“We have a hunger for something like authenticity, but are easily satisfied by an ersatz facsimile.”—George Orwell
Appropriation art began with Georges Braque and Pablo Picasso at the turn of the century, got hot again in the 1950s with pop artists like Robert Rauschenberg and Andy Warhol, then saw a kind of third-wave heyday in the 1980s with artists like Richard Prince and Sherrie Levine.
The technique of appropriation ranges from parody to pastiche, to collage and ready-mades, and to modern reinterpretations and recontextualizations. While Warhol did see some legal challenges during his era, the intellectual property police have turned increasingly litigious within the past 20 years. With universal concepts of origin and authenticity having become an anachronism in our postmodern age, shouldn’t the legal process adapt accordingly?
Prince is mostly known for his interpretations of Marlboro ads. In his Cowboys series, he removed the copy from popular Marlboro advertisements, exposing the exaggerated societal codes of masculinity and what it means to be an American. He and other appropriation artists of his day were informed by Barthesian critique—questioning the concept of authorship and authenticity by exposing binary oppositions and societal codes and turning them on their heads. The work of Barthes, Eco, Derrida, and Foucault was particularly au currant in the 1980s and still informs the work of contemporary artists. This is evidently a problem for the courts system.
Earlier this year, Prince was found guilty of copyright violation for using images from French photographer Patrick Cariou’s Yes Rasta book for his Canal Zone series. Prince is currently appealing the decision. In the past Prince has testified that his intention as an artist is to create work that “transforms something that’s already existed without getting involved in the original intent of the image.”
Prince’s appeal lawyer stated, “Judge Batts put too much weight on the artist’s own characterization of his work, and the artist’s ability to articulate what their message is…Besides, what’s to stop attorneys from simply coaching clients on how to describe the meaning of their art?”
Batts ruled that Prince’s work was not transformative because to be so a work must “in some way comment on, relate to the historical context of, or critically refer back to the original works it borrows from.”
“Transformative” is the word the IP police use when determining whether something violates copyright. Nevermind that Prince has transformed the originals—he has transformed the images themselves and their context, not to mention the art market as well (independent of how critics feel about his work).
The clincher in the Prince decision was his statement that the Rasta in one of the images is “playing the guitar now, it looks like he’s playing the guitar, it looks as if he’s always played the guitar, that’s what my message was.” This comment strikes me as both a spoken variation of his famous Joke paintings (which began in the mid-80s) and evidence of his PoMo leanings. After all, Prince once described his Joke paintings as “Abstract. Especially in Europe, if you can’t speak English.” Suffice it to say, the courts punished Prince for being a smart aleck.
During the trial, the courts brought up Koon’s Easyfun-Ethereal series to distinguish his appropriation of imagery as an example of adequate transformation. Koons won his 2006 case against fashion photographer Andrea Blanch because the use of her image commented on the nature of materialism and consumer culture. The court determined that what was in question was “whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery of working up something fresh.”
It’s cases such as these that beg the question, how do you define genuine creativity? Can one really say that a person who develops an idea that’s already been done is not being genuinely creative? Herein lies the trouble of qualifying intent in the arts. The original intention for intellectual property law was to encourage artistic expression by providing protection for the artist’s ideas; but perhaps this protection goes a little too far. For I fail to see how having to pay royalties or else be slapped with a law suit for interpreting an image or idea in a new way that the owner doesn’t like is encouraging. And this doesn’t just apply to blue-chip artists like Koons and Prince either; it goes for everyone with the cognitive capacity to form an idea.
Chalking off a piece of art as “not transformative enough” is just as problematic as saying “not creative enough” or “not avant-garde enough.” The problem isn’t Prince or Koons: the problem is intellectual property law itself.
Copyright law proponents say that you can’t copyright an idea; indeed, this is the basis for all intellectual property law. Taken to its extreme, this law can produce some fairly ridiculous outcomes. Take the Ford Motor Company, for example: It has claimed rights to every picture ever taken of any Ford car, even those that you may take of your own.
In cases such as this, I can’t help but feel that we’re one step away from taking people’s comprehension of others’ ideas to trial. After all, as Martin Kippenberger said, “Any picture I see belongs to me the instant I understand it.” If most people grant that you can’t (or at least shouldn’t) copyright ideas, why should it be okay to essentially copyright intent and interpretation? The time has come for law makers, not just theorists, to be asking these questions.