NO LONGER APPROPRIATE?

No longer appropriate?

“Appropriating” other artists’ work without consent is still common, but savvier practitioners know that permission is far less painful. Breaching copyright is a serious business

By Laura Gilbert. Opinion, Issue 235, May 2012

Published online: 09 May 2012

Artists who “appropriate” the work of others are increasingly coming into conflict as a slew of recent cases involving artists including Shepard Fairey, Ryan McGinley and Thierry Guetta (“Mr Brainwash”) demonstrates. Now, in the Court of Appeals for the Second Circuit, which 20 years ago ruled that Jeff Koons was “sailing under the flag of piracy”, Richard Prince is appealing a lower court decision from March 2011 that he too is flying the pirate banner.

If his case fails, the award to the photographer Patrick Cariou, whose works Prince reused in his “Canal Zone” series, is potentially “in the millions”, Cariou’s attorney Daniel Brooks says. Papers submitted by Prince’s legal team cite as justification work by artists Jeff Koons, Sherrie Levine, Robert Rauschenberg and Andy Warhol.

Yet there is growing evidence—albeit rarely reported—that, although these artists may have started out as willing or unwitting outlaws, they decided that possibly infringing other artists’ copyright was legally unwise and potentially expensive, and they stopped.

Jeff Koons has not used a copyrighted work without permission for a long time, says his attorney, John Koegel. His client “has learned more about copyright” since defending himself in five infringement suits. “Where permissions are perceived to be needed, they are sought,” Koegel says.

In 1992, the Second Circuit, the highest US court to hear the case, ruled against Koons for using photographer Art Rogers’s postcard of a husband and wife holding a litter of puppies as the source material for the sculpture String of Puppies, 1988. Koons had sent the postcard to his fabricators in Italy with written instructions that the “work must be just like [the] photo”.

“The copying was so deliberate,” the court decided, “as to suggest that defendants [Koons and the Sonnabend Gallery] resolved that so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist’s work would escape being sullied by an accusation of plagiarism.”

That case was one of four that Koons ultimately settled out of court, although he won the fifth and last, when the Second Circuit ruled in 2006 that his use of an Andrea Blanch photograph was protected under copyright law as “fair use”.

Koons hasn’t stopped using copyrighted material but now gets licences first—his “Popeye” series, shown in 2009 at London’s Serpentine Gallery, is just one example. Koegel says that although responses to Koons’s requests vary, “hordes of people” have granted permissions, including United Feature Syndicate, which had earlier sued him, and Marvel Comics.

Sherrie Levine, who recently had a retrospective at the Whitney Museum of American Art, began appropriating as a self-conscious outlaw. “She made it clear that piracy, with its overtones of infringement and lack of authorisation, was the point,” reported Gerald Marzorati when he interviewed Levine for Artnews in 1986.

In the early 1980s, Levine photographed and duplicated classic works by US photographers Walker Evans and Edward Weston, changing only the title. Both the Evans and Weston estates objected to her unauthorised use of their pictures. Arguably her most famous work, her photograph of Evans’s historic portrait of Depression-era sharecropper Allie Mae Burroughs (After Walker Evans: 4, 1981), in fact appeared in a Whitney brochure during the retrospective as copyright of the Walker Evans Estate, not Levine.

“She doesn’t have the copyright because of a dispute with the estate,” says a staff member at New York’s Paula Cooper Gallery, which represents her, and none of her Weston “re-photographs” were included in the retrospective. The “understanding” of Howard Singerman, a professor of 20th-century art and theory at the University of Virginia and author of Art History, After Sherrie Levine, is that Levine agreed not to exhibit the “After Edward Weston” series or use any of his copyrighted photos, and agreed not to sell the “After Walker Evans” series though she could show it. Her gallery says: “The artist would not like to disclose information about these questions.” In any event, Levine apparently changed her practice to avoid “copyright snags”, rephotographing works that were already in the public domain, Marzorati reported.

There are older precedents. The young Andy Warhol, for example, was caught using copyrighted material, but then started working with rights holders to secure licences. According to gallery owner Ronald Feldman, who worked with Warhol on some of his most famous prints, including the smiling Mickey Mouse, “we went for permissions”.

In the 1960s, Warhol faced three infringement lawsuits when he used photographs by Patricia Caulfield, Fred Ward and Charles Moore. He settled all three cases out of court. “Andy wasn’t trying to steal,” Feldman says. “He learned a lesson from the lawsuits. I was always concerned about the rights, as was he.”

According to Feldman, for “Ten Portraits of Jews of the 20th Century”, he tracked down and obtained the rights for all the source photographs. “We paid for [the rights to] the Kafka photograph because we had to,” he says. “Trude Fleischmann gave [her Einstein photograph] to us for free.”

Warhol desperately wanted to do Disney characters, so Feldman persuaded the company to allow Warhol to use images of Mickey Mouse and Donald Duck. Warhol agreed to Disney’s demands for shared copyrights and other controls, along with original prints. Superman, 1981, from Warhol’s “Myths” series is also a joint copyright, with DC Comics.

San Francisco photographer Morton Beebe only discovered that Robert Rauschenberg had used two of his photographs in the 1974 print Pull when his friends, artists Christo and Jean-Claude, were looking at his portfolio. Christo pointed to the photograph Mexico Diver and said: “My God, is that yours or Rauschenberg’s? Have you seen Time magazine this week?”

Beebe got hold of the magazine and saw in a feature about Rauschenberg that he had not only used Mexico Diver but also his photograph of a native New Guinean repeated across the top of the print. Both pictures were part of a series Beebe had shot for an advertisement for Nikon cameras that had appeared in 17 magazines.

Beebe sued. Rauschenberg’s printer testified that the artist had showed him the Nikon ad and said: “I’ll just lift it.”

Rauschenberg settled, paid the photographer’s legal fees and gave him a numbered print of Pull. He promised that whenever the image appeared in print Beebe would be acknowledged. Later, when Beebe discovered another unauthorised use of Mexico Diver, Rauschenberg gave him another print of Pull, which Beebe sold for $13,000.

Beebe points out that potentially high legal fees makes photographers reluctant to sue (in the US litigants typically bear their own costs). After the suit settled, in 1980, Rauschenberg shifted to using his own photographs exclusively for the next 28 years if his life, according to the Guggenheim Museum and others.

Some artists, such as Mike Bidlo, who has copied other artists’ work for decades in the same size and medium as the original, regularly work with rights holders. When unsuccessful in getting permission, Bidlo may do something else with the work he wanted to copy. Years ago, when he wanted to replicate Marcel Duchamp’s readymade Fountain, he wrote to the artist’s heir Jacqueline Matisse Monnier for permission. When he “didn’t get the response we were looking for”, Bidlo created what he called “extrapolations” and “transformations”—drawings based on the object.

As for Richard Prince, he has cultivated a reputation as an outlaw who takes whatever image he wants without asking permission. “I didn’t exactly ‘fall’ [into photography] as much as steal,” he told Artforum in 2003. But at his deposition in the Cariou case, Prince testified that in 1992 he had paid $2,000 to Garry Gross for reusing the photographer’s 1976 photograph of ten-year-old Brooke Shields standing naked in a steamy bathtub. The image, which Prince titled Spiritual America, 1983, is one of his most notorious: it was pulled from a 2009 Tate exhibition because it could possibly violate obscenity laws.

“I bought the rights,” Prince testified. Apparently, the Whitney, which in 1992 was organising a Prince show, would not display Spiritual America without evidence that Prince had licensed the original.

Would the history of art be different if “appropriation” artists in America were always more a part of the process—as the most famous ones became—seeking permission or paying fees? “Can I be agnostic on that?” Singerman says.

Looking at the practice of some of the best-known “appropriation” artists reveals that they often came around to acknowledging copyright law more quickly and more fully than is generally thought—without negative effects on their reputation, success or creativity.

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