1.

The artistic strategy of appropriation within contemporary art forms presents a fundamental
challenge to the concepts of authorship and originality entrenched in copyright law. Should
the law acknowledge an exception for such work—how would this operate?

Appropriation Art versus and Copyright law

Postmodern appropriation artists are like magnifying mirrors which bring attention to certain social
phenomenon by reflecting the actual world through images easily found in the society1. Their practices
challenge copyright law with regards to both the issue of infringement in copyright by these works, as
well as the existence of their own copyright. Postmodern art is no longer employing material
expressions as the ultimate end to the work itself, but incorporates context and meaning as part of the
artwork. Copyright law has to balance between remaining relevant to the development of art by
appropriation artists, and offering adequate protection to the other artists who do not practice
appropriation in their artworks.

The essay will be anchored around the basis that copyright law exists to ensure a healthy and dynamic in
the arts by promising economic gains for the artists. With this as the guiding principle of copyright, I
propose that a win-win situation between appropriated artists and appropriation artists is attainable as
the two would not be competing in the same market and their interests are not mutually exclusive. In
the first part of my essay, I would discuss the concepts of ‘originality’ and ‘authorship’ in contemporary
art and how appropriation art, though challenging, in fact does not contradict the law’s definition of
such. In order to ensure greater certainty for appropriation artists, I would then propose for a clear
exception to be made under Fair dealing, for the usage of copyrighted materials by appropriation art.
Finally, I will justify my proposal, bearing in mind the limitation with regard to its implementation.

Postmodernist art has altered the definition of authorship to being a mere existence of an artist’s
intention or signature. This does not challenge the law’s fundamental definition of authorship and
originality, which “requires that the form of expression of work to ‘originate’ with the author” as a result
of “the author’s skill, labour and expertise or experience”2. Authorship in contemporary art becomes a
very fluid concept because artists see themselves as “a thinker and a creator far more than a craftsman”,

1
As Ames notes, “for appropriation to function, the artist must take an image that already exists as a recognizable
part of collective culture, challenging ideas about ownership and originality in the process”. Ames, E.K. (1993)
‘Beyond Rogers v. Koons: A Fair Use standard for Appropriation’, Columbia Law Review Association Inc., 93 (6):
1482.
2
See Raynolds, R. and Stoianoff, N.P. (2005) Intellectual property: text and essential cases. Annandale, N.S.W.:
Federation Press. p. 38.
Pan Pan GONG 2010 University of Melbourne 1
so the “concept”, not the personal execution, is most important in the artwork3. This fluidity of
authorship is epitomised by Andy Warhol’s signature of “This is not by me. Andy Warhol”4. By altering
the context, the intention and the ideas behind the work, even the same piece of work could be
considered as being transformed into a new one, with a new author. Artists make use of their expertise,
reputation and oeuvre which come from years of engagement with art, in the recontextualisation of
their ‘recycled’ work. The signature by Warhol would not have any market value or succeed in the
alteration of meaning to the fake prints, if he did not already have a reputation for his oeuvre of work. In
this way, as long as there is a clear transformation in the context and how the artwork is being perceived,
there is a value input by the artist which leads to a valid authorship for the appropriated work.

In considering originality and whether an appropriation art infringes copyright of other works, the
copyright law should accommodate the fluidity in authorship, and acknowledge that the value existence
of work is not limited to the visual images but also the artists’ reputation, oeuvre and the ideas behind
the works. Since the law does not require works to be completely novel to be considered as original, as
long as it does not reproduce a ‘substantial part’ of the copyright material, appropriation art cannot be
said to have infringed on the copyright of appropriated work by virtue of their material similarity. The
court had distinguished “reproduction” from “new original work derived from the [original+”5.
Appropriation art in this case, should be considered as new original work derived from the source
material through the changing context and valid new authorship. Imant Tillers for example, made a
statement about Australian artists’ act of appropriation and lack of originality through a work that
mirrors this act of appropriation or copying6. As meanings are integral to these artworks since artworks
are created to express artists’ thoughts and ideas, he cannot be said to have taken a substantial or the
essence of an artwork if the meaning or what is being conveyed through that artwork changes
significantly. The appropriation piece thus is a “new original work” because visual similarities should not

3
See Walravens, N. (2002) ’The Concept of Originality and Contemporary Art’ p. 182 in McClean, D. and Schubert,
K. (eds.) Dear images: art, copyright and culture. London: Ridinghouse: Institute of Contemporary Arts.
4
Warhol signed this on the fake prints made by Patricia Caulfield, who was passing the prints off as being made by
Warhol. By doing so, Warhol “affirm*ed+ a work to be by *him+ and denies authorship from the creator of the
source image” See Walravens (2002) ’The Concept of Originality and Contemporary Art’ p.378 in McClean, D. and
Schubert, K. (eds.) Dear images: art, copyright and culture. London: Ridinghouse: Institute of Contemporary Arts.
5
In Joy Music v Sunday Pictorial Newspapers for musical parody. See Suzor, N. (2008) ‘Where the bloody hell does
parody fit in Australian copyright law?’, Media and Arts Law Review, 13 (p. 231).
6
For Tillers, the source material has been ‘naturalised’ into the society, thus the usage constitutes to simply a
depiction of the environment and the facts surrounding this phenomenon of copying, instead of appropriating the
creative work. To make his point and for his work to address this particular phenomenon, he had to make use of
those very images.
Pan Pan GONG 2010 University of Melbourne 2
be seen as the ultimate criteria for ‘substantiality’, since the ‘essence’ of original work and artists’
intentions are lost with the change in context.

Despite the strong case for appropriation art to be valued as non-infringing entity, to argue on definition
is risky as artistic works are fundamentally defined by their material expression in law. Furthermore, to
give exception to any form of appropriation just by virtue of it being a piece of art is difficult to justify. In
order to ensure greater certainty and consistency in law, I shall next look at the fundamental objective
of copyright law, which granted the exceptions for certain usages under Fair dealing, and propose for
appropriate alteration to the Fair dealing for appropriation art which would not compromise the
fundamentals of the copyright law.

The law does not offer sufficient protection for appropriation-visual artworks because ideas, which are
central to these works, are being separated from their visual expressions in law, and the copyright law
protects the material expression of ideas. In order for the copyrighted work used in any other work to
be considered ‘fair’, the law applies a ‘substantiality’ test which creates uncertainty for appropriation art
as the line between ‘piracy’ and ‘fair use’ has not been clearly defined. In Rogers v Koons, the US court
clearly did not regard a change in context as a transformative change to the original7. The law needs to
set appropriate qualifiers for ‘fairness’, acknowledging that the substantiality is not based on the
material expressions as in the case of literary works because a visual artist has no alternate way of
paraphrasing an artistic work except to reproduce the visuals or the material expressions of it8.
Appropriation artworks do not take substantial part of the source work with regards to the symbolic
meanings and purposes of these works, though visually they make use of the entire artwork or even the
visual essence of the work in order to make their point. The altered context, the artist’s intention and
oeuvre ought to be recognized as part of the artwork in assessing if the appropriated art is ‘copying’
more than is necessary, or if the amount of ‘copying’ in fact does not constitute to being a ‘substantial’
part of the new work. This runs parallel to the fact that a truly transformative appropriation artwork
would not be competing in the same market as the appropriated, so there would not be a conflict of
interest between the two. In this light, it is reasonable to conclude that the evaluation of fairness and

7
See Sommer, J.J. (2000) ‘Copyright Law and Postmodern Art: Reconciling Property in Mass Media with
Democracy’ p. 53. Master of Arts Thesis. Concordia University.
8
See Okpaluba, J. (2002) ‘Appropriation Art: Fair Use or Foul?’p.121 in McClean, D. and Schubert, K. (eds.) Dear
images: art, copyright and culture. London: Ridinghouse: Institute of Contemporary Arts.
Pan Pan GONG 2010 University of Melbourne 3
substantiality of use should be oriented around the question of whether the appropriation artwork
would threaten the economic interest of the source artwork.

The idea that by giving exceptions to appropriation art, the rights and values of the source artwork are
necessarily compromised is a false dilemma, because the interests of the appropriated artists and the
artistic freedom of the appropriation artists are not mutually exclusive. The purpose of copyright is to
prevent the “appropriat[ion of] the result of another’s labour”9 so as to ensure a continuous healthy
development in the arts and the creative industry by incentivizing artists to create10. As Ames noted, the
fact that copyright “is of limited duration” implies that it is “merely a means to the end of promoting
eventual public access to the work”11.In this vein, it is clear that while individual interests of artists are
important in the formation of the law, in the grander scheme of things, copyright law seeks to increase
access to knowledge and creative work for the public12. As such, the copyright incentive system serves
as a tool in encouraging artistic creations in order to benefit the public and the artist community.
Because of the priority for public good and the recognition for the importance of criticism in the
development of the society, and art in this case, the law has exempted through the Fair dealing doctrine,
the usage of copyright works for purposes which do not threaten the existing market of the copyrighted
work.

Recent alteration of the Australian Copyright law to include satire under Fair dealing indicates the
willingness of law in recognising different forms of expressions and criticisms—that of which need not
be directly critiquing the source material as long as the “use is fair”13 because the source material is seen
as merely “a vehicle for the satire”14. It would appear that appropriation art could make use of this new
exception since it is often used to critique the commoditized society or a social phenomenon by putting
artworks in a different context. However, the qualifier for satire under the copyright law is the usage of

9
See Loughlan, P. (1998) Intellectual Property: Creative and Marketing Rights. LBC Information Services: Sydney. (p.
13).
10
See Loughlan, P. (1998) Intellectual Property: Creative and Marketing Rights. LBC Information Services: Sydney.
(p. 14).
11
See Ames, E.K. (1993) ‘Beyond Rogers v. Koons: A Fair Use standard for Appropriation’, Columbia Law Review
Association Inc., 93 (6): 1487.
12
See Ames, E.K. (1993) ‘Beyond Rogers v. Koons: A Fair Use standard for Appropriation’, Columbia Law Review
Association Inc., 93 (6): 1487.
13
See Suzor, N. (2008) ‘Where the bloody hell does parody fit in Australian copyright law?’, Media and Arts Law
Review, 13 (p. 242).
14
See Australian Copyright Council (2007) Information sheet: Copyright Amendment Act 2006. p.5.
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“irony” or the act of “ridiculing…vice or folly”15,which would likely exclude the kind of appropriation
works by artists like Sherrie Levine, Jeff Koon and Richard Prince as these artist do not employ irony or
ridicule in making their artistic statements. The ridicule and irony come from the viewers’ understanding
of the context and the extent to which the works reflect the contemporary society. Works like “String of
puppies” by Koon and “After Walker Evans” by Levine invite the viewers to reflect and conclude the
meaning behind the work simply through the presentation of the work in a different setting. It is clearly
understood that these works do not threaten the existing market of originals since their strong mark of
authorship creates a whole new market away from that of the original work16. The only issue with such
implicit expressions of ideas and criticisms in art, done through a change in context instead of in visual
image, would be that the resulting appropriation artworks risk becoming substitutes of the originals if
viewers are not able to understand the importance of context in artworks. This is exceptionally pertinent
when it comes to derivative works such as commercialized prints and photographs of these works,
which are unlikely to reproduce the context of appropriation art thus a direct competitor in licensing
with the original artwork17 as Ames has pointed out.

To ensure that the copyright law can remain true to its purpose of protecting the economic interest of
copyrighted artists, while advancing concurrently with the development of the arts, I propose to give
exception to appropriation art under Fair dealing, in those artworks that do not compete in the same
market as the appropriated work. I would also propose to include an appropriation royalty scheme for
derivative works under this Fair dealing exception, so that a balance could be struck between ensure
economic interest of copyright owner and the appropriation artists who have also put into effort into
making their work original, especially when the appropriation artwork has acquired a reputation of its
own18.

15
See Australian Copyright Council (2007) Information sheet: Copyright Amendment Act 2006. p.5.
16
In Levine’s case, the title of the work clearly indicates its nature as a derivative work, giving credit to Evans which
means there is a clear distinction between the nature of the appropriation and the appropriated work. People are
unlikely to be confused and two distinct markets would exist for the two works marked by different author and
name. In Koon’s case, he has already obtained a certain reputation in the kind of work he does and the nature of
the work. As a result, group of followers and market which it would attract would be different from those of
Rogers.
17
See Ames, E.K. (1993) ‘Beyond Rogers v. Koons: A Fair Use standard for Appropriation’, Columbia Law Review
Association Inc., 93 (6): 1473—1526.
18
This consideration for derivative works is an alteration of and in response to the proposed treatment of
derivative works by Ames. Ames has proposed to withhold the rights of appropriation artists in licensing derivative
works to ensure that the economic incentives of the original artists are well protected because he sees derivative
Pan Pan GONG 2010 University of Melbourne 5
The monetary incentive to create should be available to both the appropriated artists and the
appropriation artists. The appropriation royalty scheme exists as a warranty protection for the economic
interests of the appropriated artists. Unlike copyright license, approval of the original artists would not
be required so appropriation artists do not need to face the uncertainty of approval19, nor pay a hefty
sum which they might not be able to recover even with the sale of the appropriation artwork. In order
not to penalize the appropriation artists for using copyrighted work in their expressions, the royalty
scheme should only be applicable for commercial transaction of works which are in the same
commercial market as the appropriated, such as in the case of derivative works. To safeguard the
economic interest of ‘original’ artists, the burden of proof should be on the appropriation artists, who
would first need to establish that the appropriation artwork would not threaten the market of the
original, thus ‘fair’ in its appropriation.

It is important to note, however, that the implementation of this scheme would likely incur a substantial
amount of administrative costs for the regulating agency. Nevertheless, just as the resale royalty scheme
has been widely implemented to offer better protection for the economic interest of artists, this scheme
is also worth considering as it would serve the interest of artists on both sides of the case. I would
propose, too, that the appropriation artist make adequate acknowledgement20 to the appropriated
work, especially if the appropriated work is relatively unknown. This is to ensure that the appropriation
artist does not have the intention of passing off the work as his raw creation and it would act as a
double protection to the economic interest of the original artist21.

Focusing on valuing copyright of art only in its material form and overlooking the contexts and meanings
of artworks, the copyright law can no longer adequately encourage artistic freedom in the postmodern

works of appropriation art as being direct competitors to those of the original work due to the absence of context
in those reproductions. See Ames, E.K. (1993) ‘Beyond Rogers v. Koons: A Fair Use standard for Appropriation’,
Columbia Law Review Association Inc., 93 (6): 1473—1526.
19
“A risk-averse copyright owner often has little incentive to license satirical works, given the potential for
negative public perceptions and high transaction costs in copyright negotiations.” See Suzor, N. (2008) ‘Where the
bloody hell does parody fit in Australian copyright law?’, Media and Arts Law Review, 13 (p. 242).
20
Acknowledgement could be in the form of the title (as in Levine’s appropriation work), or artist’s statement for
example. As to how and what is considered “adequate” is beyond the scope of this essay.
21
Okpaluba, J. (2002) ‘Appropriation Art: Fair Use or Foul?’ p. 211 in McClean, D. and Schubert, K. (eds.) Dear
images: art, copyright and culture. London: Ridinghouse: Institute of Contemporary Arts. I am in agreement with
the author’s belief that a fair use exception to appropriation art should serve the purpose of allowing and
encouraging appropriation artists to use images for the creation of their works. However, this exception should not
allow artists to appropriate to the extent that the incentive to produce original works is diminished. It is my
personal belief that this incentive would only be compromised if acknowledgement of original works is missing.
Pan Pan GONG 2010 University of Melbourne 6
art world. It restricts the development of controversially innovative appropriation art which is based on
unique contexts in their construction of meanings, in the attempt to offer incentives for ‘original’ artists
to create. In order to truly serve its purpose, it needs to orientate around its raison d’être—that of
incentivizing artists for their creative efforts while not restricting the development of other artistic
expressions—innovatively.

Pan Pan GONG 2010 University of Melbourne 7

Bibliography

Ames, E.K. (1993) ‘Beyond Rogers v. Koons: A Fair Use standard for Appropriation’, Columbia Law Review
Association Inc., 93 (6): 1473—1526.

Australian Copyright Council (2007) Information sheet: Copyright Amendment Act 2006.

Loughlan, P. (1998) Intellectual Property: Creative and Marketing Rights. LBC Information Services: Sydney. (pp 61-
68)

Okpaluba, J. (2002) ‘Appropriation Art: Fair Use or Foul?’ p. 211 in McClean, D. and Schubert, K. (eds.)
Dear images: art, copyright and culture. London: Ridinghouse: Institute of Contemporary Arts.

Raynolds, R. and Stoianoff, N.P. (2005) Intellectual property: text and essential cases. Annandale, N.S.W.:
Federation Press. (pp 16-23; 32-74)

Sommer, J.J. (2000) ‘Copyright Law and Postmodern Art: Reconciling Property in Mass Media with
Democracy’ Master of Arts Thesis. Concordia University.

Suzor, N. (2008) ‘Where the bloody hell does parody fit in Australian copyright law?’, Media and Arts Law Review,
13. (pp 218-248)

Walravens, N. (2002) ’The Concept of Originality and Contemporary Art’ in McClean, D. and Schubert, K. (eds.)
Dear images: art, copyright and culture. London: Ridinghouse: Institute of Contemporary Arts. (pp 171-187)

Pan Pan GONG 2010 University of Melbourne 8