Buskirk 1992

Commodification as Censor: Copyrights and Fair Use
Author(s): Martha Buskirk

Source: October, Vol. 60 (Spring, 1992), pp. 82-109
Published by: The MIT Press
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Commodificationas Censor:
Copyrightsand Fair Use*
MARTHA BUSKIRK
"Five- and six-year-oldsat three Florida day-care centers,"an article on

Disney's aggressive pursuit of copyrightinfringerstells us, "appear on the
national nightlynews to say how sad theywillbe if theycan't keep picturesof
Mickey,Minnie, Donald, and Goofy on the walls of their playgrounds. But a
Disney lawyerwho directsanti-piracyeffortsout of New York saysthata nursery
school is no less a profit-makingenterprisejust because little children are
involved."'
Animated characters are everywherein children's entertainment,toys,
books, and productsof all kinds.Whyis it thatthe day-carecenterswere subject
to legal action when theyundertook theirown versionsof these images? Why
were they enjoined from reusing images that Disney has poured countless
resources into promoting,images with which Disney would clearly like every
consumer to identify?
In attemptingto answer these questions, one has to begin with the legal
definitionof the Disney animated characters,which classifiesthem as "intellec-
tual property."Copyrightedimages are only one example of this incorporeal
but highlyvaluable formof commodity,whichis protectedin the United States
by a networkof copyright,patent,and trademarklegislation.The Disney car-
* This article has benefitedfromdetailed critiquesprovided by Rosalind Krauss and by Leon

Friedman, attorneyand law professor,Hofstra University.My understandingof the nuances of
copyrightlaw was greatlystrengthenedas a resultof timespent discussingthe issues withthe latter
and withJohn B. Koegel, attorneyand chairmanof the New York CityBar AssociationCommittee
on Art Law.
1. Gail Diane Cox, "Don't Mess Withthe Mouse," TheNationalLawJournal,July31, 1989, pp. 1,
26. It was the placement of the murals that made Disney's case particularlystrong,for,according
to the same article, "attorneysare on solid ground when they say images on exterior walls are
misleading." Nonetheless,as Cox makes clear, Disney did not relishthe publicitygenerated by the
case: "The Florida day-care dispute has involvedextensivedamage control,and Disney is offering
free cartoon cutouts to go on interior walls." And Disney would clearly like to avoid further
discussion of the case; when approached by phone in November 1991, a representativeof Disney's
Corporate Informationdivisionrefused to comment,statingthatthe matterwas a "closed issue."

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Front),"Coevolution Quarterly,Spring1979.

84 OCTOBER
toon characters,whichare protectedmainlyby the copyrightcode, are related

to other forms of intellectualpropertyin that they are not, in themselves,
"inherently"valuable: theyare not tremendouslydifficultto draw or otherwise
render,nor are theygenerallyexecuted withinherentlyprecious (or ofteneven
tangible) materialswhen theyare conveyed to the public. Like so many other
facetsof late-twentieth-century production,thatwhichis mostvaluable in them
is weightless,lackingin substance.They are preciousbecause of the associations
theycarry--associationsthat can be broadlycategorizedwithreferenceto an-
other precious intangible,the corporate asset known as consumer goodwill.
These intangibleshave assumed theircurrentshape as the resultof a tremen-
dous investmenton the part of Walt Disney Company in marketingtheirchar-
actersand in controllingthecontextsin whichtheircharactersare disseminated.
And like it or not, protectedimages of all kindsnow pervade the fabricof late-
twentieth-century society.
Copyrightlaw (and, by extension, the legal conception of authorship)
invitesexaminationbecause of how it both responds to and makes possible the
trafficin images thathas come to dominatelate-twentieth-century society.It has
become difficultto avoid concern for the legal conceptionof authorship,for
everyonewho writes,draws, paints,or photographsin a way that responds to
or incorporateslanguage or imageryfromour media-basedenvironmentruns
a riskof becomingcaught in the netof legal limitationssurroundingcopyrights.
Though controlover copyingand disseminationis necessaryin order to provide
economic incentivesfor intellectualwork,there are also far less desirable mo-
tivationsand effectsunderlyingthisnetworkof limitationsand control.In the
field of the visual arts, as a range of theoryand practicehas now developed
that is focused around the issue of the copy, these practices have, in turn,
sometimestransgressedthe limitson the use of legallyprotectedimagery.
The HistoryofCopyright
The initial establishmentand the subsequent developmentof copyright
principlesshould be understood as a series of responses to the potential for
disruptioninherentin various new formsof technology.The printingpress was
only the firstin a long series of inventionsto whichdevelopmentsin copyright
law have had to respond.2 Legal limitshave become increasinglyimportant,
because each new technologicaladvance in what we now categorizebroadlyas
the media has the potentialto undermineprevious traditionsof dissemination
and older sources of revenue by eliminating,through technology,earlier in-
2. More recentexamples include sound recordings,whichhave inspiredveryspecificlegislation

concerningjukebox play and compulsorylicensing;the videocassetterecorder,whichled to a key
of Americav. UniversalCityStudios,Inc., that established fair use for
court case, Sony Corporation
home taping; and increasinglyspecificcopyrightlegislationconcerningcomputersoftware.

as Censor
Commodification 85
herent limitsin methods of reproduction.Differenttypesof boundaries have

thereforebeen developed, and, like the conventionof the limited edition for
fineart printsand casts,manyof these restrictions are self-imposedor imposed
at the behest of producers in the particulararea who wish to ensure the value
of theirintellectualproperty.
It was the spread of the printingpress that inspired the development of
copyrightprinciples in England, and those principles served in turn as the
model for United States copyrightlegislation.In England, the concept of the
copyrightoriginated in the practices of the Stationers' Company, which was
granted a royal charterin 1557.3 The grantingof the charterto the Stationers'
Company in the middle of the sixteenthcenturywas, however,itselfonly one
stage in a series of responses to the introductionof printingpresses to England
in the late fifteenthcentury.4The introductionof printingbrought with it a
great increase in the potentialforthe disseminationof ideas, and earlyattempts
to regulate printingin England were motivatedby the government'sdesire to
control content-particularly in response to the threatposed by the spread of
Lutheran books. Startingin 1528, therewas what CyprianBlagden describes as
a "stream of royal proclamationsagainst seditious and hereticalbooks."5 As of
1538, governmentcontrol was given a specificmechanism under a law that
required books to be approved before publicationby the PrivyCouncil.6
These attemptsto control the disseminationof books were only partially
successful;and in thiscontext,the chartergranted to the Stationers'Company
in 1557 can be understood as an early attemptby governmentto harness the
interestsof private enterprisein order to achieve a level of control that the
crown'sown enforcementmechanismswere not achieving.Once the Stationers'
Company was granted a monopoly over most types of printing,its members
had a commercial incentiveto control printingpractices.One element of this
form of self-enforcementwas the system of record-keeping the Stationers'
Company developed. Begun initiallyas a recordof licensed books-those books
approved by the royal censors-a printer'sentryof a book onto the register
veryquicklybegan also to denote the printer'sexclusive rightover the book in
question. This right was enforced via a systemof fines leveled against those
who infringedon a printer'sexclusive rightof "copy," and in this systemlies
the inceptionof what is now known as copyright.
In 1695, however,the Britishparliamentallowed the PrintingAct to lapse,
therebyfailingto renew the exclusiverightsover most typesof publicationthat
3. John Feather,"Authors,Publishersand Politicians:The Historyof Copyrightand the Book

Trade," European IntellectualProperty Review 11 (December 1989), p. 377; Cyprian Blagden, The
Stationers'
Company:A History, 1403-1959 (Stanford: StanfordUniversityPress, 1977), pp. 219-20.
4. According to Blagden, Caxton published the firstbook printedin England in 1477. Blagden,
The Stationers'
Company, p. 23.
5. Ibid., pp. 29-30.
6. Ibid., pp. 30-31; Feather,"Authors,Publishersand Politicians," p. 377.

86 OCTOBER
the Stationers'Company had previouslyenjoyed.' Withoutthe grantof a royal

monopolyover printing,the systemof registration maintainedby the Stationers'
Company could not preventindependentpresses from infringingon the copy-
rights conferred by the company on its own members. In 1709 a bill was
introduced in Parliamentin response to a series of complaintsabout the eco-
nomic hardshipscreated by printingpiracy.This act, also knownas the Statute
of Anne, was the firstcopyrightlegislation,and it became law in April of 1710.
The act was entitled"An Act for the Encouragementof Learning, by Vesting
the Copies of Printed Books in the Authors or Purchasers of Such Copies,
During the Times Therein Mentioned,"and it establisheda fourteen-yearpe-
riod of protection,whichcould be renewed for a second fourteenyears,along
witha twenty-one-year period of protectionforbooks thatwere alreadyin print
in 1710.
Even though its protectionfor copy owners was in many ways similarto
that establishedby the Stationers'Company under the previous PrintingAct,
the 1710 copyrightact is significantin several respects.First,by replacingthe
lapsed royal licensingacts withthe legal concept of copyright,Parliamentcre-
ated a degree of separationbetweencontrolover contentand controlbased on
economic interests.Printerscould stillbe prosecutedfor printingsedition,but
they were not required to obtain a royal license prior to publication. Also
significantis the act's nascent recognitionof authorship.Before 1710, control
over publishingin England was defined solely in relationto the printers;the
preamble to the Statuteof Anne, however,refersto the rightsof both authors
and their assignees-booksellers, printers,or other persons who have pur-
chased or acquired the rightsover copies-and it is presented as an act "for
the Encouragementof learned Men to compose and writeuseful Books."
In this respect,one can thinkabout the Statuteof Anne in relationto the
development of what Michel Foucault has termed the "author-function."For
the use of the author'sname as a means of classification was connected,accord-
ing to Foucault, to attempts to control discourse: "Speeches and books were
assigned real authors, other than mythical or important religiousfigures,only
when the author became subject to punishmentand to the extent that his
discourse was considered transgressive."8 Furthermore,Foucault connects the
transgressive in literature to "the moment when a systemof ownership and
strictcopyrightrules were established(toward the end of the eighteenthand
beginningof the nineteenthcentury)."9
7. John Feather,A HistoryofBritishPublishing(London: Routledge, 1988), p. 62.

8. Michel Foucault, "What Is an Author?"in Language,Counter-Memory, Practice,trans.Donald
F. Bouchard and SherrySimon (Ithaca: Cornell UniversityPress, 1977), p. 124.
9. Ibid., pp. 124-25. For a discussionof the historyof French copyrightlaw thatrelates it to
the concept of the author-function, see Molly Nesbit,"What Was an Author?" Yale FrenchStudies
73 (1987), pp. 229-57.

as Censor
Commodification 87
One can see a similartrajectoryin the English movementfrom licensing

acts designed primarilywiththe goal of prepublicationcensorshipto copyright
legislationfocused around the idea of books as property.Recognition for au-
thors,however,developed onlygradually.Despite itsapparent acknowledgment
of authors, the Statuteof Anne was, according to John Feather,"a booksellers'
act not an authors' act."' In the immediate aftermathof the passage of the
1710 act, the practicesof printingremained substantiallythe same: "'Literary
property'was what a publisher obtained from an author: it was a publisher's
rightnot an author's right.""
But just what kind of propertywas "literaryproperty"?If other formsof
propertywere perpetual, why should copyrightbe subject to a legally defined
time limit?These questions were being asked with an increasing sense of ur-
gency by 1731, which is when the twenty-one-year termof protectiongranted
by the Statute of Anne to books already published expired, and theyremained
significant as the twenty-eight-yearcopyrightsalso startedto expire in 1738.12
Because of the threat this terminationin protectionposed to their long-held
economic interests,English publisherstried,withoutsuccess, to get Parliament
to pass an act thatwould extend the duration of theircopyrights.The London
printerswere particularlyeager to strengthencopyrightprotectionbecause of
increased competition from outside sources. During the eighteenthcentury,
Ireland and Scotland had also developed printingindustries-industries that
served provincial marketsand specialized in reprintingbooks originallypub-
lished in London. The books they reprintedafter their copyrightsunder the
Statute of Anne had expired were treated as piracies by the London printers,
so legal recognitionof the concept of perpetual copyrightwould have presented
a far more serious threatto those industriesby givingsupport to the practices
of the London printers.Attemptsby English publishersto bring action against
such reprintsin Scottishcourts were, however,unsuccessful,in part because
the Scottish legal systemwas based on Roman law, which did not recognize
intangible property.The London printersnonetheless persisted in their at-
temptsto retain perpetual monopolies over valuable literaryproperties.Other
actions were pursued in the English courts,and in 1766, the King's Bench, in
Millar v. Taylor,held that copyrights,like other formsof property,had a per-
petual existence. This victoryfor copy holders proved, however,to be tempo-
rary,for in 1774, in Becketv. Donaldson,the House of Lords found definitively
10. Although the preamble to the act refers to authors, Feather describes how "a series of
referencesto authors' rightsin the firstdraftof the billwas removed in committee,almost certainly
under pressure fromthe trade." Feather,A HistoryofBritishPublishing,pp. 75-76.
11. Feather,"Authors,Publishersand Politicians,"p. 379.
12. Among the valuable workswhose copyrightexpired in the 1730s were Pilgrim'sProgress,The
Spectator,The Tatler,and Burnet's Historyof His Own Times.Feather,A Historyof BritishPublishing,
p. 77.

88 OCTOBER
against the concept of perpetual copyright,holding that these rightscould be

fixedby statute.'13
The role of the author also continuedto change in the wake of the Statute
of Anne and the subsequent litigation.While the shorteningof copyrightpro-
tection might,from a twentieth-century perspective,seem like a blow to the
interestsof authors,the effectduringthe eighteenthcenturywas verydifferent.
Unlike late-twentieth-century authors, who are often in a position to retain
controlover and thereforeto benefitfromtheircopyrightinterests,only a few
eighteenth-century authors retained controlover the copyrightin theirwork.
Perpetual copyrightwas thereforemainlyin the interestof publishers,whereas
the limiton copyrighttermsproved to be somewhatof a boon forauthors. For
once publishersbecame ensured of losingcontrolover valuable copyrightsafter
twenty-eight years, they were forced to seek out new works to print and to
publicize those workswhen theyappeared.14
Over the course of the nineteenthcentury,authors continued to assume
an increasinglyimportantposition under English copyrightlaw. The British
CopyrightAct of 1814 extended the termof copyrightto twenty-eight yearsor
the author's lifetime(whicheverwas longer),establishingan importantconnec-
tion, even if an author chose to sell his or her copyright,between the author
and the copyright.In 1842 this protectionwas furtherstrengthenedwhen it
was extended to forty-two years or the lifetimeof the author plus seven years,
whicheverwas longer.'15
In the United States, the establishmentof copyrightprotectionalso had

its inceptionin economic interests.In 1783, the Connecticutlegislaturepassed
a copyrightlaw at the urgingof Noah Webster,who wanted to preventappro-
priationof his spelling book, and thisprecedentwas followedby twelveof the
thirteenoriginalcolonies.16 In response to thispatchworkof differentlaws,the
delegates to the Philadelphia conventionestablishedthe basis for federalcopy-
rightlegislationin Article1 of the Constitution,whichheld that"Congressshall
have Power ... To promotethe Progressof Science and usefulArts,bysecuring
for limitedTimes to Authorsand Inventorsthe exclusiveRightto theirrespec-
13. These cases, however,provided the basis for what is known as common-lawcopyright:in
contrastto the statutorylimiton copyrightfor published works,unpublished workscould receive
perpetual copyrightprotectionunder common law as long as they remained unpublished. See
Feather, "Authors, Publishers and Politicians."But see also Howard B. Abrams, "The Historic
Foundation of American CopyrightLaw: Exploding the Mythof Common Law Copyright,"Wayne
Law Review29 (Spring 1983), pp. 1120ff.
14. Feather,A HistoryofBritishPublishing,pp. 116-25.
15. Ibid., pp. 169-71.
16. John Tebbel, A HistoryofBookPublishingin theUnitedStates,Vol.I (New York: R. R. Bowker,
1972), p. 138.

as Censor
Commodification 89
tiveWritingsand Discoveries."This power was exercised in 1790 when the first

Congress enacted a copyrightstatutemodeled veryclosely afterthe Statuteof
Anne.17
With this act, the United States provided itselfwith domestic copyright
legislationbefore most European countries.This firstcopyrightlaw was, how-
ever, very self-servingwith respect to American economic interests,in that it
provided protectiononly for American books published by American publish-
ers. In the area of internationalcopyrightlaw, the United States was much
slower than many of the European countries.Since the United States did not
enact an internationalcopyrightlaw until 1891, American publisherswere free
for an entirecenturyto pirate Britishand other foreignbooks at will.And it is
certainlyno accident thatit was onlywhen the balance of literarytrade between
the United States and England had begun to shiftin favorof greaterAmerican
production that Congress passed internationalcopyrightlegislation.'8
Congress also enacted major copyrightlegislationin 1909, but it was only
with the copyrightrevisionsof 1976 that the copyrightterm was changed to
one based not on publicationbut on the lifeof the author: afterthe legislation
took effectin January 1978, the copyrightterm became the life of the author
plus fiftyyears.'9Since the 1976 revisions,therefore,the date included withthe
copyrightnotice cannot be relied upon to give an indication of whether the
workis protected;instead,someone interestedin findingout if a workis under
copyrightmust investigatethe status of the author that produced it. This
differentrelationshipto the authorwas much slowerin comingthan in England,
where copyrightprotectionwas linked to the lifeof the author as earlyas 1814.
The impetus for thisbelated change came froma desire to bring United States
copyrightlaws into greater harmonywiththe standards of the Berne Conven-
tion in anticipationof eventual United States participation.And this goal, too,
was motivated by economic pressures: although the Berne Convention-an
internationalcopyrightagreement-was firstestablished among a number of
European countries in 1886, the United States resisted participatingin the
agreementuntil 1988, at whichpointCongress responded to concernsby Amer-
ican companies that their economic interestsin recording, film, and video
17. The 1790 legislationestablishedcopyrighttermsof fourteenyears,witha renewal termalso

of fourteenyears.As suggestedby the title,"An Act forthe encouragementof learning,by securing
copies of maps, charts,and books, to the authors and proprietorsof such copies, during the times
thereinmentioned,"the purpose of the legislationhad more to do withprotectingthe discoveries
of inventorsthan the writingsof authors. In 1831 the initialterm was extended to twenty-eight
years,witha renewal period of fourteen.See Tebbel, HistoryofBookPublishing,Vol.I, p. 141.
18. For a general survey of developments in eighteenth-and nineteenth-century American
copyrightlaws, see Tebbel, HistoryofBookPublishing,Vol.I, pp. 141 and 558-61, and Vol.II (1975),
pp. 634-44.
19. The exception to this is works made for hire, for which the copyrightlasts either seventy-
fiveyears frompublicationor one hundred years fromcreation.

90 OCTOBER
exports were not being sufficiently

well protectedby the alternateagreement,
the InternationalCopyrightConvention.20
Fair Use (and theCopyrighting

ofHistory)
The legal foundationfor Americancopyrightlaw lies in the Constitution,
which declares the loftyaim of wanting"to promote the progress of science
and useful arts." The use of copyrightprotectionas the means by which to
promote this progress also privatizes,to a degree, the means by which this
public good willbe effected.Ratherthan providinga directgovernmentsubsidy
for creative work, legal protectionfor intellectualpropertyrights facilitates
activitiesthat will ultimatelybenefitthe public by allowing authors to profit
from their creationswithinthe privatesector marketplace.Yet it is also clear
that a too-rigidconception of copyrightsas propertyrightswill tend to stifle
ratherthan promote the creationof what the law definesas "intellectualprop-
erty."For thisreason, the Americancourtsdeveloped the concept of fairuse.
Fair use is an exception thatallows for the use, in certaincircumstances,
of materialthat is protectedby copyright.This exception is necessarybecause
an absolute grantof propertyrightsin intellectualpropertywould circumscribe
many typesof creativework,given the degree to whichauthors and inventors
have always incorporatedapproaches or materialsfrom their predecessorsin
their new works. There is, however,a delicate balance in fair use between
economic protectionprovided to the owner of intellectualpropertyand the
need to quote or otherwisebuild upon intellectualpropertyin order to engage
in furtherwork.
Until the 1976 copyrightlaw revisions,fair use was developed under
common law as a 'judicially created exception to the rightsof the copyright
owner."21In other words, it was definedvia court cases and judgments rather
than in the copyrightstatutes.An earlydefinitionof fairuse can be found in a
case decided in 1841. In Folsomv. Marsh,JusticeStoryargued thatan assessment
of fair use should take into account "the nature and objects of the selections
made, the quantityand value of the materialsused, and the degree in which
20. The Berne Conventionis also significantforitsrecognitionof moral rights-broadly speak-

ing, the right of an author to claim authorship in a work and to object to its distortionor
mutilation-in section6bis. In the United States,however,the Berne ConventionImplementation
Act, which became law in 1989, contained language specificallycanceling out the moral rights
section. Although the legislativehistoryof the Berne ConventionImplementationAct argues that
Visual
equivalent protectionalready existed in American law, it was only afterthe passage of the
ArtistsRightsAct, whichbecame law in 1991, thata limitedformof moral rightsprotectionfound
explicitrecognitionin the contextof the copyrightcode-a recognitionthatcame almost two full
centuriesafterthe firstrecognitionof moral rightsin France under the law of 1793.
21. T. Barton Carter et al., The FirstAmendment and theFourthEstate: The Law of Mass Media
(Westbury,N.Y.: The Foundation Press, 1991), p. 291.

as Censor
Commodification 91
the use may prejudice the sale, or diminishthe profits,or supersede the objects,
of the originalwork."22This definitionwas clearlyinfluentialwhen, in the 1976
revisions,fairuse was givena statutorydefinitionin section 107 of the copyright
code:
Notwithstandingthe provisionsof section 106, the fairuse of a
copyrightedwork, including such use by reproductionin copies of
phonorecords or by any other means specifiedby that section, for
purposes such as criticism,comment,news reporting,teaching (in-
cluding multiplecopies for classroom use), scholarship,or research,
is not an infringementof copyright.In determiningwhetherthe use
made of a work in any particularcase is a fair use the factorsto be
considered shall include-(1) the purpose and characterof the use,
including whethersuch use is of a commercialnature or is for non-
profiteducational purposes; (2) the nature of the copyrightedwork;
(3) the amount and substantiality of the portion used in relation to
the copyrightedwork as a whole; and (4) the effectof the use upon
the potentialmarketfor or value of the copyrightedwork.
This statutorydefinitionof fair use clearlyprovides only a verygeneral set of

guidelines. Yet because the specificconsiderationsin each fair use case are so
different,it would be virtuallyimpossiblefroma practicalstandpointto antic-
ipate specifically,withinthe copyrightcode itself,the many sets of issues and
circumstancesraised by individual copyrightinfringementcases. It is therefore
up to the judge presiding over a particular case to weigh and give relative
priorityto these four fair use factors.Withinthe case-law arena, several well-
publicized decisions in the last few years have establishedcertainprioritieswith
respect to fair use, particularlyin relationto the use of unpublished works.
In Harper& Row Publishers, Inc. v. NationEnterprises,
Harper & Row, as the
publisher of former president Gerald Ford's autobiography,sued after the
Nationprinteda 2,250-wordarticlethatcontained both paraphrases and quotes
drawn from the unpublished manuscriptof A Time to Heal. Because of the
Nation scoop, Time magazine canceled its option with Harper & Row to print
prepublication excerpts and did not pay the second installmentof Harper &
Row's fee. AlthoughtheNationjustifieditsarticleas news reporting,and though
the piece only included approximately300 words froma 200,000-word manu-
script,the Supreme Court ultimatelyfound against the Nationbecause of the
unpublished status of the manuscript,because it found that the Nation had
taken the heart of the book, because the Nationstood to profitfromits scoop,
because the manuscriptobtained by the Nation had been purloined, and, in
22. Quoted in Pierre N. Leval, "Toward a Fair Use Standard,"HarvardLaw Review103 (March
1990), p. 1105.

92 OCTOBER
particular,because of the fourthfactor,the effecton the market,whichin this

case was easy to document. In fact,JusticeO'Connor's Supreme Court opinion
refersto this fourthfactoras "undoubtedlythe single most importantelement
of fairuse."
In two other key cases, Second Circuit decisions have had much more
disturbingimplicationsfor the writingof historicalworks. Both Salingerv.
RandomHouse, Inc. and New Era Publications v. HenryHolt & Co.
International
concerned the use of quotes fromunpublishedlettersor diaries in the context
of a biography-in the first,Ian Hamilton'sJ. D. Salinger:A Writing Life,and
in the second, Russell Miller's Bare-FacedMessiah: The True Storyof L. Ron
Hubbard.In both cases the Second Circuitruled thatthe expressivecontentof
previouslyunpublishedmaterialcould notbe quoted.23Though a recentSecond
Circuitdecision concerninga biographyof RichardWrightby MargaretWalker
has slightlyrelaxed the stricturesagainst quoting unpublished sources, these
decisions concerningfair use remain a serious problem for those who wish to
make use of unpublished primarysource materialin the contextof theirhis-
toricalresearch.24
Part of the reason for confusion around issues of fair use is that the
circumstancesof the cases already triedhave varied radically,leading to differ-
ent emphases on the four fairuse factors.But the questionsthatsurround fair
use also point up some of the underlyingcontradictionsin the goals and mo-
tivationfor copyrightlaws. Copyright,as it is definedboth in the Constitution
and by subsequent Supreme Court decisions,is not, accordingto United States
DistrictCourt Judge Pierre Leval, "an inevitable,divine, or natural rightthat
confers on authors the absolute ownership of their creations. It is designed
ratherto stimulateactivityand progressin the arts for the intellectualenrich-
ment of the public." Seen in this light, Leval argues, "Fair use should be
perceived not as a disorderlybasketof exceptionsto the rules of copyright,nor
as a departure fromthe principlesgoverningthatbody of law, but ratheras a
rational, integral part of copyright,whose observance is necessaryto achieve
the objectivesof thatlaw."25
The problem also extends beyond a question of inconsistenciesin the
decisions that have been reached, for there are many typesof cases that have
not been triedat all. Withrespectto the visual arts,forexample, the thirdfair
use factor,"the amount and substantiality of the portionused," mightseem to
23. See chapter 6, "Copyrightand Trademark," in The FirstAmendment and theFourthEstate,

especiallypp. 292-313, for summariesof these cases and for a general discussionof copyrightlaw
as it applies to publishing.
24. Pierre Leval, the DistrictCourt Judge who gave initialconsiderationto both Salingerand
New Era, argues that copyrightlaw should not be used to protectprivacyrightsin unpublished
writings;these should instead be protected by privacystatutes.See Leval, "Toward a Fair Use
Standard," p. 1119.
25. Ibid., p. 1107.

as Censor
Commodification 93
suggest that it would not be fair use to reproduce a photograph of an entire

work of art, even in the contextof a criticalor historicalarticle.AttorneyLeon
Friedman, a noted expert in First Amendment and copyrightlaw, argues,
however,that the use of visual worksin a criticalor scholarlycontextis just the
sort of use thatthe fairuse exceptionwould protect.As a general guideline,he
suggests, authors and publisherswould be covered by fair use for the repro-
duction of images that are seriouslydiscussed in the textof a work. It is when
a reproduction begins to act as a substitutefor a print of the image that the
fairuse exception would no longer apply.26Althoughthe precise point at which
a reproductionbegins to act as a substitutefor the original image would have
to be decided on a case-by-casebasis,fairuse should,accordingto thisargument,
provide importantprotectionfor those criticsand historianswhose arguments
are focused around the analysis of specific images or objects. This type of
scholarlyuse is a use clearlydesigned to benefitthe public, and it is therefore
consistentwith the broader goals of copyrightlaw." If this type of use were
excluded fromfairuse protection,the resultwould be the privilegingof prop-
ertyrightsto a degree thatcould fostercensorship.For ifthe copyrightholders
on images-whether works of art, advertising,or other formsof media-based
imagery-are allowed absolute control over the contextin which they are re-
produced, theywillalso be granteda formof veto power over criticismby being
able to withholdthe object of interpretation.
FromAuthor-Function
toBrand Loyalty
In "The Work of Art in the Age of Mechanical Reproduction," Walter
Benjamin speaks, among other things,of the way in whichfilmeffacesthe aura
of the stage actor by withdrawingthe actor'spresence fromhis or her audience
and by forcingthe audience to identifywiththe ever-changingposition of the
movie camera.28But in a displacementthat is similarin some ways to the way
in which exhibitionvalue has supplanted cult value for the work of art, "film
responds to the shrivelingof the aura withan artificialbuild-up of the 'person-
ality' outside the studio. The cult of the movie star,fosteredby the money of
the filmindustry,preservesnot the unique aura of the person but the 'spell of
the personality,'the phony spell of a commodity."'29
26. Leon Friedman, conversationwiththe author,December 28, 1991.

27. It is important,here, to distinguishbetween published and unpublished works. Although
the definitionof publication is a bit more complicated for works of visual art, the same level of
protectionaffordedto unpublished textswould presumablyalso apply to unpublished worksof art.
For a discussion of the nature of publicationfor worksof art, see FranklinFeldman et al., ArtLaw,
Vol.I (Boston: Little,Brown, and Co., 1986), pp. 115-18.
28. WalterBenjamin, "The Workof Artin the Age of Mechanical Reproduction,"in Illuminations,
trans. Harry Zohn (New York: Schocken Books, 1969), pp. 228-29.
29. Ibid..,p. 231.

94 OCTOBER
Now, in the late twentiethcentury,it has become commonplaceto describe

ours as a societyof the image-a societyin which the promotersof the visual
seem to be outspending champions of the verbal in the great communications
marketplace.More importantly, the images thatsurroundus are, in large part,
linked to the promotion of commodities,or they are themselvesa form of
commodity.The movie staris a kindof image in thathe or she does not become
a star simplybecause of acting skill; rather,the star is marketedas a package.
There is even a body of law thathas developed around the commodificationof
celebrity.A celebrity'slikeness has a value that can be diluted if it is used to
promote productswithoutauthorizationfromthe celebrity-who has the right
to profitfromthe use of his or her image. Hence we have regulationsagainst
the use of celebrityimpersonatorsto promote products-regulations that are
similar to those designed to prevent confusion among differentproducts or
commodities by barring the appropriation by one manufacturer of the
appearance-or packaging-used byanothermanufacturerto promotea prod-
uct line.
A keycomponentin the dominationof the image in late-twentieth-century
societycan be found in the developmentof advertising.For advertisingas we
know it is a relatively recent phenomenon: the modern approach to
advertising-advertisingas persuasionratherthanas announcement-is linked
to changes in production, transportation,and communicationthat began to
develop in the latterpart of the nineteenthcentury.Accordingto Daniel Pope,
"The larger shiftwhich precipitatedthe remarkable transitionin American
advertisingin the late nineteenthand early twentiethcenturieswas the devel-
opment of national marketsfor the branded, standardizedproducts of large-
scale manufacturers."30 Before the CivilWar,mostmanufacturedproductswere
purchased on a genericbasis, and usuallyin a statethatrequired furtherlabor
on the part of the purchaser (e.g., flourratherthan bread; fabricratherthan
finishedclothing). Soap was one of the firstproducts to be marketedto con-
sumers on the basis of characteristics attributedto a specificbrand name. This
type of brand differentiation,now so familiarto the late-twentieth-century
consumer,became necessarywiththe rise of large-scalemanufacturing,which
meant that high fixed costs needed to be offsetby consistentdemand for
particularproducts.31The creation of brand loyaltyamong consumers that is
centralto thissystemalso entailsa tremendousup-frontinvestmentin the form
of advertising.And as products began to be bought on the basis of brand
recognitionrather than as generic substances,corporationsbegan to depend
more and more on laws thatwould enable themto protectthe public perception
or image that they had developed around their products fromappropriation
30. Daniel Pope, TheMakingofModernAdvertising (New York: Basic Books, 1983), p. 5.

31. See chapters 1 and 2 in Pope, TheMakingofModernAdvertising.

as Censor
Commodification 95
by other producers. The body of law that enables producers to protect their
investmentin a brand name or other identifyingmark is known as trademark
law.
The groundworkfor trademarklaw, as for copyrightlaw, can be found
in earlierformsof production.Identifyingmarkswere used by guilds to identify
the origin of goods, and early English and American common law regarding
trademarks was mainly concerned with preventingone manufacturerfrom
"palming off" goods as those of another."2Like copyrightsand patents (which
provide for control over an invention),trademarksare broadly (and, some
would argue, inaccurately)categorized as a formof intellectualproperty.The
constitutionallogic forcopyrightand patentlaws-the promotionof innovation
through a system that allows an author or producer to exploit his or her
expression or invention-is present,though to a much lesser degree, in trade-
mark law, which "serves to both protectthe public from confusion as well as
protectthe trademarkowner fromlosing his market."3"Although the intentof
trademark law, as stated in the Lanham Act (the revision of trademark law
enacted in 1946), to prevent"the deceptive and misleadinguse of marksin ...
commerce" would clearlyprovide a public benefit,the emphasis is much more
on protectingthe commercialrightsof trademarkowners. In this respect,the
underpinningsof trademarklaw are differentfromthose governingcopyrights
and patents,forwhereas copyrightsand patentswere anticipatedand furnished
withan elevated purpose by the framersof the Constitution,trademarklaw has
had to develop under the rubric of the Constitution'sinterstatecommerce
clause.34
Trademarked names and images have assumed an increasinglyprominent
place in twentieth-century society,and their importance is directlyrelated to
their commercial value; the concept of the trademark and the reign of the
image are inseparable, and their link is the advertisement.And trademark
images are everywhere.If you watch a Sunday-afternoonfootball game on
television,for example, you see the scores updated on the Hertz Ten-Minute
Ticker, the game analyzed on the NFL Today Docker's Half-Time Report and
the Old Spice NFL Live Postgame Report, and highlightsconsistingof Alcoa
Fantastic Finishes, the Canon Camcorder Replay of the Game, and the Dr.
Pepper Game of the Month.35But ifyou choose to spend yourtimeat a museum
32. For a concise summaryof the origins of trademarklaw, see Arthur R. Miller and Michael
H. Davis, IntellectualProperty:Patents,Trademarks,and Copyright
(St. Paul, Minn.: West Publishing
Co., 1990), especially pp. 146-55.
33. Ibid., p. 151.
34. The firsttrademarklaws, enacted by Congress in 1870 and 1876, were declared unconsti-
tutional by the Supreme Court in 1879 on the grounds that these were state mattersover which
the Constitutiondid not grant Congress regulatorypower. Subsequent federal statutes
passed in
1881, 1905, and 1946, based on the Constitution'sinterstatecommerce clause, thereforeconcern
only the interstateuse of trademarks.Ibid., pp. 148-49.
35. These examples all come fromthe December 15, 1991, NBC and CBS telecasts.

96 OCTOBER
instead, you are equally unlikelyto be able to avoid the ever-presentlogos of

such corporate sponsors as AT&T and IBM. Everything,it seems, has a label.
Unless you reside in the elite world of personal tailoring,the initialson your
pocket will not be your own; instead,theywill be the initialsof the designer,
and theirfunctionis to signalyour statuswithinthe hierarchyof consumption:
off-brandor no-brand merchandiseis to be avoided at all costs. Even the term
that we use to describe ourselves has changed: whereas the word "consume"
once carried mainlynegativeconnotations,"consumer"is now dangerouslyclose
to overwhelming"individual"as the termmost frequentlyapplied to members
of twentieth-century society.36
As techniquesof mass productionand technicalreproductionhave become
increasinglypervasive,a whole networkof limitationsand regulationshas fol-
lowed apace. Now, late in the twentiethcentury,most forms of expression
presentedto the public are surroundedbya fabricof limitationsand regulations
concerning their use. Trademarks are not the only type of symbol used to
market products; images protectedby copyrightlaw have also become closely
identifiedwithand thereforevaluable to theircorporateowners.Because these
images-Disney cartoon characters,for example--represent such a heavy in-
vestmentof marketingcapital, and because those that achieve a high level of
familiarityare tremendouslyvaluable, thereis everyincentiveforcorporations
to tryto controlall formsof media response.Those imagesthatare mostfamiliar
willalso be those mostheavilymarketedand thereforemostcarefullyprotected.
And the younger a person is, the greater the degree to which he or she will
have been brought up in a context permeated with this type of imagery.So
even though we are all now being trained froman early age to recognize and
identifywith mass-marketimagery,the corporationsto whom those images
belong have every incentiveto tryto control the use to which we mightbe
temptedto put thoseimages,leading to a paradoxicalsituationin whichchildren
broughtup to recognize and even duplicate mass-marketimageryare likelyto
be preventedfromusing thatimageryas adults.
and Originality
Mass Production
Twentieth-century art has, of course, responded to its social contextwith

strategiesthat both react to and incorporatethe imageryand the methods of
reproduction characteristic of mass production.But the creationof copies and
the use of methods of reproductionwere hardlynew to twentieth-century art.
Copying played a key role in academic trainingand in the work of an artist
such as Ingres, where, as Rosalind Krauss has argued, his life-longrepetition
36. For a discussionof this shiftin meaning,see Stuartand Elizabeth Ewen, ChannelsofDesire:
Mass Imagesand theShapingofAmericanConsciousness (New York: McGraw-Hill,1982), p. 51.

as Censor
Commodification 97
and recyclingof themes,compositions,and singlefiguresputs into question the

verynotion of the original." And throughoutthe historyof art, one can trace
a series of shiftsthat occur in response to changes in both the style and the
underlyingtechnologiesof art. For example, J. M. Montias argues that Dutch
landscape artistsof the seventeenthcenturydeveloped stylesthat,among other
things,would allow for much greaterspeed of execution than their Mannerist
predecessors. Withoutthe inherentlimiton production intrinsicto the earlier
style,he argues, landscape and still-lifepaintingswere produced in sufficient
volume that prices for these genres began to tumble."3Once inherentlimitson
the volume of production are overcome, therefore,others must be established
if the work is to remain valuable. Michel Melot makes a related point in dis-
cussing artistictechniques. In the context of discussing limitson quantity,he
argues that artistshave oftentaken up the reproductivetechniques used in the
creation of limited-editionseries aftertheyhad been abandoned by industry-
lithographybeing one key example.39 In such cases, the association of the
techniques withmass productionwould be somewhatmitigatedby the factthat
artistsonly took up the techniquesaftertheirindustrialassociationshad begun
to fall away.
Anotherway of coming at the question of the relationshipbetween artistic
technique and inherentlimitson productionis to considerchanges in the nature
and creation of artisticforgeries.Mark Jones, in Fake? The Art of Deception,
describesthe nineteenthcenturyas the "greatage of faking."The riseof forgery
in the nineteenthcenturyhad to do withthe rise of a mania for collectingthat
was not at firstequaled by precision in authentication-either stylisticor sci-
entific.This age of forgerycame to an end in the 1930s,Jones argues, because,
for one thing, "a new taste for ornament-freedesign was eliminatingwhole
areas of craftsmanship."40 This change in taste,togetherwitha "parallel decline
of copyingas a disciplineforaspirantartistsand of a whole range of traditional
craftshas greatlyreduced the talentavailable for fakingantiques and worksof
art."41
One can see the effectof changes in styleand trainingreflectedin inherent
limitsin the realm of forgery:many typesof art produced in the nineteenth
centuryand before would demand a degree of traditionaltrainingand skillless
likelyto be found in the would-be forgerof the twentiethcentury.Forgeryhas
also been dealt a blow by the increasinglyprecise science of authentification
and
37. Rosalind Krauss, "Originality as Repetition: Introduction," October37 (Summer 1986),

pp. 35-40.
38. J. M. Montias, "On Art and Economic Reasoning,"Artin America76 (July 1988), pp. 23-27.
39. Michel Melot, "La notion d'originalit%et son importancedans la definitiondes objets d'art,"
in Sociologiede 1'art,ed. Raymonde Moulin (Paris: La Documentation
Frangaise, 1986), p. 193.
40. Mark Jones, ed., Fake? The ArtofDeception(Berkeley: Universityof California Press, 1990),
p. 162.
41. Ibid., p. 235.

98 OCTOBER
the simultaneousemphasis on academic trainingin the art of connoisseurship.

These parallel developmentsare both connected to a practicalconception of
authenticitythat has come to dominate the way in which art is valued. This
emphasis on the "authentic,"and thereforerare, has clearlydeveloped in re-
action to the unlimitedpotentialof certaintypesof mechanical reproduction;
yetit has also been applied backwardto the art of the past in waysnever before
contemplatedby the wealthy"users" of worksof art.
As the definitionof authenticityhas undergone an adjustmentover the
course of the lastcentury,so, too, has thenatureof the fakechanged in response
to the new conditionsof production.AccordingtoJones,"The twentieth century
is ... the great age not of the art fake,but of the commercialcounterfeit ...
the fakesmostcharacteristic of the late twentiethcenturyare thosethatpromise
the instantstatusconferredbya famousname or the corruptprofitto be gained
by substitutingan inferiorproductforthe real thing."42One can see a response
to thischange in environmentin a varietyof avant-gardestrategies,in particular
collage and the readymade, which respond to both the techniques of mass
production(the idea of the factory, forexample) and the materialsand products
disseminatedin theirwake.
These avant-gardestrategies,however,posed more of a challenge to es-
tablishedartisticand culturaltraditionsthan to legal limitationson production
and reproduction. In connection to Duchamp, for example, Molly Nesbit's
articleon the relationshipof his workto French school trainingin mechanical
drawingis instructive.43 While it was certainlya challenge to traditionalart for
Duchamp to incorporateimagerybased on those mechanicaldrawingsinto his
work, froma legal standpointthis strategywould have more in common with
Ingres's use of receivedartisticimagerythanwithcertainlate-twentieth-century
appropriations of popular-cultureimagery.In the case of both Ingres and
Duchamp, the artistswere borrowingfromwhatwas understoodto be a shared
vocabulary-a vocabularythat,depending on one's training,one was expected
to master.That the vocabularyDuchamp adapted was one taken fromindustry
rather than art violated traditionalnotions of art, but it did not infringeon
establishedcopyrightsor patents.In the readymadesas well, it is no apparent
violationof legal strictures-then or now-to displaya factory-produced item
such as a bicyclewheel or a urinal. Limitson the display of a readymade or a
collage would be more likelyto become an issue if the original materialswere
themselvessubject to moral rightsprotection-a form of protectiononly re-
centlyrecognized in United Stateslaw.44
Legal problems more often arise in the intersectionof technologiesof
42. Ibid., p. 236.

43. Molly Nesbit, "Ready-Made Originals: The Duchamp Model," October37 (Summer 1986),
pp. 53-75.
44. Section 106(5) of the United States copyrightcode grantsto copyrightowners the exclusive
right,"in the case of literary,musical,dramatic,and choreographicworks,pantomimes,and pic-

as Censor
Commodification 99
reproduction. As long as artistswork according to techniques that produce a

unique work of art or even, to a lesser degree, thatemployoutmoded methods
of reproduction (for example, bronze casting or certain of the printmaking
processes), then they are likelyto be able to avoid coming to blows with the
owner of the copyrightfor images depicted withintheir works.45But when
artistsuse techniques that are similarto the reproductivetechniquesemployed
in the mass media, then the owners of copyrightedimagery are much more
likelyto feel that their interestsare threatened by the artisticappropriation.
And to the extent that twentieth-century artistshave used these techniques to
raise questions about the distinctionbetween art and mass culture,the owners
of the mass-marketimagerywill be able to find a close resemblance between
their copyrightedpropertyand the work of art in which it has been incorpo-
rated.
Of course the context for contemporaryart has changed as well: both
Peter Buirgerand Andreas Huyssen have pointed out how the early-twentieth-
centuryavant-garde movements(what Buirgercalls the historicalavant-garde)
did not have the same relationshipto an institutionalcontextthat one findsin
the later neo-avant-gardestrategiesthat have been grouped under the term
postmodernism.46One of these institutionalcontextsis that of the art world-
torial, graphic, or sculpturalworks,including the individual images of a motion picture or other

audiovisual work, to display the copyrightedwork publicly."However, section 109(a) states that,
"Notwithstandingthe provisionsof section 106(5), the owner of a particularcopy lawfullymade
under this title,or any person authorized by such owner,is entitled,withoutthe authorityof the
copyrightowner,to display that copy publicly,eitherdirectlyor by the projectionof no more than
one image at a time, to viewerspresent at the place where the copy is located." This would seem
to suggest that the display of a single copyrightedimage-e.g., an image torn froma newspaper
and used in the contextof a collage-would generallynot violate the copyrightowner's exclusive
rights.However, if an artistincorporatesthe work of another artistinto his or her collage, then he
or she runs the risk of violatingthe moral rightsprotectionaffordedby the copyrightcode since
the passage of the Visual ArtistsRightsAct-but only if the work that is incorporatedis a unique
work or part of a numbered edition of two hundred or less, and only if it was created or sold after
June 1991, the effectivedate forthe Visual ArtistsRightsAct. (For a discussionof the Visual Artists
Rights Act, see Martha Buskirk,"Moral Rights: FirstStep or False Start?"Artin America79 [July
1991], pp. 37-45.)
45. This is, however,not true in all cases, as two more examples of Disney legal action demon-
strate. As Cox describes one incident, "A Soviet refugee, artist Mihail Chemiaskin, invites the
chairman of The Walt Disney Co. to a BeverlyHills galleryto see his homage to the United States:
a paintingof MickeyMouse handing a Campbell's soup can to a Russian. Disney lawyers,decrying
copyrightinfringement,apply enough pressure to get the paintingtaken offdisplay,and plans to
make a printof it dropped." And, in another instance,"Cityfathersof White River,Ontario, want
a statue to mark the 1914 birthplaceof theirmost famous son, a bear cub named 'Winnipeg' that
went to the London Zoo and is said to have inspired A. A. Milne to write the Winnie the Pooh
books. Disney's missiveto the cityattorneydeclares the statue would violate 'contractualcommit-
ments and present and futureplans for thischaracter'" (Cox, "Don't Mess withthe Mouse," pp. 1,
26).
46. See Peter Btirger,TheoryoftheAvant-Garde, trans. Michael Shaw (Minneapolis: Universityof
Minnesota Press, 1984) and Andreas Huyssen, Afterthe GreatDivide: Modernism,Mass Culture,
Postmodernism (Bloomington: Indiana UniversityPress, 1986).

100 OCTOBER
the complex of museums,galleries,and publicationsthathas greatlyexpanded

in the latterpart of the twentiethcentury.Anotherinstitutionalcontext,how-
ever,would have to be the now highlydeveloped seriesof statutesand decisions
that forma legal networkthatenvelops the use of imageryof many types.
Postmodernism
in theEyesoftheLaw
The issues surrounding copying have become increasinglycomplex as
artistshave used reproductivetechniquesto incorporatemass-mediaand related
images into theirwork.And here one can see a dividingline betweentwo artists
who responded early on to popular-cultureimagery:JasperJohns and Robert
Rauschenberg. While Johns used recognizable symbolsand trademarksin a
number of his worksfromthe 1950s, mostof these were too generalizedto fall
under copyrightprotection(the targets,forexample, or the maps).47 And even
the Savarin Coffee and the Ballantine Ale sculptureswere recognizablymade
by hand, therebyavoiding the potentialforconfusionthat formsthe basis for
action against trademarkinfringement. However,a printbased on collage tech-
niques involvingthe mechanicaltransferof copyrightedimageryraisesdifferent
issues. Rauschenberg,thoughoftenpaired withJohnsby historians,would pose
differentproblems for lawyersin his use of photomechanicaltechniques to
transfera varietyof already-reproducedimages into his works.And it was in
relation to one of these works that one finds an early example of the legal
problems related to appropriation.
Rauschenberg was sued by Morton Beebe for the use of Beebe's photo-
graph of a diver in his 1974 printPull afterBeebe became aware of Rauschen-
berg's use of his photograph when he saw the print reproduced in Time
magazine. Beebe's suit asked for $10,000 in damages, attorney'sfees, court
costs, and the profitsfromthe sale of Pull. As has been typical,however,the
case was settledout of court-for a much smalleramount and a promisethat,
when reproduced, the printwould be accompanied by the statementthat "the
image of the Diver in Pull is aftera photographby Morton Beebe."48
Andy Warhol has also been sued by photographers.In one case, the suit
concerned his use of a photographby PatriciaCaulfieldas the basis forhis 1964
seriesof paintingsentitledFlowers.In thisinstance,Caulfielddiscoveredthe use
when she saw a poster of Warhol's paintingin the window of a bookstoreon
Broadway.This case, too, was settledout of court,withWarholagreeing to give
47. Although specificmaps can be copyrighted,the generic map of the United Statescannot be
because, although one can copyrightthe manner in whicha set of factsis arranged or compiled,
one cannot copyrightthe factsthemselves.
48. The agreement,reached in September 1980, also provided Beebe with$3,000 and a copy of
Pull. See Gay Morris,"When ArtistsUse Photographs: Is it Fair Use, LegitimateTransformation
or Rip-Off?" Artnews 80 (January 1981), pp. 103-4.

as Censor
Commodification 101
Caulfield and her attorneyeithertwo copies of the Flowerspaintingsor $6,000,

and also to give Caulfield a royaltyfor futureuse of the image.49Since these
and other similarcases were settledout of court,however,theydid not establish
a legal precedent concerning whether the fair use exception would justify
strategiesof artisticappropriation.
Another lawsuit concerning appropriation also demonstratesthe degree
to whichcopyrightargumentsabout images can get caught up in a progression
of simulacra. In thisexample, collaborativegraphicartistsCockrilland Hughes
sued David Salle for his adaptation of elementsof theirdrawingof Lee Harvey
Oswald being shot by Jack Ruby-a drawing that had, in turn,been based on
the well-knownnews photographof the same subject.The basis forthe suitwas
the fact that the drawing differedfromthe photograph in a number of ways
(some of which Salle repeated), and it is possible to copyrightthose aspects of
a derivativework that are the author's unique expression. This case, too, was
settledout of court,precludingthe establishmentof a legal precedentconcern-
ing the degree to which a work of art based on appropriation can itself be
protected fromfurtherappropriation.50
One exception to the tendencyto settleout of court,however,is the case
broughtby Art Rogers againstJeffKoons concerningKoons's use of a greeting-
card photographtakenbyRogers as the model forhis StringofPuppiessculpture.
In preparation forhis 1988 "BanalityShow" at Sonnabend Gallery,Koons took
the photograph of a Californiacouple holding a group of eight puppies, which
he had purchased in a gift shop, to a studio in Italy to be fabricatedin an
edition of three painted wood sculptures. Rogers brought suit against Koons
for copyrightinfringementin 1989 aftera friendof Rogers drew his attention
to a reproduction of Koons's sculpture pictured on the front page of the
Calendar section of the Los AngelesTimes.The case was decided against Koons
in the New York DistrictCourt, which granted partial summaryjudgment to
Rogers-ordering Koons to turnover to Rogers the only unsold copy of String
ofPuppies (Koons's artist'sproof,which could also potentiallybe sold at a later
date), but reservingdeterminationof damages for a furtherdate. The case is
currentlyon appeal in the Court of Appeals forthe Second Circuit,whichheard
the argumentsin the appeal on October 3, 1991. (The decision by the judges
had not yet been released at the time this article went to press. Among the
49. Thus, in 1970, when Warhol made a series of 250 print portfoliosbased on the image,
Caulfield received eight and her attorneyreceived four of the portfolios.Ibid., p. 105.
50. See John Carlin, "Culture Vultures: ArtisticAppropriationand IntellectualPropertyLaw,"
Columbia--VLAJournalofLaw and theArts,vol. 13, no. 1 (1988), pp. 132-33, fora discussionof the
case. According to Carlin, "Salle and his dealer, Leo Castelli, settled out of court, each paying
Cockrilland Hughes $1,000, a small fractionof the painting'smarketvalue at the time. Salle likely
settledto avoid the expense and negative publicityof a public trial. Perhaps Cockrill and Hughes
settled for so littlebecause theirchances of winningoutrightwere dubious."

102 OCTOBER
many possibilities,the judges could either affirmor deny all or parts of the
lower court ruling,or theycould even send the case back to the lower courts
for rehearing.)
This case raises a numberof importantand troublingquestionsabout the
legal status of artisticappropriation,and it mayset an importantprecedentwith
respect to the appropriationof images in worksof art. Although the appeals
court decision is still pending, certain key issues are already apparent. One
troublingaspect of Judge Haight's 1990 DistrictCourt decision is the way in
whichhe draws the analogy he makesbetweenKoons's workand the precedents
he citesfromthe realm of mass production.He countersargumentsconcerning
the change of medium withan example of manufactureddolls thatwere based
on a copyrightedbook of cartoons. Similarly,Haight placed the sculptureon
the "commercial nature" side of the equation of the firstfactorin fair use,
regardless of the fact that the courts have found in favorof fair use even in
cases involvingbooks published by commercialpublishinghouses.5"The com-
mercialnaturefindingwas also made on thebasisof an analogybetweenKoons's
work and a commercialmotionpicturethatwas based on a copyrightedstory.
The fact that the lower court found no differencebetween a limited-
edition sculptureand a mass-producedfigurinehas disturbingimplicationsfor
various formsof postmodernart. The decision is particularlytroublinggiven
the way in which strategiesof appropriationhave often performeda critical
function(a functionthatsome even ascribeto Koons's enterprise).John Koegel,
Koons's lawyer,emphasizes this criticalfunctionin the appeals court brief:
"Koons is part of a traditionof artistswho incorporate mass-produced or
commonplace objects in theirwork so as to criticizethose objects as symbolsof
the deteriorationof modernculture."52 Koons himself,however,has contributed
to the argumentsmade against him both throughhis persona as an art entre-
51. In the case involvingthe Nation,the Supreme Court stated,"The crux of the profit/nonprofit
distinctionis not whetherthe sole motiveof the use is monetarygain but whetherthe user stands
to profitfromexploitationof the copyrightedmaterialwithoutpayingthe customaryprice" (Harper
& Row Publishers, [1985]). Michael Chagares also pointsout thatan earlier
Inc., v. NationEnterprises
decision in a case involvinga parody,Loew'sInc. v. ColumbiaBroadcasting System,has been widely
criticizedby both commentatorsand the courtsfor related reasons. This suit involveda made-for-
televisionmovie byJack Benny thatwas a parodyof the filmGaslight.The courtfound thatbecause
the defendantstood to make moneyfromthe parody,the purpose of the parodywas onlycommercial
use defense inapplicable
gain. According to Chagares, the decision "realisticallyrendered the fair
to parodies" (Michael A. Chagares, "Parodyor Piracy:The ProtectiveScope of the Fair Use Defense
to CopyrightInfringementActions Regarding Parodies," Columbia-VLA Journalof Law and the
Arts,vol. 12, no. 2 [1988], p. 237). Parody and appropriationare different,however,forin parody,
the parodist is only allowed to take enough to conjure up the original; in appropriation,on the
other hand, the criticismis more subtle and the amount taken tends to be greater.
52. Brief forthe Defendants-Appellants, JeffKoons and Sonnabend Gallery,Inc., United States
Court of Appeals for the Second Circuit(91-7396), p. 36.

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104 OCTOBER
preneur and self-promoterand through his very success: it is only because

reproductionsof his works were disseminatedthrough mass-media channels
that Rogers became aware of Koons's act of appropriation.
The case involvingStringofPuppiesalso highlightsanothersortof problem:
the collision of two types of authors. According to the legal definition,Art
Rogers is verymuch an author,even though he licensed his photographto be
marketed in ways that tend to veil the connectionto a specificoeuvre. Koons
used the photograph because, to him, it representedgeneric kitsch,and it is
certainlythe same qualities read straight-the cutenessand familialwarmthof
the image-that would have attractedless cynicalpurchasersof the card. In
focusing on the way in which strategiesof appropriation perform a subtle
criticism,Koons's appeals court brief seems to suggest the establishmentof a
hierarchyamong differenttypesof authors:
The DistrictCourt failed to appreciate thatfineart oftencomments
subtly.The dark implicationsof the DistrictCourt's holding is that
only the most crude and unsophisticatedcriticismwill be privileged
under the fairuse doctrine .... Unlike the typicalcopyrightinfringe-
ment case which involvesa creativeartistattemptingto preventthe
mass commercialexploitationof his originalwork,thiscase concerns
the extent to which a mass distributorof a rathermundane photo-
graphic note card can preventa highlyregarded artistfromcreating
a limitededition,original,provocativeand criticalworkof art.53
The problem with settingup a hierarchyamong differenttypesof authors is

thatthe copyrightlaws,whichare set up to allow authorsto exploittheirworks,
are very democratic in their definitionof who is an author.54Is it therefore
betweentwo typesof authors (i.e.,
reasonable to ask the courtsto differentiate
those who retain the category of author as defined by various segments of
twentieth-century theoryand criticismand thosewho do not)?Should fineartists
be exempt fromlimitationson copyingset up by laws designed to allow creators
to exploit intellectualproperty-laws that fine artistsare also able to use to
theiradvantage?
53. Ibid., pp. 3-4.

54. That copyrightprotectiondoes not depend on the artisticmeritof the workin question was
established in an often-citedcase involvingcircus posters. In his Supreme Court opinion, Oliver
Wendell Holmes discussed the danger of renderinglegaljudgmentson the basis of aestheticcriteria:
"It would be a dangerous undertakingfor persons trainedonly to the law to constitutethemselves
outside of the narrowestand mostobvious limits.
finaljudges of the worthof pictorialillustrations,
At the one extreme some worksof genius would be sure to miss appreciation.Their verynovelty
would make them repulsive until the public had learned the new language in which theirauthor
spoke.... At the other end, copyrightwould be denied to pictureswhichappealed to a public less
educated than thejudge. Yet if theycommand the interestof any public, theyhave a commercial
value-it would be bold to say thattheyhave not an aestheticand educationalvalue-and the taste
Co. [1903]).
of any public is not to be treatedwithcontempt"(Bleisteinv. DonaldsonLithographing

as Censor
Commodification 105
And this is not the only case to be broughtagainst Koons. A second one
seems, however, to raise a somewhat differentset of issues. In a case that is
currentlyon hold in the New York DistrictCourt waitingfor the decision on
StringofPuppiesfromthe Court of Appeals forthe Second Circuit,motionsfor
summaryjudgment have been filedby United Features Syndicateand by Koons
concerning Koons's sculpture WildBoy and Puppy.Here, however,rather than
using a specificphotographas a model, Koons adapted the copyrightedcartoon
character of Odie from the Garfield comics. Although it remains to be seen
how the court will respond to the second case, some commentatorshave at-
tempted to draw a distinctionbetween using a less-well-knownimage taken
from the world of popular culture and a cartoon character that has become
part of a shared cultural vocabulary.55The counter argument,however,is to
ask why the more successfulauthor should be penalized by having his or her
creation subject to appropriation simplybecause it has become successful or
well known.56
And furthermore,why,if Koons's goal in makingStringofPuppieswas the
creation of a work of generic kitsch,did he have to make what amounts to a
"word for word" quotation of this particular photograph; why could he not
have gone furtherin the combinationof elementstaken fromdifferentsources,
since an exact replicationof thisparticularphoto-an individual example of a
larger genre-would not be necessaryin order to convey the idea?57It might
seem easier to defend the necessityof quoting well-knownfiguresexactly in
order to convey one's meaning. On the other hand, though, even when the
original is less well known,it is alarmingto contemplatethe possibilityof living
in a world surrounded by images that are off-limits for any sort of artisticuse.
Koons is far from the only artistto respond to the images which pervade our
environment;and despite a well-publicizedlack of enthusiasmforJeffKoons's
work on the part of editors of thisjournal,58it would be hard to frame an
55. In his article on artisticappropriation,Carlin makes a case for the importanceof this type
of distinction,arguing that one should assess "the degree to which the image is part of a shared
cultural vocabulary,or generally identifiableas the work of the original creator or owner. This
clearly would allow virtuallyall popular imagery,like cartoon characters,to be appropriated in a
limitedartisticcontext"(Carlin, "Culture Vultures,"p. 139).
56. Leval makes this argument in the context of a discussion of the publication of stills from
Zapruder's filmof the Kennedy assassination.See Leval, "Toward a Fair Use Standard," pp. 1131-
32.
57. He did make a number of changes: the color of the figures(in contrastto the
photograph,
which was in black and white),the flowersin the hair of the figures,and the noses on the
puppies
(which were based on the nose of a cartoon character).These changes were, however,not sufficient
to convinceJudge Haight that the photograph and the sculpturewere not substantiallysimilar.
58. Yve-Alain Bois, quoted in the context of a September 19, 1991, New YorkTimesarticle,
characterized Koons's work as "totallytrivialand a pure product of the market . . . I thinkhe's a
kind of commercial artist."And Rosalind Krauss, quoted at the end of another major article on
Koons that appeared in the New YorkTimeson October 27, 1991, stated that "Koons . . . is not
exploitingthe media foravant-gardepurposes. He's in cahoots withthe media. He has no message.
It's self-advertisement, and I findthat repulsive."

106 OCTOBER
argument whereby one could justifyWarhol's use of found photographs in

workslikeFlowersor Red Race Riot(wherethe photographsare even reproduced
according to photographic-typeprocesses) while at the same time withholding
support for Koons's appropriation of the greeting-cardphotograph that he
used as the model for StringofPuppies.59
in theWorld
In theGalleries/Out
One of the argumentsmade in Koons's defense briefsis thathe is part of
a traditionthat involves the use of incorporated imagery-a traditionwell-
establishedby both Pop art and certainlater movements.But this "everybody
does it" argument has so far not carried the day in the legal arena. And just
whyis it thatan artistwould expect to be exemptfromthe copyrightlimitations
that govern other typesof image reproduction?Perhaps a partial answer can
be found in the structureof the art world itself.Lawyersand othersfromthe
worldof businessoftenmarvelat thedegree to whichtheartworldstillfunctions
on the basis of unwrittenunderstandingsand agreements.And in this respect
there is an echo of the structureof the Stationers'Company. Though the art
world does not depend for its existenceon a royal charteror other enabling
instrument,it does functionto a large degree on the basis of generallyunder-
stood but not legallycodifiedrules thatmustbe observed by those who wish to
play the game.
There are indirecttraces of both copyrightand trademarkprinciplesin
certainconventionsthat have developed withinthisnexus. These can be seen,
for example, in the power granted to the artistto define a varietyof objects
and phenomena as art and to authorize the creationof the works that are to
be displayed under his or her name. Althoughaspects of thispracticeoverlap
with specificlegal protectionfor copyrightsand trademarks,some elements
extend beyond the bounds of the purelylegal. One of these conventionscon-
cerns the way in which the name of the artistattachesto the work of art, and
to a particular style,at the time that the work enters into the art world's
institutionalnetwork.Withinthat system,the value of the individual work of
art is dependent on the name of the artistconnected withit; and though the
importance of the artist'sname is based on the qualityassociated with his or
her previous work,once the artist'sname becomes a label given to an oeuvre it
can acquire an increasinglyabstractvalue unto itself.Similarly,as traditional
59. It is clearlyalso importantto distinguishbetweenartisticappropriationand more traditional

forms of parody, for there the amount that can be taken is limited.As Chagares points out in
relationto Disneyv. AirPirates,Inc., "An importantfactorin its holdingwas thatbecause the public
was familiarwiththe originalcharacters,less than what was takenneededto be taken to conjure up
the original. In justifyingitsdecision,the court noted thatno parodisthad the rightto appropriate
the amount necessaryof the 'best parody,'but instead relied strictlyon the 'recall or conjure up'
test"(Chagares, "Parody or Piracy,"p. 241).

as Censor
Commodification 107
notionsof artisticskillare replaced by artisticstylesbased on a more conceptual

working method, the successful artist establishes his or her sole right to a
particular styleor method-a "trademark"style-and others who attemptto
use the same means are dismissedas mere imitators.
Withinthisnetwork,new rules are continuallyevolvingin the intersection
of the systemof connoisseurshipdeveloped in relation to old mastersand the
verydifferentissues inherentto more contemporaryworks.These include the
opening up of a single slot for each differenttype of practice (the implied
trademark),and a varietyof limitsdesigned to ensure rarityand, where appli-
cable, uniqueness (the limitededition, as well as various custom-basedrestric-
tions withrespect to the fabricationof worksand the re-creationof ephemeral
installations).These rules, whetherexplicitor implied, are a reflectionof the
degree to which the environmentsurroundingthe display and criticismof art
has become institutionalized.
It is also thisinstitutionalnetworkthatallows worksbased on appropriated
popular-culture imagery to be defined as art. In relation to works by Koons
and others that appropriate mass-marketimagery,it is importantto ask what
conditions were necessary,and how the conditionswere established,to enable
these worksto be understood as art. Though thisis not the same snidelyamused
question that one findsin the mass-mediaresponse to contemporaryart, there
is a relationship.If the answer is not self-evidentto the world at large, then it
is importantto look to the art world-the institutionalnetworkof galleries,
museums, performances,publications,symposiums-in order to locate the en-
abling framework.For it is by separating a particularset of images out from
the realm of unlimited mass production and approaching them according to
art-worldconventionsthat the institutionsof the art world define these works
as art-even as the worksthemselvesraise questions about such categories.
It is perhaps by counter-examplethatone can demonstratethe degree to
which the art world constitutesits own formof subculturevia thisinstitutional
frame. This situationis reflectedin the fact that,while a tremendouslylarge
number of the works produced during the last three or more decades have
employed strategiesof appropriation, only a very few have provoked legal
action. The vast majorityof workscirculatedwithinthe art world (exhibited,or
even pictured in the contextof art-worldbooks and periodicals) are not likely
to attractthis type of notice. Based on the descriptionsof the various legal
actions that have been brought,it appears that it is mainlywhen artistshave
become media figuresthemselves-when theyhave gained sufficientstatureor
notorietyto have their works reproduced in venues that cater to a broader
audience-that theymay run into problems.And thismust,in part,be because
only then do those who mighthave a legal interestin the appropriated images
even become aware of the artist'swork.
Other issues also come to the fore in relationto artistswho achieve suffi-
cient statureor notorietywithinthe art world nexus that theybegin to receive

108 OCTOBER
mass-mediaattention.There is somethingof a paradox in the process whereby

an artistcan become a celebrityon the basis of the use of copyrightedimages
and mass media-derived strategieswhile at the same timeclaimingexemption
fromthe legal limitsinherentin theiroriginalconditionsof production.War-
hol's work is largelyunderstood as a critiqueof the media environmentfrom
which he derived both his images and his strategies,and a number of critics
have triedto place Koons in thatsame tradition.But subtleor implied criticism
is something that advertisersand others in the mass media are capable of
overlooking.This tendencyis demonstratedby the number of advertisingen-
dorsements Warhol was asked to do,60and, if one extends the argument to
Koons, it is also clear in the number of column inches thathave been devoted
to Koons's media-grabbingantics.
Similarly,artistswho incorporatemass-mediaimagerymay be prevented
fromexploitingtheirown worksof art in the mass market.These artistsmay
verywell be preventedfromturningaround and licensingthatwork for mass
reproductionon T-shirts,tote bags, or the like, because the artistwould then
be competing with a potential market for products licensed by the original
trademarkor copyrightholder,and also because, it could be argued, the artist
would be profitingfromthe investmentof the owner in promotingthe original
image (which is known in the legal contextas a "free ride"). Thus there are
various limitson how crasslycommercialan artistcan become while still at-
temptingto claim a formof artisticlicense for his or her appropriations.
The postmodern use of appropriated imagery has been related to the
avant-gardestrategyof attemptingto break down the distinctionbetween art
and life. This collapsing of categories,however,is held in check by the neo-
avant-garde'ssituationwithinthe institutional networkof the art world. But the
boundary between art and life-if life in the late twentiethcenturyis under-
stood in connectionto the world of mass-producedimages-is also being ques-
tioned from another direction.Even as worksof art that use popular-culture
imageryraise questions about the nature of art by substitutingreproducibility
for uniqueness, appropriationfor originality, one can find the mirrorreversal
of thissituationin a differentworld of collecting:the currentnostalgiaforold
mass-marketimages and objects. At the same time that artistshave imported
techniquesof mass productionand reproductioninto theirworksin ways that
question traditionalnotionsof uniqueness and authenticity, anotherwhole body
of collectors has developed around mass-culturememorabilia,a field where
time and an original emphasis on expendabilityhave combined to produce
conditionsof raritynot inherentin the original mode of productionfor these
objects. The expanding mania for collectinganythingand everythingmust
60. For a discussion of Warhol's relationshipto advertising,see David James, "The Unsecret
Life: A Warhol Advertisement,"October56 (Spring 1991), pp. 21-41.

as Censor
Commodification 109
reflectthe importantrole played by mass-marketimages and products in shap-

ing people's lives and identities.And this formof collecting,to the extentthat
it mimicssome of the conventionsthathave developed around the collectingof
fineart,also carrieswithit the potentialto blur distinctionsbetweenpostmodern
art and the image world on whichit is based. The potentialforoverlap between
nostalgia for the materialsof yesteryear'smass productionand the appreciation
of works of art that play off of that body of artifactsis nowhere so well
demonstratedas in the auction of the Warhol collectionthat took place several
years ago.61
The fact that mass-produced objects and images can evoke this degree of
nostalgia and interestis indicativeof a broader change in the role theyplay in
late-twentieth-century society.In an early and often-citedcase, Supreme Court
Justice Oliver Wendell Holmes addressed the issue of artisticcopying,stating
that "Others are free to copy the original. They are not free to copy the
copy. ... The copy is the personal reaction of an individual upon nature."62
The world of the visual has, however,undergone a revolutionsince the turnof
the centurywhen Holmes made thisstatement.Even if we have not yetentered
fullyinto the world of virtualrealitydescribedin science fiction,we are certainly
living in a world of the already-encoded,a world in which images have sup-
planted nature as the primarypoint of reference and identificationfor our
increasinglyurban society.A crucial differencebetween the use of mass-media
images and "nature" as a referentfor artistsis that the already-encoded is also
likely to be the already-commodified.And as long as these images are also
valuable commodities,attemptsto use or criticizethem will continue to come
into conflictwithattemptsto controltheiruse.
61. This overlap is also apparent in the context of a recentNewsweekarticle that discusses the
way in which the major auction houses are compensatingfor the softmarketfor art withauctions
of "collectibles."The article subhead read: "As the art marketsinks,the big auction houses look
for profitsin offbeatareas like old golf balls and stuffedfish"(though in the body of the article
the author did indicate that this type of business stillaccounts for a relativelysmall percentage of
auction-house sales). Carol Hall, "AnythingGoes," Newsweek, December 16, 1991, pp. 72B-72D.
62. Bleisteinv. DonaldsonLithographing Co. (1903).


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Commodification as Censor: Copyrights and Fair Use

Author(s): Martha Buskirk

This content downloaded from 86.61.119.134 on Thu, 24 Apr 2014 03:09:06 AM

"Five- and six-year-oldsat three Florida day-care centers,"an article on

* This article has benefitedfromdetailed critiquesprovided by Rosalind Krauss and by Leon

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Comment on Walt Disney Productionsv. The Air Pirates.From

This content downloaded from 86.61.119.134 on Thu, 24 Apr 2014 03:09:06 AM

toon characters,whichare protectedmainlyby the copyrightcode, are related

2. More recentexamples include sound recordings,whichhave inspiredveryspecificlegislation

This content downloaded from 86.61.119.134 on Thu, 24 Apr 2014 03:09:06 AM

herent limitsin methods of reproduction.Differenttypesof boundaries have

3. John Feather,"Authors,Publishersand Politicians:The Historyof Copyrightand the Book

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the Stationers'Company had previouslyenjoyed.' Withoutthe grantof a royal

7. John Feather,A HistoryofBritishPublishing(London: Routledge, 1988), p. 62.

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One can see a similartrajectoryin the English movementfrom licensing

This content downloaded from 86.61.119.134 on Thu, 24 Apr 2014 03:09:06 AM

against the concept of perpetual copyright,holding that these rightscould be

In the United States, the establishmentof copyrightprotectionalso had

This content downloaded from 86.61.119.134 on Thu, 24 Apr 2014 03:09:06 AM

tiveWritingsand Discoveries."This power was exercised in 1790 when the first

17. The 1790 legislationestablishedcopyrighttermsof fourteenyears,witha renewal termalso

This content downloaded from 86.61.119.134 on Thu, 24 Apr 2014 03:09:06 AM

exports were not being sufficiently

Fair Use (and theCopyrighting

20. The Berne Conventionis also significantforitsrecognitionof moral rights-broadly speak-

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This statutorydefinitionof fair use clearlyprovides only a verygeneral set of

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particular,because of the fourthfactor,the effecton the market,whichin this

23. See chapter 6, "Copyrightand Trademark," in The FirstAmendment and theFourthEstate,

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suggest that it would not be fair use to reproduce a photograph of an entire

26. Leon Friedman, conversationwiththe author,December 28, 1991.

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Now, in the late twentiethcentury,it has become commonplaceto describe

30. Daniel Pope, TheMakingofModernAdvertising (New York: Basic Books, 1983), p. 5.

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This content downloaded from 86.61.119.134 on Thu, 24 Apr 2014 03:09:06 AM

instead, you are equally unlikelyto be able to avoid the ever-presentlogos of

Twentieth-century art has, of course, responded to its social contextwith

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and recyclingof themes,compositions,and singlefiguresputs into question the

37. Rosalind Krauss, "Originality as Repetition: Introduction," October37 (Summer 1986),

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the simultaneousemphasis on academic trainingin the art of connoisseurship.

42. Ibid., p. 236.

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reproduction. As long as artistswork according to techniques that produce a

torial, graphic, or sculpturalworks,including the individual images of a motion picture or other

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the complex of museums,galleries,and publicationsthathas greatlyexpanded

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Caulfield and her attorneyeithertwo copies of the Flowerspaintingsor $6,000,

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i' '::ii':i' i::

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preneur and self-promoterand through his very success: it is only because

The problem with settingup a hierarchyamong differenttypesof authors is

53. Ibid., pp. 3-4.