Appropriation art and copyright law

Whilst appropriation or homage to existing works has been a key practice in the history of art (see earlier blog post), the interpretation of what is acceptable under UK copyright law can be somewhat different.

There is a useful online video that discusses this dilemma, which has been created by Artquest as part of their Artlaw TV series which provides online legal information for artists. The video includes artist David Mabb and art lawyer Henry Lydiate talking about Mabb’s appropriation of the work of William Morris as well as a run-in with Magnum Photos:

Art and Appropriation - when does artistic freedom become copyright infringement? by Artquest
Art and Appropriation – when does artistic freedom become copyright infringement? from Artlaw TV, used with permission from Artquest.

As the video explains, artistic works are protected by UK copyright law for the duration of the creator’s life plus 70 years after their death, and artists who base their work substantially on these existing works without first gaining the copyright holder’s permission are likely to be infringing copyright. As Lydiate states, although the intentions and meanings behind two works may be different, it is the amount of visual similarity to the layperson’s eye which matters in terms of UK copyright law.

Copyright cases relating to appropriation art in the US

There have been several high profile cases in the US in recent years, in which well known appropriation artists have been accused of copyright infringement, with some differing outcomes:

  • Richard Prince made use of Patrick Cariou’s photographs of Jamaican Rastafarians without permission in his ‘Canal Zone’ series, which resulted in a 2011 US court case ruling in favour of Cariou as well as an order for the works to be destroyed (see the article by Charlotte Burns in The Art Newspaper).

  • Shepard Fairey eventually settled out of court with Associated Press in 2011 in relation to his famous ‘Hope’ poster, which was based on a photograph of Barack Obama taken by a photographer for Associated Press. Both sides stand by their differing interpretations of the law, but have come to a financial settlement as well as an agreement to work together on a new series of images based on the agency’s photographs (see the BBC News article).

  • In another reported case in 2011, a US court has ruled against Thierry Guetta, aka Mr Brainwash, in relation to his use of a photograph of the rap group Run DMC taken by Glen Friedman. This case also adds a further twist to Banksy’s 2010 film about Guetta’s transformation into an artist (Exit through the Gift Shop), which some viewers suspected was a Banksy hoax and that Guetta was simply a fictional character (see Ben Child’s Guardian article).

  • In a US court case in 2006, artist Jeff Koons successfully defended his use of a photographic advertisement by Andrea Blanch. The photograph showed a woman’s feet wearing jewel-strapped sandals, which Koons had re-photographed and used with other images in a collage painting. Although this was a victory for the appropriation artist, it comes after Koons had lost three copyright infringement cases in relation to other works made earlier in his career (see PACA Update).

Copyright cases relating to appropriation art in the UK

It is worth noting that US and UK law are not the same and that the US concept of ‘fair use’ is ‘wider, more general and permissive’ than in UK copyright law, which currently takes a more conservative approach (Lydiate, 2009).

Whilst there have been accusations of copyright infringement and out of court settlements in relation to appropriation art in the UK, there doesn’t yet appear to have been any court decisions made directly in relation to appropriation art.

The Artquest video describes one very well known dispute which was resolved out of court in relation to a painting by British artist and Turner Prize nominee Glenn Brown in 2000, and its similarity to a painting by Tony Roberts that appears on the cover of a 1970s science fiction book. Another well known British artist who has faced several accusations of copyright infringement is Damien Hirst. In 2000, Hirst reached an out of court settlement in relation to his 20 foot bronze sculpture ‘Hymn’, due to its similarity to the Young Scientist Anatomy Set. As part of the settlement, Hirst agreed to pay an undisclosed sum to two childrens charities and restrictions were placed on future reproductions of the work (see BBC article).

Appropriation artists protecting their copyright

In a reversal of roles, some appropriation artists have sought to protect their copyright and to prevent other artists from appropriating their work. For example, in 2008 the press reported that the Design and Artists Copyright Society (DACS) had written on behalf of Hirst to the 16 year old school boy and artist, Cartrain, who was selling collages online which used photographs of Hirst’s diamond-encrusted skull, including some which imposed the skull over the faces of figures taken from other photographs. DACS asked for the works to be removed from sale and a £200 payment, which Cartrain complied with (see Arifa Akbar in The Independent).

In another reversal of roles, American artist Jeff Koons sent cease and desist letters in 2011 to the manufacturer and retailer of dog balloon shaped book ends, which he considered were violating the copyright of his large scale stainless steel sculptures of balloon dogs, a claim which he later backed down from (see Kate Taylor in the New York Times).

Balloon Dog Book End from Park Life Store
Balloon Dog Book End, used with permission from Park Life Store, San Francisco.

Further Information

This blog post only touches on certain aspects of UK intellectual property law, and for further information on copyright and intellectual property, see the Artquest and own-it websites which provide information and advice to artists and the creative sector. The key legislation in this area is the Copyright, Designs and Patents Act 1988.

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