The Permissibility of Appropriation

Whether or not artists should be permitted to appropriate (take and use) other peoples’ imagery in their creation of their art works relies very much on the context of the appropriation. For example, it is (traditionally) a given that the appropriated image is to be recognised by the viewer  – the artist intends for the viewer to bring their perception and meaning of the original work to their appropriated piece for whatever reason the artist intends (usually to make a statement, often about the piece in question). However, it is possible to argue that appropriated works that do not do this entirely are still acceptable in our post-modern (although it is almost definite that all appropriated works intend for the original to be recognised). Perceptions of appropriation range wildly – some think it is not permissible, while others think it is in some contexts. Appropriation and fair use is an ongoing issue in the law courts, and is particularly relevant today, with the rise of copyright issues and the freedom of the internet.

In terms of the law, fair use of appropriated imagery is determined in relation to four factors – the purpose and character of the use, the nature of the copyrighted original work, the amount and sustainability of the portion taken, and the effect of the use on any potential market[1].
The work must be transformative rather than derivative – that is, it must add new expression or meaning.
Works that appropriate from works of fact rather than fiction are more likely to be declared fair usage, as the dissemination of facts and information benefits the public.
For the most part, less is more – works that appropriate less are more likely to be declared fair usage by a court of law. The exception to this is parodies, as “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.”[2]
Finally, if a piece is seen to be intruding on the original’s place in the market, it is unlikely to be granted fair use (particularly if the work deprives the copyright owner of income).
For example, artist Tom Forsythe was sued by Mattel Inc. for his Food Chain Barbie series, in which he portrayed Mattel’s Barbie doll “juxtaposed with various kitchen appliances”[3] in absurd and occasionally sexualised positions. Mattel argued, naturally, that the works infringed on trademarks and copyrights. In return, Forsythe argued that his series criticised the objectification of women and the beauty myth, both concepts often associated with the doll. Defending his claim, Forsythe stated “Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture”[4] and that he “created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives”[5]. In the end, the 9th Circuit Court decided in favour of Forsythe, finding his work transformative, without likelihood of confusion between the work and the original product, and a parody, thus non-commercial[6].
Jeff Koons, artist (in this case, sculptor) was taken to court by Art Rogers, photographer, for his use of Rogers’ photograph Puppies in his sculpture String of Puppies.  Koons, who had seen Rogers’ image in a postcard, used it as a basis for a sculpture for an art show revolving around the theme of the banality of everyday items. Koons removed the copyright label from the postcard and “gave it to his assistants with instructions on how to model the sculpture”[7], requesting that as much detail as possible be copied, and that the puppies be made blue, noses exaggerated, and flowers be added to the hair of the man and woman. Koons proceeded to sell three sculptures for a total of $367,000, and Rogers sued for copyright infringement. Koons admitted copying the image intentionally, but claimed it fell under fair usage by parody. The court did not agree, finding substantial similarity – a defining standard developed and used by US courts to determine copyright infringement, and defining the sculpture to be a copy. As for the parody claim, it was rejected by the court, on the grounds that Koons could have constructed his parody without copying the image – it was a parody of the theme or style of image, rather than the image itself.

One use of appropriation is to enable the artist to readily comment or criticise on the original image, the context it was made in, its original message, or some other aspect surrounding the image. The comment or criticism is often subversive, aligning with the aesthetic theory that art has a social responsibility, and should constantly challenge aspects of society.
One such artist who appropriated for this reason was Andy Warhol, of the Pop art era. Warhol was fascinated with commercial, consumer, and celebrity culture, and regularly appropriated from related sources. However, it was often unsure what perspective he held on the images he appropriated – at times it seemed as if he were celebrating celebrity culture (definitely a possibility – Warhol thoroughly enjoyed the concept of fame), at others he seemed as if he may have been heavily criticising the mass media and consumerism. Take, for example, Warhol’s Brillo Soap Pads Box, in which Warhol directly copied the design for the shipping boxes for Brillo soap pads and stacked them in the gallery. Warhol later stated he “wanted something ordinary”. It is clear that the style in which the boxes were designed – clean, precise, and manufactured – was a response to the somewhat messier and more emotionally-driven abstract expressionists (a common motif running through pop art; many pop artists saw abstract expressionism as too high-brow, introverted, and self-obsessive, and created art that everybody could enjoy to combat it – interestingly, the designer of the Brillo box, James Harvey, was an abstract expressionist – Warhol knew him, but not of his Brillo connection[8]), but it is slightly less clear whether or not Warhol was celebrating or condemning commercialism and consumerism. Dr. Christopher Alexander poses the question: “Were these celebrations of American consumption, comments on the art market, condemnations of the “culture industry” and the growing commericalization of American culture? Were they sincere or satiric?”[9] In either case, it matters not in reference to appropriation, as both stances are commenting on the aspect of society the original image comes from[10].
Another example of Warhol’s appropriation is his Marilyn series. In this series, Warhol mass-produced images of Marilyn Monroe via the silkscreen method, resulting in vibrant images that were each slightly unique. It seems more likely this time that Warhol was celebrating celebrity culture, or at least Monroe, although his approach was rather morbid: “When Marilyn happened to die that month, I got the idea to make screens of her beautiful face the first Marilyns.”
Barbara Kruger is another artist who utilises appropriation to comment on aspects of the original image. A feminist artist, Kruger appropriated images in the 70s and 80s from magazines and the like in order to comment on aspects of society such as the portrayal of women, sexism, and the imbalance of power.
Kruger’s Untitled (Your Body is a Battleground) (designed for the 1989 march on Washington in support of women’s rights and the abortion-rights movement[11]) features an appropriated image of a model silk-screened onto vinyl and edited, split down the middle into positive and negative. The split critiques the objectified standard of symmetry in beauty, as well as being a reference to the “battleground” spoken of in the text. The image itself would have less effect if it were to not feature the appropriated photograph of the model, as it is an example of the objectified standard critiqued as well as a weapon against the accurate portrayal of women and their equality, to continue Kruger’s metaphor.
Kruger continues to work with appropriation, creating Untitled (Pro-life for the unborn/Pro-death for the born) in 2000. This piece features an image of the US President at the time, George Bush, notorious for the instigation of the war on terror in the early 2000s. The artwork would quite literally lose the vast majority of its meaning if the image of George Bush was not used, as it would lose all reference to its context. Without the image, it is clear that Kruger has a statement to make, but that statement loses all power and meaning.

However, as should be obvious, not all artists agree with appropriation. There are many who believe that art is a form of expression, that it should be unique and original. Abstract expressionism is a prime example of an art movement that fits with this group of artists.
Jackson Pollock is, today, the iconic abstract expressionist, known for his large-scale drip paintings. Although Pollock is deceased, and it is generally in bad taste to use someone as a reference when they are no longer around to make their point, we can extrapolate from what we know about him to deduce that he would most likely not approve of the appropriation we see today. Pollock stated “painting is self-discovery. Every good artist paints what he is,” and appropriation flies in the face of this. When an artist appropriates, they are using someone else’s work – to Pollock, this would be near blasphemy; it would be taking what someone else is and using it in the artist’s work. Pollock’s thought that “the modern artist is… expressing his feelings rather than illustrating” aligns with this view. Pollock thought that art should come from the self, the universal unconscious, rather from external sources.
All of Pollock’s works exhibit this theory. Autumn Rhythm was created on a large canvas that would encompass the viewer’s vision, eliciting a visceral reaction – tying in with the expressionist approach; the viewer could potentially feel what Pollock felt while creating the piece (it is as Tolstoy said: “One man laughs, and another who hears becomes merry; or a man weeps, and another who hears feels sorrow… and it is upon this capacity of man to receive another man’s expression of feeling and experience those feelings himself, that the activity of art is based”[12]).
Pollock’s Lavender Mist also exhibits this quality. The way in which Pollock painted exhibits his thinking that art came from the self, rather than the external surroundings. Pollock didn’t work from drawings; he didn’t make sketches and drawings and colour sketches into a final painting. He stated “the painting has a life of its own”, and that “technique is just a way of arriving at a statement”. Most importantly, “painters do not have to go to a subject matter outside of themselves. Most modern painters work from a different source. They work from within.”
Appropriation, by nature, is not working from within. It is working exclusively – the appropriated aspect, at least – from external, pre-existing sources. The thought of intentionally taking an existing image, created by someone else – such an intimate and personal act to Pollock – and using it in his own work would have been alien and absurd to him.

There are various aesthetic theories that, while more useful in defining whether or not appropriation is art at all, can be used in support of appropriation. For one, it is so common today, and so readily accepted by many people (upon writing this paper, it was said to me by someone with assumedly no formal education in art that it may “not be possible to not appropriate these days”) that the institutional theory of art – the theory that an object becomes art when it is considered by the “artworld” (a term coined by Arthur Danto in 1964 to mean “all the people involved in the production, commission, preservation, promotion, criticism, and sale of art”[13]) to be a piece of art.
Didacticism, a philosophy that emphasises informational and educative qualities in art, is also in support of most forms of appropriation, as a common core aspect of appropriation is that it has a message or criticism of some aspect of the artwork or society – the works are often intended to force the viewer into questioning something.
The state of the artworld in reference to authorship, ownership, and meaning is a precarious battleground, as the tenets of post-modernism still hold strong. With the death of the author, the meaning intended by the author or artist is no longer necessarily relevant, and as such, it could be seen as acceptable by some for artists to appropriate with complete disregard for the original intended message – and while this would perhaps not hold up in a court of law deciding fair usage, it would almost certainly lead to heated debate within the artworld. In fact, in our post-modern society, it is common for artworks to hold no inherent meaning whatsoever (a post-modernist response to the meaningful artworks created in the modernist era) – this could potentially be combined with appropriation to create an appropriated artwork without any inherent meaning. Of course, returning once more to the death of the author, the lack of inherent meaning intended by the artist could then be interpreted by the viewer to mean many things – the meaning required by appropriation in the traditional view and in courts of law being one of them.

In the end, it all comes down to context. Even the post-modernist approach with a lack of ownership and originality is dependent on context – if we were not living in a post-modernist society, the artworld would not be as accepting. The courts of law have their 4 Factors of Fair Use, but take lawsuits on a case-by-case basis. Pollock would view appropriation as something unacceptable, but once again, he was influenced by the context of the artworld he lived in – a modernist society, with a focus on the self, originality, and expression. Within the next few decades, our societal view on appropriation will change, being as controversial and debated as it is at the moment – who’s to say what will come next?

[1] Stanford University Libraries, Measuring Fair Use: the Four Factors

[2] Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

[3] The Thomas Jefferson Centre, 2005. Art on Trial: Copyrights and Artistic Expression.

[4] Talent Development Resources. Copyright

[5] Forsythe, Tom. The Fight for Free Speech

[6] Finnegan, Internet Trademark Case Summaries: Mattel, Inc. v. Walking Mountain Prods

[8] Gaddy, James, Print Magazine (2007). Shadow Boxer

[9] Dr. Alexander, Christopher, Notes on Words (2010). Appropriation in Art: Warhol’s Brillo Boxes

[10] Nonetheless, a popular reading is that the hollowness of the boxes emphasise the emptiness of either commercial culture, pop art, or Warhol’s work itself.

[12] Tolstoy, 1896. What is Art?


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