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Art and copyright 2


Following on from this post, which suggested a strong incompatibility between contemporary art practices and copyright law in terms of the potential failure of copyright to cover some contemporary art, I’d like to take a quick look at the reverse – how contemporary art approaches copyright.

This should be a shorter post, because the brief answer is that current art practice generally fails to understand or consider copyright.

A basic tenet of contemporary art, as I mentioned before, is that the found object, or ready-made, is capable of becoming a work through context shifting alone. This includes pre-existing images, which may then be read as both a commentary on the pre-existing image and on the art context. This metaphoric eye will see no distinction between objects that are out of copyright and those that aren’t. In fact, in some cases the more present the pre-existing image in the current culture, the suitable for appropriation.

From Duchamp on, and most certainly since Warhol, mass culture has been subject to appropriation, even where, like Warhol’s Monroe images, the image duplicated is subject to copyright. Warhol may, with the emphasis on may, have made a significant alteration to his source, but would probably, in england, fall foul of the ‘substantial part’ approach of Designers Guild Ltd -v- Russell Wiliams (Textiles) Ltd (No 2) (2001). But then what of the work of someone like Richard Prince, who re-presents Marlboro Country?

Artist’s understanding of a ‘common culture’ is, in general, more concerned with the image/object repetoire that surrounds us than with the dates of copyright expiration. Sometimes, as with Prince, there are specific concerns about the ownership of rights in something all pervasive involved in the work. More generally, though, I think it is fair to say that there is an unarticulated presumption that public imagery is just that.

This presumption has come back to bite artists. In the US, Jeff Koons ‘String of Puppies’, based on a postcard, resulted in a successful claim against him by the photographer. Interestingly, the Court did not accept a ‘fair use’ defence – not available here – that use of the image was ‘criticism or commentary’ on commodity society. That is exactly the artworld understanding of the work. The Court required criticism/commentary to be of the work reproduced specifically. A later case, Blanch -v- Koons, concerning a partial use of an image in a larger work, had the opposite verdict, the copied image was used as ‘raw material in a novel context’ See also Hoepker & Dabney -v- Kruger & Others (2001), although the failure to register copyright that was part of Kruger’s defence would not apply in England.

In England, we have little in the way of case law. Humbrol’s case against Damian Hirst for ‘Hymn‘ was settled out of court. Anthony Robert’s case against Glenn Brown for ‘Loves of Shepherds'(2000) was likewise settled. (Interestingly Robert is usually described as an illustrator or commercial artist, Brown’s versions of artworks by Auerbach, Dali and others have not attracted any challenge. Once more, the artworld version of originality is far from the legal or even commercial one).

In many cases, it will obviously simply not be worth bringing a claim against some East end garrett dweller, which may partially explain the lack of cases.

Overall, though, the deep divide between an artworld view of ‘common culture’ and the legal view is clear. However, as the use or appropriation of pre-existing imagery is increasingly likely to come up against powerful opposition potentially more concerned with reputation or brand maintenance than any damages for infringement, this is likely to become a more fraught area. John Keane’s experiences with Disney over ‘Mickey Mouse at the Front'(1991), involving trademark rather than copyright as far as I recall, may become more common. Keane had the advantage of an institutional backer in the Imperial War Museum (and photos of the specific scene involved), a lone artist may feel less confident.

I have no particular conclusions to draw, beyond noting the gulf in understanding of such key terms as originality, common culture, even ‘artwork’ itself between artworld and law. This gulf is likely to become a greater issue than it has been so far, both in the protection of artworks and in claims against ‘appropriation’ works. However, artists (and many other ‘creatives’) are largely unaware of the legal landscape in which they work, and I would suggest it is clear that both existing legislation and the Court’s interpretation of it, is inadequate for dealing with contemporary art.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.



  1. Binary Law » Blog Archive » Where culture comes from - [...] second post is at but I don’t want to appear too self [...]

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