Use It

Recently, Albany Law School held a conference in New York City on the future of copyright, and one academic panelist bemoaned the fact that we now have a generation of people, weaned on the Internet and digital media, who think they can just grab anything that’s out there and create anything they want. He was followed by another panelist who thought that not only was this attitude not a problem, but it represented the biggest advance in creativity since the invention of the printing press.

That’s a pretty big spread.

Using somebody else’s work in your new work—the whole “remix culture” thing—falls under the general category of “appropriation art.” There has been appropriation art around since the second caveman copped the first caveman’s cave drawings. It’s a fancy way of saying “collage.” And with deep roots in the cubist, dada, and pop-art movements, appropriation art may be the predominant “serious” art movement in the world right now. I’ve given a couple lectures at the School of the Museum of Fine Arts in Boston recently, and the vast majority of the work coming out of there is, one way or the other, appropriation art.

There’s a little problem with all this, and it’s called copyright law. Every creator owns the copyright in his/her original work upon the work’s creation. Appropriation art, then, also looks like a fancy way of saying “infringement.” Which means we’ve got the major art movement in the world in a high-speed head-on crash with the law. A good thing for lawyers, I guess, but not for anybody else.

A recent court decision from the 2nd Circuit federal appeals court may have advanced a solution to this train wreck. Superstar appropriation artist Jeff Koons appropriated a photo of a woman’s legs from a fashion magazine photo spread, and stuck them, along with images of other women’s legs, on a huge painting that included hot fudge sundaes, donuts and Niagara Falls (don’t ask). Koons got a $2 million commission for his work. The fashion photographer had been paid $750 by the fashion magazine. Figuring there was some good money in it, the photographer sued.

Koons relied on the doctrine of fair use, an exception to the general rule that infringement is bad. Sometimes, using somebody else’s work for something new is in society’s interest; sometimes using somebody else’s work advances the purpose of copyright law: the advancement of the arts. The concept of fair use has been around for as long as copyright law has been around, and it’s always been a big smelly problem. Courts come up with rules and guidelines and principles about fair use, and then a new situation comes along that proves all of them to be absurd. Trying to decide something as grand as “what’s in society’s interest” in terms of artwork can be a subtle and nuanced exercise, and the courts are not a good place for subtlety, as judges are rarely good with nuance.

So courts have been screwing up fair use for years, but lately they seem to be zeroing in on some interesting, novel, and broad principles, and the Koons decision is the latest bright light in this process.

About a dozen years ago, the Supreme Court ruled that 2 Live Crew’s hideous version of “Oh, Pretty Woman” was a fair use of Roy Orbison’s song because it was, to some extent, a parody of the original. Parodies are essentially commentaries, and the Court ruled that a commentary about an existing work that uses parts of that existing work was a classic type of fair use. The Court also talked a lot about the need for a work to be “transformative” to qualify for a fair use “get out of jail free” card. No fine point was put on this concept of “transformative works,” but the decision was clearly an invitation for lower courts to flesh out the concept.

Which is what the Koons court did. The court defined a “transformative work” as one that doesn’t supercede the original, but rather adds something new to it, with a different purpose and meaning. The court then ruled that Koons’ painting had an entirely different purpose than the photograph, and that Koons’ use of the actual photograph was essential to that purpose. Then the court looked at a couple of other factors and decided Koons’ appropriation was a fair use. Wow.

Does this give the appropriation artist a license to steal? Is music sampling suddenly OK? Is “remix culture” legal?

The short answer, as with most questions regarding copyright law, is “it depends.” Fair use is still complicated, it’s still cloudy and unpredictable, and it probably always will be that way. But the 2nd Circuit has opened a door by providing a legal rationale for bona-fide appropriation art that makes a lot of sense. The decision is good for art and good for society.

It’s such a pleasure to be able to write about something positive, and not just bitch about stuff like I usually do. Yippee!

—Paul Rapp

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