Introduction to Copyright in the Visual Arts
Appropriation is very common in the Visual Arts, especially with the development of technology and the increase in accessibility to digital images. But how are artists to protect themselves and know how to recognize when they are in a vulnerable position to be sued for copyright infringement?
All the great artists used their predecessors work as the basis of their own work. Picasso, paraphrased Manet’s Le Dejeuner Sur L’Herbe, in an extensive series of paintings, drawings and sculptures he executed between 1959 and 1961, Les Dejeuners. A century earlier, Manet, had previously used part of Raphael’s Judgment of Paris (circa 1515) as the basis for his work Le Dejeuner Sur L’Herbe.
Manet, Le Dejeuner Sur L’Herbe, 1962-3
Picasso, Les Dejeuners, 1960
Ever since the Sixties, artists had been incorporating copyrighted or trademarked images into their works. By the late 1980s there was a sizeable group of artists whose work consisted almost entirely of appropriation. There had been disputes before, but they had always been settled out of court. Andy Warhol had settled with a number of photographers after using their work without permission. In the 1970s photographer Arnold Newman had sued Larry Rivers after Rivers used a Newman photograph of the Statue of Liberty in one of his drawings. David Salle had been sued in 1984 after including in a painting a portion of a drawing that was in turn based on the famous photograph of Jack Ruby shooting Lee Harvey Oswald — a daisy chain of appropriation. Salle’s dealer, Leo Castelli, agreed to give the artist $1,000, according to John Koegel, Salle’s lawyer. Salle was sued again in 1989 after using a photograph as the basis for a backdrop he painted for the opera “Birth of A Poet.” Salle settled that one, too, before it went to trial.
Copying is not always a violation of copyright. Some acts of appropriation constitute a “fair use” of the original, a use considered socially valuable enough to permit some encroachment on the copyright holder’s monopoly. Fair use has been determined in the past by judges based on the information they have at hand. Then, in 1976, when congress rewrote the copyright statute, the rule finally gained a proper legal pedigree, though it retained its open-ended character. Section 107 of the Copyright Act stipulated that “fair use of a copyrighted work . . . is not an infringement of copyright.” In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.