woman in bath by roy lichtenstein

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Appropriation [uh-proh-pree-ey-shuhn] in the arts is the use of pre-existing objects or images with little or no transformation applied to them. The use of appropriation has played a significant role in the history of the arts (literary, visual, and musical).

Appropriation can be understood as ‘the use of borrowed elements in the creation of a new work.’ In the visual arts, to appropriate means to properly adopt, borrow, recycle, or sample aspects (or the entire form) of man-made visual culture. Most notable in this respect are the ‘Readymades’ of Marcel Duchamp (are ordinary manufactured objects that the artist selected and modified, as an antidote to what he called ‘retinal art’).

Other strategies include ‘re-vision, re-evaluation, variation, version, interpretation, imitation, proximation, supplement, increment, improvisation, prequel… pastiche, paraphrase, parody, homage, mimicry, shan-zhai [Chinese imitation], echo, allusion, intertextuality and karaoke.’ The term appropriation refers to the use of borrowed elements in the creation of a new work (as in ‘the artist uses appropriation’) or refers to the new work itself (as in ‘this is a piece of appropriation art’). Inherent in our understanding of appropriation is the concept that the new work recontextualizes whatever it borrows to create the new work. In most cases the original ‘thing’ remains accessible as the original, without change.

In the early twentieth century Pablo Picasso and Georges Braque appropriated objects from a non-art context into their work. In 1912, Picasso pasted a piece of oil cloth onto canvas. Subsequent compositions, such as ‘Guitar, Newspaper, Glass and Bottle’ (1913) in which Picasso used newspaper clippings to create forms, became categorized as ‘synthetic cubism.’ The two artists incorporated aspects of the ‘real world’ into their canvases, opening up discussion of signification and artistic representation.

Marcel Duchamp is credited with introducing the concept of the ‘ready-made,’ in which ‘industrially produced utilitarian objects…achieve the status of art merely through the process of selection and presentation.’ Duchamp explored this notion as early as 1913 when he mounted a stool with a bicycle wheel and again in 1915 when he purchased a snow shovel and humorously inscribed it ‘in advance of the broken arm, Marcel Duchamp.’ In 1917, Duchamp formally submitted a readymade into the Society of Independent Artists exhibition under the pseudonym, R. Mutt. Entitled ‘Fountain,’ it consisted of a porcelain urinal that was propped atop a pedestal and signed ‘R. Mutt 1917.’

The work posed a direct challenge to traditional perceptions of fine art, ownership, originality, and plagiarism, and was subsequently rejected by the exhibition committee. Duchamp publicly defended ‘Fountain,’ claiming ‘whether Mr.Mutt with his own hands made the fountain or not has no importance. He CHOSE it. He took an ordinary article of life, placed it so that its useful significance disappeared under the new title and point of view– and created a new thought for that object.’ Duchamp also went so far as to use existing art in his work, appropriating an apparent copy of the ‘Mona Lisa’ into his piece, ‘L.H.O.O.Q.’

The Dada movement (including Duchamp as an associate) continued with the appropriation of everyday objects, but their appropriation did not attempt to elevate the ‘low’ to ‘high’ art status, rather it produced art in which chance and randomness formed the basis of creation. The Dadaist purpose was to ridicule the supposed meaninglessness of the modern world. Dada artists included Jean Arp, Hans Richter, and André Breton. A reaction to oppressive intellectual rigidity in both art and everyday society, Dada works featured deliberate irrationality and the rejection of the prevailing standards of art. Kurt Schwitters, who produced art at the same time as the Dadaists, shows a similar sense of the bizarre in his ‘merz’ works. He constructed these from found objects, and they took the form of large constructions that later generations would call ‘installations.’

The Surrealists, coming after the Dada movement, also incorporated the use of ‘found objects’ such as Méret Oppenheim’s ‘Object (Luncheon in Fur)’ (1936). These objects took on new meaning when combined with other unlikely and unsettling objects. In 1938 Joseph Cornell produced what might be considered the first work of film appropriation in his randomly cut and reconstructed film ‘Rose Hobart.’ This work was to inspire later video artists. In the 1950s Robert Rauschenberg used what he dubbed ‘combines,’ literally combining readymade objects such as tires or beds, painting, silk-screens, collage, and photography. Similarly, Jasper Johns, working at the same time as Rauschenberg, incorporated found objects into his work. Johns also appropriated symbolic images such as the American flag or the ‘target’ symbol into his work.

The Fluxus art movement also utilized appropriation: its members blended different artistic disciplines including visual art, music, and literature. Throughout the 1960s and 1970s they staged ‘action’ events, engaged in politics and public speaking, and produced sculptural works featuring unconventional materials. The group even appropriated the postal system in developing mail art. The performances sought to elevate the banal by appropriating it as ‘art’ and dissembling the high culture of serious music.

Along with artists such as Roy Lichtenstein and Claes Oldenburg, Andy Warhol appropriated images from commercial art and popular culture as well as the techniques of these industries. Often called ‘pop artists,’ they saw mass popular culture as the main vernacular culture, shared by all irrespective of education. These artists fully engaged with the ephemera produced from this mass-produced culture, embracing expendability and distancing themselves from the evidence of an artist’s hand.

In 1958 Bruce Conner produced the influential ‘A Movie’ in which he recombined film clips to produce this seminal work that comments on the propensity for humankind toward violence. At the same time Raphael Montanez Ortiz was involved in the ‘Destructionist’ movement in which objects and film were cut up, taken apart, burned and partially destroyed and then reformed to create new works. In 1958 Ortiz produced ‘Cowboy and Indian Film,’ a seminal appropriation film work.

In the late 1970s Dara Birnbaum was working with appropriation to produce feminist works of art. In 1978-79 she produced one of the first video appropriations. ‘Technology, Transformation : Wonder Woman’ utilized video clips from the ‘Wonder Woman’ television series. The term appropriation art was in common use in the 1980s with artists such as Sherrie Levine, who addressed the act of appropriating itself as a theme in art. Levine often quotes entire works in her own work, for example photographing photographs of Walker Evans. Challenging ideas of originality, drawing attention to relations between power, gender and creativity, consumerism and commodity value, the social sources and uses of art, Levine plays with the theme of ‘almost same.’

During the 1970s and 1980s Richard Prince re-photographed advertisements such as for Marlboro cigarettes or photo-journalism shots. Prince’s work spoke to issues of materialism and the idea of spectacle over lived experience. His work takes anonymous and ubiquitous cigarette billboard advertising campaigns, elevates the status and focuses our gaze on the images. The viewer questions the concept of masculinity portrayed in these heroic billboards and their relationship to the advertising campaign.

Appropriation artists comment on all aspects of culture and society. Joseph Kosuth appropriated images to engage with philosophy and epistemological theory. Other artists working with appropriation during this time with included Jeff Koons, Barbara Kruger, Greg Colson, and Malcolm Morley. In the 1990s artists continued to use appropriation art as a medium to address theories and social issues, rather than focusing on the works themselves. Damian Loeb used film and cinema to comment on themes of simulacrum and reality. Other high-profile artists working at this time included Christian Marclay, Deborah Kass, and Damien Hirst. Artists working today increasingly incorporate and quote from both art and non-art elements. For example, Cory Arcangel incorporates aspects of cultural nostalgia through re-working vintage video games and computer software. Other contemporary appropriation artists include the Chapman brothers, Benjamin Edwards, and Joy Garnett.

Despite the long and important history of appropriation, this artistic practice has recently resulted in contentious copyright issues which reflects more restrictive copyright legislation. The U.S. has been particularly litigious in this respect. A number of case-law examples have emerged that investigate the division between transformative works and derivative works. Many countries are following the U.S lead toward more restrictive copyright, which risks making this art practice difficult if not illegal.

Andy Warhol faced a series of law-suits from photographers whose work he appropriated and silk-screened. Patricia Caulfield, one such photographer, had taken a picture of flowers for a photography demonstration for a photography magazine. Warhol had covered the walls of Leo Castelli’s New York gallery in 1964 with the silk-screened reproductions of Caulfield’s photograph. After seeing a poster of their work in a bookstore, Caulfield claimed ownership of the image and while Warhol was the author of the successful silk screens, he settled out of court, giving Caulfield a royalty for future use of the image as well as two of the paintings. On the other hand, Warhol’s famous ‘Campbell’s Soup Cans’ are generally held to be non-infringing, despite being clearly appropriated, because ‘the public was unlikely to see the painting as sponsored by the soup company or representing a competing product. Paintings and soup cans are not in themselves competing products,’ according to expert trademark lawyer Jerome Gilson.

Photographer Art Rogers brought suit against Koons for copyright infringement in 1989. Koons’ work, ‘String of Puppies’ sculpturally reproduced Rogers’ black and white photograph that had appeared on an airport greeting card that Koons had bought. Though he claimed fair use and parody in his defense, Koons lost the case, partially due to the tremendous success he had as an artist and the manner in which he was portrayed in the media. The parody argument also failed, as the appeals court drew a distinction between creating a parody of modern society in general and a parody directed at a specific work, finding parody of a specific work, especially of a very obscure one, too weak to justify the fair use of the original.

In 2006, Koons won one for ‘fair use.’ For a seven-painting commission for the Deutsche Guggenheim Berlin, Koons drew on part of a photograph taken by Andrea Blanch titled ‘Silk Sandals by Gucci’ and published in a 2000 issue of ‘Allure’ magazine to illustrate an article on metallic makeup. Koons took the image of the legs and diamond sandals from that photo (omitting other background details) and used it in his painting ‘Niagara,’ which also includes three other pairs of women’s legs dangling surreally over a landscape of pies and cakes. In his court filing, Koons’ lawyer, John Koegel, said that ‘Niagara’ is ‘an entirely new artistic work… that comments on and celebrates society’s appetites and indulgences, as reflected in and encouraged by a ubiquitous barrage of advertising and promotional images of food, entertainment, fashion and beauty.’

In his decision, Judge Louis L. Stanton of U.S. District Court found that ‘Niagara’ was indeed a ‘transformative use’ of Blanch’s photograph. ‘The painting’s use does not ‘supersede’ or duplicate the objective of the original,’ the judge wrote, ‘but uses it as raw material in a novel way to create new information, new aesthetics and new insights. Such use, whether successful or not artistically, is transformative.’ The detail of Blanch’s photograph used by Koons is only marginally copyrightable. Blanch has no rights to the Gucci sandals, ‘perhaps the most striking element of the photograph,’ the judge wrote. And without the sandals, only a representation of a women’s legs remains—and this was seen as ‘not sufficiently original to deserve much copyright protection.’

In 2000, Damien Hirst’s sculpture ‘Hymn’ (which Charles Saatchi had bought for a reported £1m) was exhibited in ‘Ant Noises’ in the Saatchi Gallery. Hirst was sued for breach of copyright over this sculpture despite the fact that he transformed the subject. The subject was a ‘Young Scientist Anatomy Set’ belonging to his son Connor, 10,000 of which are sold a year by Hull (Emms) Toy Manufacturer. Hirst created a 20 foot, six ton enlargement of the ‘Science Set’ figure, radically changing the perception of the object. Hirst paid an undisclosed sum to two charities, Children Nationwide and the Toy Trust in an out-of-court settlement. The charitable donation was less than Emms had hoped for. Hirst sold three more copies of his sculpture for similar amounts to the first.

Street artist Shepard Fairey’s iconic ‘Hope’ poster of Barack Obama is symbolic of Obama’s 2008 presidential campaign. The image along with words like ‘hope’ or ‘progress’ in some versions was produced on posters, stickers, and t-shirts. In 2009, the Associated Press accused Fairey of copyright infringement saying the poster was based on a 2006 image of one of their photographers, Mannie Garcia. Fairey denied appropriating the image and claiming fair use sued the Associated Press. The civil lawsuit was settled out of court with Fairey agreeing not to use unlicensed Associated Press images and to share the rights for his image of Obama going forward. The financial terms of the settlement were not released. The Smithsonian Institute’s National Portrait Gallery in Washington acquired a collaged version of the image in 2009.

On the other hand appropriating a familiar object to make an art work can also prevent the artist claiming copyright ownership. Jeff Koons threatened to sue a gallery under copyright, claiming that the gallery infringed his proprietary rights by selling bookends in the shape of balloon dogs. Koons abandoned that claim after the gallery filed a complaint for declaratory relief stating, ‘As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain.’

In 2008, Patrick Cariou sued Richard Prince, Gagosian Gallery and Rizzoli books for copyright infringement, claiming that Prince’s appropriation of some 40 photographs of Rastafarians taken from Cariou’s book ‘Yes, Rasta’ failed to meet the terms of the ‘fair use’ doctrine, which provides an exception to copyright law. The images in question comprised the series of ‘Canal Zone’ paintings in which Prince variously painted gas masks and guitars over Cariou’s and Rastas from other sources (including a Bob Marley book), added in oversized hands, and pasted on images of naked women and male torsos, among other alterations.

In 2011, Judge Deborah Batts ruled in favor of Cariou, arguing that Prince’s series failed to meet the criteria for fair use because they were not sufficiently transformative of the original works and because Prince did not intend to comment on them. Perhaps even more surprisingly, Batts decided that Gagosian was guilty of acting in bad faith for selling the works of a ‘habitual user’ of non-copyrighted imagery without inquiring into its permission status. Gagosian is also appealing the ruling. Three judges for the U.S. Court of Appeals for the Second Circuit rejected Cariou’s motion to dismiss Prince’s right to an appeal, writing that “there remains ‘a continuing controversy capable of redress by this Court.’

Prince’s attorney on appeal, Josh Schiller, of Boies, Schiller & Flexner, says that Judge Deborah Batts,’ ‘far-reaching’ decision does not reflect time spent examining the paintings themselves before taking it upon herself to order that the paintings be confiscated and destroyed and for that reason did not see that any reasonable person would find a difference between Prince’s works of art and Cariou’s photographs. ‘Appropriation art is a well-recognized modern and postmodern art form that has challenged the way people think about art, challenged the way people think about objects, images, sounds, culture,’ says Schiller. ‘Art is always meant to be a reflection of culture or to move culture ahead, contribute to culture. I think what judges need to know is that appropriation art has its place on the shelf, in terms of adding and creating and inspiring people to make art, which is the purpose of the Copyright Act.’ The Andy Warhol Foundation, Google, and the Association of Art Museum Directors have all filed supporting briefs on behalf of Prince’s appeal.


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