One of the most interesting issues in copyright law is whether copyright protection should be extended to appropriation art. In his article „Copyright, Borrowed Images, and Appropriation Art: An Economic Approach,” William Landes raises an important point that such decision should be made not solely based on legal factors, but on complex economic analysis as well. However, I believe that artistic and political aspects should also be considered.
So what is appropriation art? In simple terms, appropriation means intentional borrowing and modifying of preexisting art. In her series After Walker Evans, Sherrie Levine retook pictures from a photographer Walker Evans’s book Let Us Now Praise Famous Men. Levine did it only four decades after the creation of the original photographs.
Some, if not the majority of artists, feel appreciated when others are “inspired” by their works and transform them in some way. For that reason, creations of Christo or Duchamp have found its enthusiasts, and are regarded as original and independent works of art. In fact, appropriation is a trend in modern art. Landes’ argument related to the economic incentives can be analyzed in connection with the artistic factors. While discussing access cost of copyright protection, the author argues that too much copyright protection can decrease the number of new works created. I follow his logic.
Moreover, generally, I agree with the doctrine of derivative works, and with the point that copyright protection should be about copying, and not necessarily about independent duplication. Equipping the author with derivative works rights also limits the number of complex lawsuits against multiple plaintiffs. However, appropriation art cannot be mistaken with derivative works. It is a separate category that may need specifically designed requirements for copyright protection.
In my opinion, Landes is right that the presented economic approach allows unauthorized borrowing that in many ways have the potential to promote artistic innovation. Nonetheless, it’s hard for me to see appropriation art in Jeff Koons’ framed and slightly recolored poster of a basketball player Moses Malone.
On the other hand, I view appropriation art as a satire or a parody. In my opinion, Naked Gun 33 1/3 movie poster inspired by Annie Leibovitz’s picture of Demi Moore on a cover of Vanity Fair is worth copyrighting. I would also argue that appropriation art should be justified when used to comment on current political events. For instance, Nadia Plesner used a Louis Vuitton signature monogram bag in her “Darfunica” painting. Her artwork reflected on a humanitarian crisis in Sudan. I believe that implementing a copyrighted work in another independent creation as a symbol is reasonable.
The most challenging issue is to draw a line between what type of appropriation art infringes upon the rights of the original work, and what does not. Should appropriation art be subject to copyright protection in order to allow unrestrained development of the arts? I think that the legal rationale for appropriation art does not apply to either fair use or transformative use doctrines. It requires a separate test that would take into account economic, artistic and political aspects of this specific field that is constantly evolving and doesn’t fall within any existing legal framework.