Copyright Law and Appropriation
The purpose of copyright law, can be envisioned as a structured framework of guidelines that is established towards maintaining the concepts of authorship, originality and of course, financial return. It primarily “rests on a principle of ‘natural right’ or ‘natural justice’, namely, that labour provides a principled foundation for property right and that this property right is a natural right” (Loughlan, 1998, p. 12). A second principle that “emphasises the public interest over author’s private interest” is the idea that copyright exists to “contribute to the nation’s economy by reason of its incentive-creating function” (ibid, p. 14). Putting the Capitalistic mechanics aside, the issue of public interest must also be concerned whether copyright law stifles the act of creativity that can function as integrated within the economy in a stronger or lesser degree, as well as outside the field of monetary logic. In order for copyright law to remain positive and useful for the propagation of artistic creativity, it has to be evaluated and reconfigured within the specificity of our present culture: a semiotically saturated, hyper-commoditised global network environment in which consumers and artists alike are bombarded by a kaleidoscopic array of media images, and have greater access to the means of production. What does it mean to be creative, and how productive is it to hold on to classical notions of authorship and originality entrenched in copyright law within such a cultural network?
I will attempt to answer these questions by analysing the contradiction between appropriation in contemporary art forms and copyright law. It is my aim to demonstrate that the lack of consideration for such creative endeavours in copyright law must be addressed in order to account for our present cultural climate and to create avenues that will enable artists to exercise this strategic and timely form of creativity that is crucial for a healthy and evolving arts sector. I will also consider the limitations of a strategy of appropriation, arguing that an acknowledgement of appropriation within fair dealing must be implemented critically to avoid the depthlessness and indifference much associated with postmodernity.
The Consumer as Remix Artist
Firstly, I would like to turn to the general consumer who appropriates copyrighted commodities available in the mass market in a creative way, though not always consciously so, that transforms the context of the appropriated works to communicate personal and newly constructed forms of subjectivity. While such works do not constitute a legitimate artform within the academic and even popular conceptions of art, I still feel the need to account for such practices as in most cases, there is a degree of productive creativity and it is in synch with the idea of a Remix culture that harnesses the creative potentialities of appropriation.
Youtube is a rich source of such material, in which anyone can take many diverse forms of screen footage, sound recordings, and splice them together with easily and cheaply available software, to create their own videos that are not financially motivated. Lessig states that in contrast to RO culture (Read/Only) that consists of the consumption of commodities, are these practices of RW (Read/Write) culture that are beneficial to community and education in the way it encourages solidarity in production and interested-based learning and creation (2008, p. 76-77). However, the copyright owners are often quick in claiming their rights to the appropriated media works, stifling this creative process that has been brought about by the community-based web technology. This process clearly highlights the power relations between the corporate entity and the creative consumer. The capital held by the corporate copyright owner enables them to overpower, through their authority and ‘legitimacy’ in the economy, to bring forth lawsuits or warnings against the often-powerless consumer who engages in RW culture.
While RW culture will exist despite the territorialisations imposed by copyright law, it being a fundamental aspect of spontaneous creativity, Lessig argues that copyright law will stifle RW culture as a form of literacy, making its practitioners criminals and prevent institutions from harnessing the potential of these forms of expressions (ibid, p. 108). The loss of individuality and creativity within the standardisation of a media saturated industry has been an ongoing theoretical concern. Adorno and Horkheimer argue that the oppressive nature of consumption induced by the standardisation of cultural products stuns “the mass-media consumer’s powers of imagination and spontaneity” (2005, p. 35). However, a consumer that participates in RW culture to transform such products refutes this hypothesis and reaffirms an act of creative production that is lost in the act of consumption.
Appropriation in the Arts Sector and the Utilisation Fair Dealing
In the arts industry, artist such as Andy Warhol, Roy Lichtenstein, Jeff Koons and Glen Brown, have expressively utilised appropriation as a strategy in conceiving their works of art, resulting in numerous legal complaints, of which, most are settled out of court. While the doctrine of fair dealing allows, to a certain extent, a defence in relation to appropriation, court settlements are often avoided due to the undetermined nature of this defence. For example, a fair dealing can be based on an artist’s intention of parody and satire. However, there are no definite guideline to what constitutes parody and satire. Furthermore, it is also a matter of avoiding the associated legal costs and time that a settlement in court entails.
There are some exceptions such as Rogers vs Koons (1992), in which Jeff Koons appropriated a photograph a black and white photograph of a man and woman holding a line of puppies taken by Art Rogers, and gave it to his assistants to construct a sculpture of similar detail, but with the exception that the puppies are in blue with exaggerated noses and the addition of flowers attached to the man and woman’s hair. Koons’ defense in utilising parody and satire under fair dealing failed at the court found substantial similarity and that he was not commenting on Roger’s work specifically.
In a later case, Blanch vs Koons (1996), Koons appropriated a photograph by Blanch that was featured in Allure magazine, titled Silk Sandals by Gucci, which shows a woman’s bare legs with a dangling Gucci shoe on one foot. In this landmark case, Koons’ lawyer, John Koegal described the artwork as a celebration of “society’s appetites and indulgences, as reflected in and encouraged by a ubiquitous barrage of advertising and promotional images of food, entertainment, fashion and beauty.” (cited in Artnet News, Jan 19 2006, par. 2). Judge Louis L. Stanton accepted the fair dealing defence brought forth by Koons, asserting that the work is transformative and that the appropriated cutup was “”not sufficiently original to deserve much copyright protection.” (ibid, par. 5). However, it is still possible for Allure or Gucci to bring forth a case of copyright violation if it is in their interest. Nevertheless, the outcome of this case reaffirms the legitimacy of appropriation art. But it must be noted that this event occurred only because Koons has substantial capital through his success to engage in legal dealings. This is an affirmative act in the sense that Koons position enables him to challenge copyright law on behalf of the multitude of appropriation artists. However, one successful outcome does little to change the current legality of appropriation, and other artist might still turn to out of court settlements.
Postmodernism and Appropriation
Postmodernism is a buzz word in describing the contemporary cultural climate that one cannot avoid within a discourse on the legitimacy of appropriation art. Within this climate, conceptions of high and popular art collapse into a mishmash of cultural indeterminacy and style. Lyotard describes situates this climate within post-industrial society, in which “the grand narrative has lost its credibility, regardless of what mode of unification it uses, regardless of whether it is a speculative narrative or a narrative of emancipation” (2004, p. 211). Thus, works of art and the hyper-saturated bombardment of media output that one is exposed to within postmodernity are approached, not within the individualistic conceptions of authorship and originality, but as a regime of signs.
Copyright law is structured to protect material forms of expression. However, within postmodernism appropriation is the paradoxical movement in which the artist attempts to express the currency of postmodernity by perceiving and utilising other material expressions simply as a sign, or rather, in a Baudrillardian sense, a simulation that expresses its lack of expression. Hutcheon propagates the parodic and ironic value of postmodern artf orms, asserting that it is a matter of forming “self-conscious, self-contradictory, self-undermining statement[s]” (1989, p. 1). This is given representation in the fair use doctrine via parody and pastiche. However, there is also the danger that postmodernist art forms might lapse into a form of depthlessness and indifference. As Jameson states, within postmodernism, “parody finds itself without a vocation; and that strange new thing pastiche slowly comes to take its place” (p. 73). This deptlessness is further heightened through mechanical production within the post-industralisation of late capitalism. For example, in Koons’ appropriation of Roger’s photograph, he contracted a studio to produce four similar copies. Thus, he had no material input other than the idea for the appropriation. While it can be argued that Koons is engaging with mass culture in an attempt to collapse the definition of high art, such practice, nevertheless, represents a form of indifference and arrogance that positions postmodernity as a plateau of affect, a stifling of new forms of expression, of which, the regime of copyright law seems to guard against.
A fair degree of authorship and originality is needed, even within an art of appropriation, for a healthy and evolving culture. However, within copyright law, these two concepts function within the hegemony of a classical Eurocentric articulation. Middleton argues that musicology terminology, as based on an enlightenment tradition, emphasises musical elements such as melody, harmony, tonality which are associated with classical music; while other musical qualities much associated with popular music that are outside this framework, such as rhythm, pitch nuance and gradation suffer from a lack of representation (1990, p. 104). The second set of musical qualities, in with uses of appropriation are common, are often associated with African-American genres such as dub, rap and hip hop. In these traditions, the act of appropriation is taken as a native practice of community based articulation on heritage or its traditional roots through the double act of reference and recontextualisation. The sample is one aspect of these music genres that is brought about by the proliferation of recording technology. For example, rap “has been linked with the prevalence of ‘sampling’: the re-use in new recordings of parts taken, by digital reproductive means, from pre-existing sound recordings and thus also from any music embedded in these recordings” (Barron, 2006, p. 33). The creative product that results from such appropriations are still considered original articulations of the artist concerned, but not in the sense that it becomes a deadlock of property. Rather, it is a form of originality that is open to further recontextualisation, much like a territory with an open door that leads out to creative possibilities in the future.
The entrance and currency of such genres within popular music is primarily an act of appropriation by western culture that functions via a “commodification of difference” that “promoted paradigms of consumption wherein whatever difference the Other inhabits is eradicated, via exchange, by a consumer cannibalism that not only displaces the Other but denies the significance of that Other’s history through a process of decontextualization” (Hooks, 2001, p. 431). Racial politics is another matter that throws back the accusation of appropriation to Western Capitalistic manoeuvres. However, the contingent issue here is that, since these genres have gained a currency within popular music, it becomes crucial to reevaluate copyright’s Eurocentrism to accommodate and give ample representation to such art forms.
Conclusion: Reforming Copyright Law
Lessig sketches out two possible shifts in copyright law in relation to the economy that will enable a healthy RW culture. Firstly, amateur creativity must be free from copyright regulation in the sense that it becomes a matter of free use rather than fair use (2008, p. 254-255). As I have mentioned, such instances are not profit-oriented and are important as a means for the consumer to transcend the passivity of consumption towards healthy and simple artistic expressions. Secondly, Lessig proposes that since “the main function of copyright law is to protect the commercial life of creativity,” and that in most cases “commercial life is over after a very short time,” it then becomes plausible to abolish the automatic extension of copyright and re-establish “an opt-in system of regulation” that “narrowed its protection to works that—from the author’s perspective—needed it” (2008, p. 262-263). This will enable more material expressions to accumulate within the public domain. However, in this paradigm, corporate entities that are insistent on the protection of intellectual property are still able, despite the devaluation of the economic shelf life over time, to extend their copyright plainly as a form of territorial motivation.
The flexibility of the fair use doctrine enables avenues towards new perspectives in its implementation if more appropriation cases are brought forth to challenge the current mindset. However, as I have mentioned, many artist will simply avoid legal proceedings due to its costly and time-consuming nature. As such, appropriation artists who have substantial capital should take the initiative in pushing the current boundaries of the fair use doctrine. Thus, Koons’ insistent disputes over infringement charges are affirmative acts that pave the way for the artistic community’s agency despite charges of depthlessness and commercialism associated with his work. However, I am sceptical of a total acceptance of postmodern appropriation methods within the fair-use doctrine. The concepts of originality and authorship should still be utilised, but not in a Eurocentric sense that completely territorialises futures uses of original works, to resist the form of depthlessness and indifference that is symptomatic in postmodernity. The law should acknowledge and utilise in their case-to-case determinations, how the current cultural climate, the informational superhighway, gives rise to appropriation in artistic production. But this should not become criteria for exemption. As Miller states, “The danger within writing, of taking sampling too far—too much citation, not enough synthesis—leads to the break with the old form. Who speaks through you?” (2004, p. 113). This is a matter of substantial transformation, of projecting new ideas and subjectivities towards future possibilities.
Perhaps, resistance towards the rigidity of copyright law should, firstly, work towards educating and changing people’s mindsets about the usefulness of copyright law. An ongoing discourse on the ineffectiveness of copyright law, its stifling of creativity, should be implemented extensively; it must be understood and propagated by the general public; it must gain a larger field of representation. The creativity involved in appropriation should be demonstrated and reaffirmed in arenas that are safe from the crutches of copyright law in order for its practicality to emerge more widely. An example of such a milieu is the Creative Commons project that “provide free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof” (Creative Commons, n.d., par. 2). It is without doubt, that such resistance, together with the increasing level of digitalization of network society, will result in significant changes in copyrights law’s approach to appropriation in the future.
References
Adorno, T. & Horkheimer, M. (2005). ‘The Culture Industry: Enlightenment as Mass Deception’. in During, Simon. (ed.). The Cultural Studies Reader. (2nd ed). New York: Routledge. 31-41.
Artnet. (Jan 19, 2006). Koons Wins Copyright Lawsuit. Retrieved, 20 May, 2009, from http://www.artnet.com/magazineus/news/artnetnews/artnetnews1-19-06.asp
Barron, Anne. (2006). Introduction: Harmony or Dissonance? Copyright Concepts and Musical Practice. Social Legal Studies, 15(25), 25-51.
Creative Commons. (n.d.). About. Retrieved, 25 May, 2009, from http://creativecommons.org/about/
Hooks, Bell. (2000). “Eating the Other: Desire and Resistance”. in Durham, M. D. & Kellner, D. M. (eds.). Media and Cultural Studies: Keyworks. Oxford: Blackwell Publishing. 424-438.
Hutcheon, Linda. (1989). The Politics of Postmodernism. London & New York: Routledge.
Jameson, Fedric. (1993). ‘Postmodernism, or the Cultural Logic of Late Capitalism’. In Docherty, Thomas. (Ed.). Postmodernism: A Reader. Hemel Hempstead: Harvester Wheatsheaf. 62-92.
Lessig, Lawrence. (2008). Remix: Making Art and Commerce Thrive in the Hybrid Economy. London: Bloomsbury Academic.
Loughlan, P. (1998). Intellectual Property: Creative and Marketing Rights. Sydney: LBC Information Services.
Lyotard, Jean-Francois. (2004). ‘The Postmodern Condition’. in Easthope, A. & McGowan, K. (Eds.). A Critical and Cultural Theory Reader. Toronto & Buffalo: University of Toronto Press. 206-217.
Middleton, Richard. (1990). Studying Popular Music. Milton Keynes: Open University Press.
Miller, P. D. aka DJ Spooky. (2004). Rhythm Science. Cambridge: MIT Press.
