Artistic Appropriation, Copyright and Creativity - Literature review Example

?Copyright Issues for Appropriation Artists Question Are collage and appropriation in visual arts stifled by the modern interpretation of copyright? Introduction The term appropriation has been differently interpreted by various scholars (Craig, 2011; Meyers, 2006; Hampel, 1992). It has rather evolved from one meaning into another. Earlier in the Greek period it was related to copying of a specific work and incorporating it in a different manner to create another (Pedley, 2005). Recently, the term has been considered solely as “taking inspiration” from other works by means of adding the selective portions of other’s copyrighted work to form a different work (Craig, 2011). Collage is a type of appropriation. Different parts of copyrighted works are incorporated in a random manner to form a totally different and new work not previously existed. Aim This literature review aims to explore the different scholars’ views in the favor of the statement that modern scope of copyright restricts the culture of collage and visual arts appropriation as well as the views of scholars against this notion. Objectives 1. What is the concept of appropriation? 2. What is the modern interpretation of a copyright? 3. What is the impact of copyright on the creativity and advancement of artistic knowledge? 4. How practice of appropriation can survive in the technological age? 5. What are the alternative approaches to use copyrighted works without resorting to an infringement? 6. What works are appropriated and are considered enforceable in the courts of law? 7. Are there any theories for copyright and fair use? 8. Is there any case law available related to appropriation and copyrights? 9. Who are the authors in favor of the statement and against it? Literature Review Lankford (2011) explored the history of the practice of appropriating visual arts. He argued that this practice dates back to Greeks period who invented the technique of appropriation. Pablo Picasso, Benjamin Edwards, Greg Colson, Andy Warhol and numerous artists used collage and artistic appropriation as a regular and important practice of art (Lankford, 2011). However, Lankford (2011) highlighted that in the eighteenth century, the artists did not have any right over their creative works. Instead, Cohen (2011) observed that the publishers or sellers of the work held all the rights over the works. The author further observed that as a result, the artist freely appropriated other works to form a collage work (Cohen, 2011; p.89). The modern copyright law has its roots in the Statute of Anne of 1710 that recognized author rights in a certain but limited manner (Pedley, 2005). Hampel (1992) argued in the favour of artist’s appropriation. He postulated that the appropriation does not deprive the copyright holders of their copyrights and any of their financial benefits. Therefore, Hampel (1992) required that they should be free to use the other artist’s works without seeking authorization or licensing. Furthermore, Meyers (2006) highlighted that the copyrights law discourages the artists to expand and innovate in their works. The author forcefully disagreed with the licensing and authorization requirements to initiate an appropriation of visual arts, which drags on the time frame for its completion. Davies (2010) an advocate of copyright law provides that the term copyright literally means the right to copy. He postulated that the appropriation of visual arts in the form of a collage work is a copyrightable subject matter as it is an expression in physical form instead of a mere idea that has no physical form for claiming intellectual property rights over it. He provided that when a work is applied for copyright registration, the Intellectual Property Office of United Kingdom examines the work in terms of its originality, degree of labour, skill or judgement exhibited by the work. Davies (2010) provided that the work has to be original and should not be similar to others copyrighted work otherwise it will become an infringement of other’s copyright. The modern copyright law restricts the copying, selling, licensing, adapting, translating and all other ways (i.e. renting and lending the copies of work to the public) of using a copyrighted work by all persons except the owner of the copyright. Thus, a person who is not the owner of the copyright cannot use, copy, sell, license, adapt or translate that work. Ng (2011) highlighted that the copyright law had been created to safeguard the rights of the author by providing them strong enforcement rights that discourage others from illegally using the works and stealing the financial gains from the artist. Pedley (2005) postulated in the favour of visual artists that the basic purpose of giving a monopoly (i.e. copyright) to the author of the work is to recognize and protect the rights of the artist to the financial and non-monetary gains (like goodwill and reputation) associated with its copying and use. The artist invests their time, money and efforts into the work, which forms the artist’s bread and butter. Due to the wide technological advancement in the world, it has become much easier duplicating and copying the works of other artists. In order to ensure that the original works are protected as well as to provide a means for flourishing creativity in the world, the copyright law includes an exception of fair use or fair dealing. Del Peral (1993) advocated in the favour of visual artists and examined the extent of fair use to allow artists to appropriate without being found liable for copyright infringement. The collage and appropriation of visual arts is an act of fair dealing. Landes (2000) postulated that the fair dealing is any limited use of copyright work that does not infringe the copyright in it qualifies as an act of fair dealing. Davies (2010) argued that collage or appropriation of a copyrighted work is an act of fair dealing until it does not violate or infringe upon other persons copyright. Fair dealing includes seeking of authorization from the copyright holder for the use of copyrighted work. The copyright holder can issue licenses for the use of the work for the specific purpose and nature with or without royalties. Lankford (2011) postulated that fair dealing requires that the appropriation of visual arts should give full credit to the works that have been appropriated as it is the moral right of the copyright holder and if not duly recognized can give rise to infringement. Wong, Torsen and Fernandini (2011) claimed artist’s appropriation as lawful. They reported that in the case of Roger vs. Koons, a summary motion judgement was held against the defendant on the basis that the court rejected both defences. Jeff Koons created a sculpture, String of Puppies, inspired by the work of photographer Art Roger to display in its Banality Show in 1985. Art Rogers sued Koons for copyright infringement. The minor changes in the appearance of the couple’s dresses, faces, embodiments does not qualify as anything original or involving skill or labor from the creator. The picture and the sculptor were both alike and therefore, Roger had significant share in the interest of the sculptor (Ames, 1993). The court decided against Knoos on the basis that the work was not appropriation but a derived one. A work that is derived from other means it is copied totally or partially to create another work. This new work will be a derivative work of the original work. The copyright law requires that in a derivative work, the original owner should be fully credited with his/her name and royalties. In the absence of which, the work will become a copyright infringement. Davies (2010) argued that “as a serious late twentieth century art movement, appropriation art selects items of popular culture and reproduces them in a serious art making process that is recognized by the art world but not by the judge in this case” (p. 345). The author argued that the appropriation is a totally technical term and process which is unknown to a judge or legislature. Wong Torsen & Fernandini, 2011 believe that when drafting a copyright law, a visual artist’s advice is not sought to ensure that all their issues are given due consideration. As a result, the copyright law is a document which has no artistic feel. At the time of judgement, the judge also lacks any artistic understanding which gives way to artistically unfair decisions but legally fair ones. The court instead relies on the benchmarks and criterion to assess the case of alleged infringement of copyright work. These benchmarks are: (1) Substantial use of labor, (2) Skill and, (3) Judgement of Artist. These benchmarks are also used initially by the Intellectual Property Office to register a copyright. The basic idea behind these benchmarks is to differentiate an original work from the one that is either a copy of the same work or belong to a third party copyright. McLeod and Kuenzli (2010) postulate that the first criterion assesses the work in a technical manner. It uses aspect of artistic understanding to examine the work in terms of the use of finances, effort and time by the artist to produce that work. In case of appropriation, the work is examined and it is assessed that how much input has been made by the artist into the work which has appropriated parts of third party’s copyright work. The degree of input determines that the artist has created an original or fake work. The second criteria of skill determines that what is the skill set possessed by the artist in appropriating a particular copyrighted work. The level of skill used will transform the work to categorically differ from the actual work (McLeod & Kuenzli, 2010). The third and final criteria of assessing a copyright work are from the viewer’s perspective. The visual arts are mostly defined in the perspective of a third person’s mind. If a third person who lacks knowledge of technical knowledge of arts considers the work as original, the work will be considered as such. On the contrary, if the work is considered as a copy of the original work, it will be considered a copy. In terms of a visual artists concern, the decision of Rogers v. Koons seems unfair to the artist community. Cohen (2011) argued that the copyright laws are insufficient in regard to the artistic work. They lack the understanding of the intricacies involved in the work and particularly, the basic mode of an artist’s earning through the work. The law takes a single sided approach to infringement of a copyright and a reason for the artist to lose his/her royalties. On the contrary, Cohen (2011) explained that the work of art is unique of every artist. Therefore, when an artist appropriates the work of others, it does not hurt the financial aspect of the artist in any way until it is a complete copy-pasting activity. On the other hand, Craig (2011) an advocate of copyright law postulated that the copyright laws provide strong protection for copyright holders and ensure that no visual artist infringes the copyright as the court decided in the favour of the defendant. Koons, also, used a portion of the picture of fashion photographer Andrea Blanch to form a collage painting (see picture below), (Ng, 2011). Blanch brought a suit of copyright infringement against Koons which was decided against her on the basis that Koons had used only the portion of the actual picture and modified it significantly to form an original piece of work with substantial use of labour, skill and judgement (Pedley, 2005). Furthermore, Koons had not used the cabin and man’s lap that was also the part of the picture to infringe the copyright in the work. Conclusion From the analysis of the literature defending both viewpoints, it is concluded that the modern copyright law paves a way forward for the artists to create works in a way that the visual artist can take benefit of the copyright laws through fair use only. In case the visual artist does not take into consideration the fair use and appropriates in a manner that infringes upon the copyright holder might result into a lawsuit that can be highly burdensome. References Ames, K.E., (1993). Beyond Rogers v. Koons: A fair use standard for appropriation. Columbia Law Review, 93(6). Cohen, A.K., (2011). Designer Collaborations as a Solution to the Fast-Fashion Copyright Dilemma. Bipress. Craig, C.J., (2011). Copyright, Communication and Culture: Towards a Relational Theory of Copyright. Edward Elgar Press. Davies, G., (2010). Copyright Law for Artists, Photographers and Designers. Essential Guides. Del Peral, S (1993). Using Copyrighted Visual Works in Collage: A Fair Use Analysis. Columbia Law Review. Vol. 93, No. 6 (Oct., 1993), pp. 1473-1526 Hampel, S. (1992) “Note: Are Samplers Getting a Bum Rap?: Copyright Infringement of Technological Creativity?” University of Illinois. Law Review 559. Landes, William M.,(2000) Copyright, Borrowed Images and Appropriation Art: An Economic Approach. U Chicago Law & Economics, Olin Working Paper No. 113 Lankford, Elsa M., (2011). Sampling Real Life: Creative appropriation in public spaces. Electronic, Media and Film, Towson University. McLeod, K., & Kuenzli, R., (2010). Cutting across media: Appropriation art, interventionist collage and copyright law. Library of Congress, USA. Meyers, E., (2006). Art on Ice: The Chilling Effect of Copyright on Artistic Expression. 30 Column. J.L. & ARTS 219. Ng, Alina, (2011). Copyright law and the progress of science and the useful arts. Elgar Law, Technology and Society. Pedley, P., (2005). Digital Copyright. Facet Publishing. Wong, T., Torsen, M., & Fernandini, C., (2011). Intellectual Property and Human Development. Chapter 8: Cultural Diversity and the arts: Contemporary challenges of copyright law. Cambridge University Press. Read More