
considered a 'Iair use¨ oI Cariou`s work. According to
the appeals court, 'Prince did little more than paint blue
lozenges over the subject`s eyes and mouth, and paste a
picture oI a guitar over the subject`s body¨,
23
and that:
'|T|he law imposes no requirement that a work
comment on the original or its author in order to be
considered transIormative, and a secondary work
may constitute a Iair use even iI it serves some
purpose other than those (criticism, comment, news
reporting, teaching, scholarship, and research)
identiIied in the preamble to the statute.¨
24
What is critical is how the work in question appears to
the reasonable observer, not simply what an artist might
say about a particular piece or body oI work. Prince`s
work could be transIormative even without commenting
on Cariou`s work or on culture, and even without Prince`s
stated intention to do so.
Despite the importance oI this US Court oI Appeals
ruling, one should not conclude with certainty that any
cosmetic changes to the photographs would necessarily
constitute Iair use. Even iI it is certain that this decision
is signiIicant Ior artists who specialise in transIorming
images into new works oI art, the Iact is that potential
users should be extremely vigilant regarding potential
copyright inIringement claims derived Irom their
activities. That means that they should inquire as to the
source oI the pre-existing material contained in the
appropriation work oI art.
ConcIusion
In our postmodern society, copyright is inevitably
opposed to art. Especially in the case oI appropriation
art, the main diIIiculty is the Iact that appropriation artists,
Neo-Pop artists or Picture Generation artists use existing
objects, works and images already protected by copyright.
Some diIIicult questions arise, with Iar-reaching
implications not only Ior photographers, but Ior everyone
who embraces the remix aesthetic oI digital culture, and
appropriates content.
25
Some commentators suggest the total abandonment oI
copyright systemas it has become obsolete and no longer
corresponds to the modern needs oI art.
26
But the problem
is not that art cannot exist within any copyright system.
We should not treat art in our legal culture as non-art, but
we should revisit the existing principles oI the copyright
systemin order to rationalise the criteria and embrace the
new artistic practices.
How should copyright evolve to deal with the reality
oI artists in a digital world? How should the art world
deal with such questions morally and ethically? Do we
need to extend the scope oI copyright protection? Do we
need a sui generis system oI legal licensing Ior artistic
purposes in order to re-establish the balance between
contemporary artistic creation and protection? These are
some oI the most signiIicant questions that will certainly
preoccupy the academic world in the near Iuture with
regard to the appreciation oI postmodern artistic creation
by copyright law. DeIinitively, in my opinion, the choice
to be taken is a political and economic one rather than a
legal one. This choice is closely related to the evaluation
oI the political, Iinancial and artistic repercussions that
could potentially be implied by a legal exclusion oI all
the artistic movements that have appeared since the 1960s.
22
Cariou v Prince, BrieI Ior Amici Curiae The Association oI Art Museum Directors et al. in support oI appellants and reversal, p.7, http.//law.fustia.com/cases/ federal
/appellate-courts/ca2/11-1197/125/ |Accessed May 13, 2013|.
23
Cariou v Prince , April 25, 2013, 11-1197-cv, p.6.
24
Cariou v Prince , April 25, 2013, 11-1197-cv, p.12.
25
R.I. Butt, 'Appropriation Art and Fair Use¨ (2010) 5 Ohio St. J. on Disp. Resol. 1055.
26
J.S.G. Boggs, 'Who owns this?¨ (1993) 68 Chi.-Kent L. Rev. 889.
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