Wednesday, 4 March 2009

Copyright - When is appropriation appropriate?

Borrowing or quoting from an existing work of art is nothing new as artists have been stealing ideas for centuries. In 1873 Manet used part of a Raphael composition as the basis for his work Le Déjeuner Sur L'Herbe, updating their clothing and adding the naked women. Nearly a century later, Picasso paraphrased Manet's work in the extensive series of paintings, drawings, sculptures and linocuts he executed between 1959 and 1961, 'Les Dejeuners'. The current show of Picasso’s paintings at the National Gallery, ‘Picasso: Challenging the Past’, demonstrates his use of appropriation by comparing his work with examples from the gallery’s collection. As Picasso confirmed: ‘Good artists borrow, great artists steal’, but when does borrowing become theft in contemporary visual practice?

The notion of appropriation emerged in post-modern critical discourse in the 1970s and has since become commonplace in contemporary culture, particularly in the music industry through the use of sampling. The term ‘appropriation art’ came into common use in the 1980s when artists addressed the act of appropriating as a theme in art. Influenced by his job at Time-Life the US artist Richard Prince started to use advertising as the subject matter for his paintings in the 1980s, and has since become known for his experimental use of appropriation in his practice.

Prince is currently being sued for copyright infringement by the French photographer Patrick Cariou who claims that Prince used images from his photographic survey of Rastafarian culture in a series of paintings without permission. Prince's dealer Larry Gagosian is also named as a defendant for exhibiting the works in the recent show titled ‘Canal Zone’ in which 20 out of the 22 works featured photographs from Cariou’s book.

Whether this latest lawsuit will have any impact on Prince’s creative output remains to be seen. He has been in trouble before, reaching an out of court settlement with photographer Garry Gross in the 1980s for his use of a picture Gross had taken of Brooke Shields. Undeterred he went on to upset a group of commercial photographers when he achieved international celebrity with his re-photographed enlargements of Marlborough advertisements which sold for millions of dollars.

This case will be important for artists because Cariou's legal team are arguing that the appropriations used in 'Canal Zone' are especially egregious because they are by an artist and not a commercial photographer. If the case goes to court Prince will need to demonstrate that his use of the images was transformative and therefore permissible under the United States’ doctrine of ‘fair use’, which allows for limited reproduction of copyright imagery for the purpose of parody or other creative ends.

Artists in the UK can run into difficulties when their appropriations are of material created for commercial gain by the 'cultural industries' such as the global film, broadcasting, and recorded music industries, who will use intellectual property laws to protect such products from perceived or actual commercial threats, including those perceived from visual artists' appropriating and using such media. Artists who are caught illegally using appropriations of film clips or stills in their work are infringing copyright and may have to pay a fine and serve up to ten years in prison. However, permission for non-commercial use are likely to be given at a low cost if the artist writes to the film or record company and explains the intended use and its relevance to the art work.

With regard to the appropriation of art works, the UK Copyright Designs and Patents Act 1988 automatically covers an original work of art when it is fixed in a material form until 70 years after the artists death. Copyright law protects the original physical manifestations of an artist’s ideas or concepts, such as the shapes, forms, configurations, perspective, and the colours or lines of a painting.

An artist is only considered to be the copyright owner of a work of art if its shape, form, configuration and perspective (the visual image) is not substantially derived from a work made by someone else; i.e. the artist must not have copied the visual language of another artist.

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