The Pictures Movement, the Copyright Act of 1976

Nate Harrison • [email protected] !!
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The Pictures Movement, the Copyright Act of 1976,
and the Reassertion of Authorship in Postmodernity
I. Introduction
In the three decades since Sherrie Levine and Richard Prince [PLATES 1 and 2] first
exhibited their appropriated photographs––the unaltered images blatant in their disregard for
copyright law––the tyranny of authorial rights and the increase in infringement litigation across
the cultural spectrum has been nothing less than astonishing. Lawsuits over unauthorized use of
cultural products are so commonplace as to imagine that within contemporary art, appropriation
since the Pictures generation might have been determined by artists to be a very legally risky
endeavor.1 And while there has been the occasional lawsuit involving appropriation art that is
eventually judged to be in violation, those familiar with contemporary art will have no doubt
sensed that appropriation is alive and well. There is a lot of copying going on, and as art historian
Martha Buskirk describes, “the types of copies that appear in contemporary art are as varied as
the materials artists have employed.”2
There are some initial observations that might help explain this. First and perhaps
obvious is the notion that most artists, after all, are not legislators, lawyers or judges. In the most
basic sense, artists remain arbiters not of law but of culture, historically tasked with interrogating
its signification, even as the commodification of the sign––so heavily theorized in the 1980s––
has become inextricably linked with its regulation through the legal apparatus. Creative disregard
for the rule of copyright law is perhaps then a type of anti-establishment dismissal, feeding the
notion that for artists, the law does not apply. And while that isn’t true, it might appear that way.
As Richard Prince himself has stated, in justifying the use of the Marlboro Man campaign for his
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Untitled (cowboy) series of photographs: “I never associated advertisements with having an
author.”3
Any immunity from (or at least willful ignorance of) intellectual property law that artists
claim can be contextualized within an institutionalization of art that is at once in formal dialogue
with but in relative consequence cutoff from the everyday economic-legal “facts” of mass
production. Much of contemporary art seems to operate “under the radar,” its works momentary
blips of limited range, its market values and potentials paltry in comparison to the monetary
sums indicative of big-budget spectacle culture. Art seems to pose no threat to the status quo, and
certainly not to its economy. Therefore any of art’s transgressions against the legal regimes that
govern both it and mass culture are more or less acceptable in the former, because they are
innocuous to the latter. As Peter Bürger laments in describing the seeming impotence of a critical
avant-garde project, “It is the status of their products, not the consciousness artists have of their
activity, that defines the social effect of works.”4
But what of those instances when artists’ transgressions are considered a threat? Who
evades the law, who doesn’t, and why? To understand how appropriation art slips in and out of
the grasp of intellectual property regimes, inquiry should be carried out at the level of artistic
praxis and legal case study: what sort of content have artists been appropriating? How, if at all,
are they transforming it, and to what ends? Where in the cultural and economic structures of
society are the appropriated, the “violated,” located, and what bearing does this location have on
the potency of appropriation?
It is the practical relationships between art and mass culture, each with their social and
economic characteristics, that deserve renewed inspection in light of not only the proliferation of
appropriation art since the late 1970s but also the rise of intellectual property rights management
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as an essential component of information society. Through an appraisal of Levine’s and Prince’s
early practices, I hope to show that a tension arises when “art as idea,” a legacy from Duchamp
through to conceptual art and a fundamental basis of appropriation strategies,5 conflicts with the
“idea as economy” realities of post-industrial capitalism. The resulting relation curiously grants
appropriation art wide license in its otherwise illegal use of protected material, something unique
to it when compared to other modes of cultural production.6 With this license, appropriation art
has, as legal scholar Marci Hamilton writes, the “Unique capacity to permit individuals to live
through worlds they have not and even cannot experience in fact and thereby to view and judge
their own world from a new perspective.”7 Yet the license is granted only so long as
appropriation art and any critical project it might pursue remain in the realm of Marcusian
“affirmative culture,” which is to say, as long as it remains institutionalized as Art. “What counts
as utopia, phantasy, and rebellion in the world of fact,” states Marcuse, “is allowed in art…It
displays what may not be promised openly and what is denied the majority.”8 On the surface
Hamilton’s and Marcuse’s statements might appear to differ only slightly, but their contrasting
political implications are striking. Appropriation art’s restriction as a critical and potentially
transforming social tool towards the mass culture forms it appropriates (and thus towards their
ideological bases) is precisely what allows it nearly unrestricted freedom in its subversion of the
laws that regulate those forms. This assessment inverts the artist’s self-granted immunity
described above, for it is not the artist who decides how the law functions within art (culture),
but the laws regulating the “world of fact” that decide how art functions within society.
My intention here however is not to trap appropriation art in a type of negative dialectic,
denying it its historical role as potential political agent. Nor do I wish to claim that imagining
ways in which appropriation art can engage the social and effect the factual world is a new
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proposition. How appropriation art functions in relation to the commodified mass-circulation of
signs was a central topic of discussion during the 1980s among the likes of Richard Bolton,
Douglas Crimp, Hal Foster, Craig Owens and Abigail Solomon-Godeau (among others), all of
whom are present in my analysis. My trajectory will build upon these writers, intertwining the
legacy of postmodernist critique of authorship and originality with shifts in copyright doctrine
from the time period, which I hope will help provide new perspective on the the manner in which
appropriation art and its critical discourse have been received and historicized. Moving away
from a poststructuralist critique of the author and towards one of institutionally managed modes
of authorship will help pinpoint how more recent legal battles over authorial control are being
waged, and what significance they hold for the future.
II. Postmodernism and the Discursive Formation of Appropriation Art
My analysis begins with first setting the discourse of appropriation art within the
historical conjuncture that many interpreted as a paradigmatic shift in modernity. The late 1970s
through to the early 80s was a period during which artists, art critics and cultural theorists in the
West were coming to terms with an emergent but elusive “postmodernism.” In a 1982 lecture
Frederic Jameson attempted a diagnosis of the phenomenon by stating that its modes of cultural
production differed from those of previous decades in that they increasingly blurred the
boundaries between high culture and more overtly commercial forms, problematizing, as Barbara
Kruger would wryly observe, the newspaper category “Arts and Leisure.”9
It was high culture’s insistence on a transcendental originality and authenticity that
postmodernist art would seek to problematize. Postmodernist art consequently often challenged
the value system of high modernism through the formal appropriation of its supposed antithesis:
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modernity’s visual culture––an ever expanding supply of repeatable signs whose actual authors
had become entangled within the web of production processes symptomatic of a thoroughly
industrially mediated social condition. And such appropriation often took place through the
mechanically reproductive processes of photography––the mass medium––which, since its
invention, had held a contested relationship with and thus remained on the peripheries of the
traditional fine arts.
The conflation of high art and commercial signs within appropriation based practices
likewise triggered a shift in the mode of interpretation of the work of art from a modernist
approach that had privileged the formal and expressive qualities of a subjective totality to a
postmodernist one that emphasized the discursive and allegorical qualities of fragmentation and
desire. The use of appropriated photography, which “Encod[es] two contents in one form,”10
seemed particularly suited to the allegorical, precisely because of the photograph’s inherent
indexicality, its depiction of content once removed, its status “Always [as] a representation,
always-already-seen.”11 In this sense the allegorical reading of appropriation art was premised
upon a deferment of authentic determination.
Such deferment does have negative political consequences, however. Postmodern
allegory can, through a multiplicity of contents (i.e., signifieds, or conversely, what Baudrillard
termed “floating signifiers”), frustrate a sense of historicity and therefore any critical pursuit that
depends on historical consciousness. Hal Foster described this allegorical multiplicity
as
“eclectic historicism,” a cherry-picking from the cultural past and present that reduced the work
of art to stylistic pluralism and consequently betrayed neoconservative tendencies. This strain of
postmodernism actually retained the modernist preoccupation with originality and authenticity,
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“In which the denial of historicity is mistaken for transcendence, and in which the corrosive
effects of time are disavowed by allusion to canonical sources.”12
Countering a neoconservative version of postmodernist, art critics theorized its
poststructuralist counterpart, a practice linked to the French theory of the same name and the
rhetoric of “the death of man” as the “centered subject of representation and history.”13 As
opposed to the embrace of a new pluralist humanism, “poststructuralist” art was thought to
expose its own cultural encoding, using photo and video imagery appropriated from mass culture
as “both a target and a weapon.”14 The appropriation of a usually singular, indexical (i.e.,
“natural”) image supplemented its signification and any originary meanings it might have
connoted with critical reevaluation of, to cite Craig Owens, “the degree to which “nature” is
always already implicated in a system of cultural values which assigns it a specific, culturally
determined position.”15 It is this type of poststructuralist appropriation art, exemplified in
Richard Prince’s Untitled (cowboy) and Sherrie Levine’s Untitled (After Edward Weston) series
of works––works that in their direct and almost totally unmediated taking seem to pose the most
questions about creativity, originality and the law––that shall be my focus going forward.
Those practitioners affiliated with late ‘70s and early ‘80s appropriation art in New York
are occasionally referred to as “Pictures” artists, after the exhibition Pictures that Douglas Crimp
curated at Soho’s Artists Space in the Fall of 1977.16 Rather than maintain the exhibition as a
founding moment however, I would like instead to situate the beginnings of postmodern
appropriation within the context of legal history, linking it to an event that preceded Pictures by a
year: the passing of the Copyright Act of 1976. Doing so will enlarge appropriation art’s social,
economic and political framing, which in turn can assist in more thoroughly analyzing the
poststructuralist moment within which appropriation art has been historicized.
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III. The Copyright Act of 1976 and the Effacement of the Author
On October 19, 1976, President Ford signed into law the first major revision of United
States copyright since 1909.17 The Copyright Act of 1976 confronted a number of author’s rights
issues, including those relating to the technological advances that had occurred since the
beginning of the twentieth century. Addressing the accelerated manner in which cultural works
were being produced and then reproduced, enhanced definitions (pertaining to, for example,
electronic music, filmstrips, and computer programs) as well as measures not previously codified
were included in the new legislation.18
Since its enactment, the Copyright Act of 1976 has generated a fair amount of criticism.
At issue has been determining how far author’s rights should be extended before they encroach
upon fundamental freedom of speech rights. On the one hand, granting overly controlling rights
to authors is seen as detrimental to the common good; subjects, denied permission to reshape
existing cultural materials, are rendered passive consumers rather than active citizens. One the
other hand, curtailing author’s rights for the benefit of the public eliminates the incentive to
create in the first place; in theory, authors won’t produce when they don’t stand to gain
financially from work that anyone may use freely, which stagnates progress in the long-term.
The 1976 Act seemingly expanded authorial rights in several ways. One of the first
changes was the redefining of what sorts of expression qualified for protection. An allencompassing definition, “original works of authorship fixed in any tangible medium of
expression, now known or later developed” was introduced.19 This placed copyright at the act of
fixation, not publication, as previous versions of the law had stipulated, meaning works no longer
had to be registered. Language that defined copyright qualitatively was also avoided. The law
extended copyright protection to an almost unlimited range of activities, granting the power of
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authorship to new generations of experimenters whose only requirement was that they be
“original.”20
Yet even as the copyrighted work was left qualitatively undefined, its lifespan as a
cultural product was augmented quantitatively. Term length of protection increased from a fixed
year period––previously twenty-eight years with an additional twenty-eight year renewal
option––to life of the author plus fifty years.21 Finally, another change to the Act included the
authorial control over derivative works, those that are “recast, transformed, or adapted”22 from
the original. Authors were granted protection not only over expressions created in the present,
but also “variations on a theme” possibly made in the future.23
The apparent expansion of authorial rights in the 1976 Act and its emphasis on originality
stem from what some legal scholars identify as the law’s deferential treatment of the “romantic
author,”24 a figure constructed towards the end of the eighteenth century when European social
orders were being upended, thus allowing alternative systems of cultural production to develop.25
However, through a series of court rulings both in England and the United States crossing over
the eighteenth to nineteenth centuries, the change in scope over what constituted an author’s
“work” had the long-term consequence of shifting copyright’s emphasis away from authorial
intentionality and towards formalist analyses of the creations themselves.26 Even as copyright
law uncritically embraced a rhetoric of authorial originality, it nevertheless mitigated its novel or
innovative aspects in favor of recognizing the author merely as the work’s point of origin.
Meanwhile, the components that made up the work were disaggregated and subjected to judicial
interrogation in order to determine their degree of derivation––which elements of the romantic
author’s “total vision” were in fact “original,” and which elements were not.27 In the modern era
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and especially given the proliferation of mechanical reproduction, the work displaced the author
as the central determining character in copyright doctrine.
If subordination of the author to the work is acknowledged, then the expansion of rights
in the 1976 Copyright Act indicates, as Marci Hamilton suggests, not deference to but disdain for
the romantic image of the author.28 Expanded author’s rights, while appearing to champion an
antiquated figure from the cultural past, acted as a foil for copyright’s actual purpose: providing
the means for a fluid and expanding intellectual property market in a post-industrial economy.
One clause in particular suggests an effacement of the romantic author more than any other: that
is work-made-for-hire.29 Mentioned only in passing in 1909,30 work-made-for-hire was given a
thorough treatment in the 1976 revision, providing legal buttressing for a twentieth century
economic structure already dependent on the division of labor. Far from facilitating a romantic
conception of authorship, copyright’s work-made-for-hire doctrine seized control of individual
agency, returning the author to his or her place as a “just another cog in the wheel” in the
fabrication processes of a postmodern culture industry. Work-made-for-hire had essentially
become corporate copyright. In some respects then, the “death of the author” proclaimed by
poststructuralism and allegorized in appropriation art had already become reality in American
copyright law. I return now to the early careers of Richard Prince and Sherrie Levine, given the
1976 Act‘s effacement of the romantic author.
IV. Appropriation Art Re-centers the Author-Subject
It is important to recall that both Levine’s and Prince’s early appropriations were lifted
from what were already reproductions––reproductions that had performed the meaning-making
role the two artists were simply rendering transparent. Levine’s appropriation of reproductions of
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Edward Weston photographs pointed to the fact that they, despite being “unoriginal” halftone
copies, were nonetheless mass circulating as representative of Weston’s original vision,
reaffirming his place within the canon of modernist photography in the process. And Prince’s
appropriation of reproductions of cowboy images from Marlboro advertising campaigns made
plain the notion that images many times removed from their source were being employed in the
service of reifying an authentic western subject essential to American ideology. In short, Levine’s
and Prince’s use of appropriated material starkly asserted that within a postmodern condition, the
author had become irrelevant because the original gesture had become unnecessary; the copy
adequately stood in its place and performed its legitimizing function.
While it is very doubtful Levine and Prince intended their works as direct rebuttals to the
1976 Copyright Act––if for no other reason than the law had only been in effect a short time
before their careers really began––they can nonetheless also be read as “preemptive strikes”
against the legal construction of authorship. More than pointing to the loss of determinate social
meaning, Levine’s and Prince’s works allegorized the impossibility of authorship outside the
paradigm of the derivative work sanctioned through copyright law. Perhaps Benjamin Buchloh
comes closest in acknowledging appropriation art’s allegorization of the derivative nature of
cultural production. “In the splintering of signifier and signified,” he writes, “the allegorist
subjects the sign to the same division of functions that the object has undergone in its
transformation into a commodity. The repetition of the original act of depletion and the new
attribution of meaning redeems the object.”31 Levine’s and Prince’s appropriations thus de-center
the author-subject within a humanities-based discourse of original genius as well as destabilize a
legal-economic regime that assigns authority to a vague notion of originality. Yet for the latter
critique to be given currency, it must assume a centered author-subject under the law. Here
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Buchloh’s “division of functions” subtly points to the opposite, for what is implied in the sign’s
fragmentation is a productive apparatus premised on a division of labor, the very condition
afforded protection by copyright law through its work-made-for-hire clause.
Read through the lens of copyright’s de-individuation of the author, Levine’s and Prince’s
gestures invite a reading at odds with a poststructuralist critique. Rather than undermining any
romantic notion of authorial originality in a culture of the copy, the works reasserted the very
productive core of the romantic authorial mode––one premised on the author’s singular
ownership of the work through his or her labor. In Lockean terms, Levine and Prince acted upon
the mass-media environment around them, defiantly re-centering themselves as possessive
individuals,32 as the authorities over their expressions against an impersonal productive apparatus
churning out derivative commodities whose actual creators could not be readily traced. The
degree of aesthetic novelty becomes superfluous; Levine and Prince merely employed those
processes familiar to the nameless technicians working in the creative industries: cutting,
cropping, enlarging, editing, printing. What is novel is that, through mixing their labor with their
surroundings “in the radical formulation that [the artists preferred]” as Martha Woodmansee
asserts,33 Levine and Prince took individual control of the mass-authored image, however
derivative it might have been, and in so doing, reaffirmed the ground upon which the romantic
author stands.
Levine’s and Prince’s provocations should have invoked the wrath of the appropriated
images’ copyright holders. And yet exhibition of the artist’s “rephotographs” was permitted.
Eventually, Levine and Prince, whose works appeared the most antagonistic towards prevailing
social and legal conventions of authorship, were to be validated as authors par excellence by an
institution of art that had never been entirely convinced of the so-called death of the author, and
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one that could provide a “second tier” of lax copyright regulation for the artists, in the name of
“culture.”
Indeed, in the years following Prince’s Untitled (cowboy) and Levine’s Untitled (After
Edward Weston) series, the Pictures movement was subsumed under the rhetoric of the uniquely
creative individual associated with romantic authorship. Fast-forwarding thirty years to Prince’s
retrospective Spiritual America at New York’s Guggenheim Museum, the full extent of Prince’s
celebration as a romantic author is evident. In the opening pages of the exhibition’s catalog,
Prince is described as an artist who
Makes it new by making it again. Although his photographs, paintings, drawings and sculptures
are primarily appropriated and recycled from popular culture, they convey a deeply personal
vision. His selection of mediums and subject matter, as well as the cropping, editing, and
sequencing of images, suggest a uniquely individual logic…with wit and an idiosyncratic eye,
Richard Prince has that rare ability to analyze and translate contemporary experience in new and
unexpected ways.34
It is important to note that this introduction was penned by a chief executive of Deutsche
Bank, the show’s major sponsor, for corporate interest in the arts has played a pivotal role in
maintaining the artist as a romantic figure. Corporations have used the artist as a public relations
tool to both align themselves with the progressive, humanist values associated with art and reach
new consumer groups.35 The romantic artist is naturally attractive for the corporation, because he
or she embodies the same ethos that drives free market commerce: what Richard Bolton calls
“enlightened self-interest.”36
Recognizing the motives corporations have in aligning themselves with even critical art
that appears to conflict with their interests may at least partly explain how Prince was able to
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evade any legal skirmishes over his Untitled (cowboy) prints. It should be remembered that the
series was appropriated entirely from advertisements of Marlboro cigarettes. Phillip Morris USA
owns the Marlboro brand, and, more importantly, the copyrights to Prince’s cowboy images.
Their tacit approval of Prince’s appropriations might have contradicted the maximum control
logic indicative of intellectual property, but perhaps Philip Morris’ desire to associate itself with
artistic innovation outweighed its own commitment to brand management. Or perhaps allowing
Prince’s free reign over Marlboro’s cowboys was precisely part of its branding strategy; after all,
its products gained free advertising, and its corporate image was enhanced, something especially
important for a tobacco company with a less than stellar public reputation.37
Yet there is still a character unaccounted for. In the case of Untitled (cowboy) from 1999
it was photographer Jim Krantz who, as a work-made-for-hire employee, actually took the photo
for Phillip Morris. In Prince’s singular authorial control over the mass produced image, he
becomes Krantz’s surrogate, the self-possessive author Krantz cannot be; this however can only
provide cold comfort, for Prince has never acknowledged Krantz, who has been replaced twice
over now as the author of the photograph. And finally, under Prince’s control, the image travelled
full-circle; advertising-became-art-became-advertising, when the same Krantz image lined
Manhattan streets in posters and banners that promoted Prince’s exhibit. [PLATE 3]38
Levine’s Untitled (After Edward Weston) series has had no less help from institutional
para-regulation. Levine’s appropriation of Weston’s 1925 images of his son Neil was perhaps a
riskier challenge to copyright, for she was taking from her own domain of art––from a canonized
figure in modernist photography. Her claim to the images would have pitted Levine’s First
Amendment rights directly against Weston’s copyrights. And such a case could have been a
possibility; Levine’s exhibition of the work in 1980 caught the attention of the Weston estate,
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who contacted her. The details are vague, but by 1981 Levine had moved on to appropriating the
work of Walker Evans, whose photographs during the Great Depression were government owned
and thus in the public domain.39
1981 was also the year that Edward Weston’s archive and copyrights were sold to the
Center for Creative Photography at the University of Arizona. As an educational institution, the
Center spends “a lot of time encouraging fair use, discouraging censorship, and preserving the
work of artists such as Weston so that they can be appreciated by generations to come.”40 It is
aware of Levine’s practice, but has, like Phillip Morris with its Marlboro images, given tacit
approval of them. In addressing the limits of appropriation, Amy Rule, Head Archivist at the
Center, writes, “We might go after someone using [Weston’s] images to sell laundry soap, but I
doubt that we would try to stop an artist’s exploration of legitimate aesthetic issues.”41 The logic
contained in such a statement prefigures appropriation’s restriction to the domain of “culture;”
while it is not that appropriation art can’t be used to sell, as Prince’s poster and banners
demonstrate, it is limited to selling itself, as a concept of art, as a concept of transgression that
can only ultimately be experienced in the imaginary realm provided by affirmative culture. “To
pose real trouble for the author in copyright doctrine,” scholar Jane Gaines concludes, “Sherrie
Levine would have to reproduce her own copies of Edward Weston as postcards and then sell
them––the stiffest test of “free commercial speech.””42
V. Conclusion
I conclude here with another quote from Jane Gaines. Writing in 1991, she laments, “As
yet, we have too few ethnographies of the use of popular icons in their travel from the avantgarde to the popular and back again…it would be a mistake…to look to the law instead of to use
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and custom as the primary indication of how ideological domains are configured.”43 This text has
been my attempt at just such a study, however incomplete it may be. In it, I have tried to look to
custom, use and the law, analyzing the parallel histories of appropriation strategies in art and
copyright law’s transformation since the late 1970s and the ways each approached the
construction of authorship. Setting Richard Prince’s and Sherrie Levine’s early work against the
revisions of the Copyright Act of 1976, I have attempted to link the postmodern avant-garde to a
reassertion of the author-subject, even as the discourse that enveloped the Pictures movement at
the time nurtured a critique of originality and authenticity. What I find remarkable in examining
the period’s criticism is its insistence upon the superiority of the “poststructuralist” variant of
appropriation art, given that from the vantage of the present its recuperation seemed inevitable.
Yet in the age of YouTube, the “remix” collage format––what Hal Foster might label
“neoconservative”––has become one of the intellectual property flash points in the struggle over
the reins of production, as new generations of technologically savvy producers enter (at their
own legal risk) the domain of cut-and-paste aesthetics. Appropriation art’s attenuation as a critical project by the late 1980s can be
understood as part of the cyclical nature of cultural production under capitalism, characterized
by the recognition and institutionalization of resistance in the service of hegemony’s
maintenance. If appropriation in modernism was marked by transgression, and in postmodernism
by resistance, perhaps we have entered a new stage, a “postmodernism 2.0,” one marked by
appropriation as tactical intervention, which I explore in the next chapter.
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[PLATE 1]
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[PLATE 2]
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[PLATE 3]
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Notes
1. Reports of copyright and trademark infringement lawsuits abound in the mass media, and scholarly texts that provide
case studies are plentiful. Just a few over the last two decades include Jane Gaines, Contested Culture: The Image, the
Voice, and the Law (Chapel Hill: University of North Carolina Press, 1991); Rosemary J. Coombe, The Cultural Life
of Intellectual Properties: Authorship, Appropriation, and the Law (Durham: Duke University Press, 1998); Siva
Vaidhyanathan, Copyrights and Copywrongs (New York: New York University Press, 2001); Lawrence Lessig, Free
Culture: The Nature and Future of Creativity (New York: Penguin Books, 2005).
2. Martha Buskirk, The Contingent Object of Contemporary Art (Cambridge, Mass.: MIT Press, 2003), 61. Buskirk
mentions that at various points both Andy Warhol and Robert Rauschenberg were threatened with litigation for
copyright infringement, but settled out of court. Examples like these certainly merit further investigation, which at the
very least may provide for critical reassessment of the “subversive” nature of each artist’s work. Even still, I want to
argue that the number and and general knowledge of cases such as these, as well as those such as Jeff Koons’s “String
of Puppies” case––which was actually tried in court––haven’t had a proportionate effect on artistic praxis when
compared to other types of cultural producers (e.g., musicians, documentary filmmakers, writers) who submit to the
threat of punishment for copyright violation and thus often preemptively self-censor.
3. Randy Kennedy, “If the Copy Is an Artwork, Then What’s the Original?,” New York Times, December 6, 2007.
4. Peter Bürger, Theory of the Avant-Garde (Minneapolis: University of Minnesota Press, 1984), 60.
5. On the legacy of conceptual art forming the foundation of postmodernism, which I correlate with appropriation art,
see Michael Newman, “Revising Modernism, Representing Postmodernism: Critical Discourses of the Visual Arts,”
in Lisa Appignanesi and Geoffrey Bennington, Postmodernism: ICA Documents (London: Free Association Books,
1989), 111.
6. An argument could be made that artistic appropriation is not illegal, because it is protected under the doctrine of fair
use as defined in the current copyright law. Fair use is intended to exempt from infringement creative expressions
whose purposes are: criticism, commentary, news reporting, teaching, scholarship, or research. To what extent,
however, art falls within these categories is a matter of interpretation. Fair use is an “affirmative defense,” not a right;
the burden of proving fair use falls on the defendant. Reaching such a stage already assumes an artist has the means to
defend a copyright infringement allegation. Thus fair use does not grant immunity; bluntly speaking, it merely grants
the opportunity to spend a lot of money on lawyers to argue immunity, which may be denied, as Jeff Koons found out
in the lawsuits resulting from his 1988 “Banality” show. See Buskirk, The Contingent Object of Contemporary Art,
91-94. On fair use being as affirmative defense, see the Supreme Court decision Campbell v. Acuff-Rose Music, Inc.,
(92-1292), 510 U.S. 569 (1994), http://www.law.cornell.edu/supct/html/92-1292.ZC.html (accessed February 1,
2009).
7. Marci Hamilton, “Appropriation Art and the Imminent Decline in Authorial Control Over Copyrighted Works,”
Journal of the Copyright Society of the USA (Winter 1994): 101.
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8. Herbert Marcuse, Negations: Essays in Critical Theory (Boston: Beacon Press, 1968), 114-115.
9. Frederic Jameson, “Postmodernism and Consumer Society,” in Foster, The Anti-Aesthetic, 127-129. On the
problematics of what constitutes “art” and “leisure,” see Barbara Kruger, Remote Control: Power, Cultures, and the
World of Appearances (Cambridge, Mass.: MIT Press, 1993), 3.
10. Crimp, “The Photographic Activity of Postmodernism,” On the Museum's Ruins, 118.
11. Ibid., 119.
12. Hal Foster, “(Post)modern Polemics,” in Recodings: Art, Spectacle, Cultural Politics (Port Townsend, Wash.: Bay
Press, 1985), 124.
13. Ibid., 121. On the de-centering of the author-subject, see also Michel Foucault, “What is an Author?” in Language,
Counter-Memory, Practice: Selected Essays and Interviews (Ithaca, N.Y.: Cornell University Press, 1980); Roland
Barthes, “The Death of the Author,” in Image, Music, Text (New York: Noonday Press, 1988). The degree with which
“postmodern” art is joined with poststructuralist theory is open for debate: it is difficult to determine how much
appropriation artists at the time were directly influenced by poststucturalism, and how much of the theory was
overlaid onto the work by critics and historians. In the case of Sherrie Levine, it’s safe to say she was indebted to
poststucturalism and used it in the formulation of her work. For an exhibition in 1981 she appropriated segments of
Barthes’ “Death of the Author” text for use as an artist statement (substituting “painter” for the word “author”); she is
further reported to have been an avid reader of the then newly formed journal October, which often relied on
poststructuralist theory: “Levine read back issues avidly…and also books by…Jacques Derrida, Roland Barthes,
Michel Foucault––whom October occasionally published or, more frequently, cited in footnotes.” On Levine’s
appropriations of Barthes, see Sherrie Levine, “Five Comments,” in Brian Wallis, Blasted Allegories: An Anthology of
Writings by Contemporary Artists (New York; Cambridge, Mass.: New Museum of Contemporary Art; MIT Press,
1995), 92. On Levine’s October reading, see Gerald Marzorati, “Art in the (Re)Making,” ARTnews 85, no. 5 (May
1985): 96.
14. Foster, “Subversive Signs,” Recodings, 100.
15. Craig Owens, “The Allegorical Impulse, Part 2,” in Beyond Recognition: Representation, Power, and Culture
(Berkeley: University of California Press, 1992), 74.
16. Sherrie Levine participated in Pictures; Richard Prince was not part of the show. He as well as other artists not
involved have nevertheless at times been categorized as “Pictures” artists in consideration of their mode of production
at the time––photographic appropriation. See Douglas Crimp’s modified catalog text, “Pictures,” October Spring
(1979): 75. See also the catalog to the recent survey show at the Metropolitan Museum of Art, which includes both
Levine and Prince: Douglas Eklund and Metropolitan Museum of Art, The Pictures Generation, 1974-1984 (New
York; New Haven: Metropolitan Museum of Art; Distributed by Yale University Press, 2009).
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17. See “Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code,” http://
www.copyright.gov/title17/circ92.pdf (accessed January 10, 2009). While it has been occasionally modified over the
past forty years, the 1976 Act remains the general framework for current U.S. copyright law. Substantial additions
include the Sonny Bono Copyright Term Extension Act and the the Digital Millennium Copyright Act, both from
1998.
18. Ibid.
19. U.S. Code Title 17, Section 102, http://www.copyright.gov/title17/circ92.pdf (accessed January 20, 2009).
20. As legal scholar Alfred Yen points out, jurisprudence pertaining to creative expression attempts to avoid making
qualitative decisions, with varying degrees of success. Yen argues that any legal judgements involving aesthetics
inevitably succumb to judgements of taste; on occasion, judges play the role of art historian or critic, just as they
sometimes play the role of economist in antitrust lawsuits. See Alfred C. Yen, “Copyright Opinions and Aesthetic
Theory,” Southern California Law Review, Vol. 71 (1998 ): 247-302.
21. U.S. Code Title 17, Section 302, http://www.copyright.gov/title17/circ92.pdf (accessed March 10, 2009). The current
term is life of the author plus seventy years.
22. U.S. Code Title 17, Section 106, http://www.copyright.gov/title17/circ92.pdf (accessed March 10, 2009). See also
“Historical and Revision Notes,” House Report No. 94-1476, Title 17, Section 106, http://uscode.house.gov/
download/pls/Title_17.txt (accessed March 9, 2009).
23. With the derivative clause, we can immediately see the problems appropriation art faces.
24. Scholars have stated that until the 1990s, copyright jurisprudence has taken the romantic figure of the author as
“given” rather than as a construct in part because the law has avoided delving into matters that involve making
subjective decisions (i.e., aesthetic judgements of taste). See Peter Jaszi, “Toward a Theory of Copyright: The
Metamorphoses of “Authorship”,” Duke Law Journal, Vol. 1991, No. 2 (April 1991): 457-560.
25. On the transformation of the author in Enlightenment Europe, see Martha Woodmansee, “The Genius and the
Copyright: Economic and Legal Conditions of the Emergence of the 'Author',” Eighteenth-Century Studies, Vol. 17,
No. 4, Special Issue: The Printed Word in the Eighteenth Century. (Summer, 1984): 425-448.
26. Jaszi, “Toward a Theory of Copyright,” 473-474. Jaszi’s examples of English and American lawsuits from the
eighteenth and nineteenth centuries demonstrate how court judgements initially favored defendants who were not
merely copying existing works wholesale but rather altering them in varying degrees (e.g., translations, abridged
editions, etc.). This changed over time, and by the mid-nineteenth century in the United States, the author’s property
rights in the “work” extended beyond the specific text in question to include derivatives that were “substantially
similar” to the original.
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27. As Marci Hamilton notes, legal disputes involving secondary works potentially infringing on existing ones has
necessarily involved dissecting “every text into its constituent parts: ideas, facts, unoriginal expression, public domain
material, pre-existing copyrighted material, and finally original expression.” Marci Hamilton, “Appropriation Art and
the Imminent Decline in Authorial Control over Copyrighted Works,” Journal of the Copyright Society of the USA 42
(Winter 1994): 104.
28. Ibid., 102.
29. It could be argued that the fair use doctrine, itself federally codified for the first time in the 1976 Act, also
compromises the “total vision” of the romantic author significantly by setting up a legal mechanism that allows
secondary authors to incorporate elements of existing (protected) work, such as in the case of appropriation art. While
not a guarantee, fair use has allowed for the legitimate reuse of certain “original” works of authorship. As Marci
Hamilton points out, the process of legitimation would entail a work-centric view of copyright, in which the
“original” elements of both the existing and secondary work would be singled out and scrutinized in order to
determine any infringement, therefore privileging a formalist analysis of the work rather than an intentionalist
analysis of the authors. Yet as James Boyle notes, even if the concept of fair use might seem to challenge the primacy
of the author, it actually perpetuates the romantic authorship paradigm by requiring any fair uses to show their
“transformative” qualities. In other words, the authors in question must show the extent to which they make
something original out of a process of derivation, or as Boyle states, “Authors may only be trumped by other
authors.” James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society
(Cambridge, Mass.; London: Harvard University Press, 1996), 131.
30. The Copyright Act of 1909 included sixty-four sections; in the last sentence of the sixty-second, it states merely “…
and the word “author” shall include an employer in the case of works made for hire.” No further details are given. See
the Copyright Act of 1909, http://www.copyright.gov/history/1909act.pdf (accessed March 20, 2009).
31. Benjamin Buchloh, "Allegorical Procedures: Appropriation and Montage in Contemporary Art," Artforum
(September 1982): 43-56.
32. On Locke and possessive individualism, see C. B. Macpherson, The Political Theory of Possessive Individualism:
Hobbes to Locke (Oxford: Clarendon Press, 1962).
33. Woodmansee, “The Genius and the Copyright,” 430.
34. Seth Waugh, Sponsor’s Statement, in Nancy Spector and Richard Prince, Solomon R. Guggenheim Museum, Walker
Art Center, and Serpentine Gallery, Richard Prince (New York: Guggenheim Museum, 2007).
35. On the development of corporate arts funding in the 1980s in the United States and the United Kingdom in the
Reagan/Thatcher era, see Chin-Tao Wu, Privatising Culture: Corporate Art Intervention since the 1980s (London;
New York: Verso, 2002.
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36. Richard Bolton, “Enlightened Self-Interest: The Avant-Garde in the ‘80s,” in Grant Kester, Art, Activism, and
Oppositionality: Essays from Afterimage (Durham NC: Duke University Press, 1998), 30.
37. Part of corporate image enhancement includes direct financial support of the museum. Phillip Morris, now the Altria
Group, continues to be one of the Guggenheim’s major corporate donors. See the Guggenheim Foundation’s 2008
Annual Report, http://www.guggenheim.org/images/content/pdf/education/2010/new_york_2008.pdf (accessed March
25, 2010).
38. Kennedy, “If the Copy Is an Artwork, Then What’s the Original?.”
39. In a 1986 ArtNews interview with Sherrie Levine, Gerald Marzorati writes, “When Lawyers from the Weston
estate…suggested the courts might be the proper venue to settle this epistemological argument [over whether Levine
was copying Weston, or whether Weston was “copying” classic sculpture].” Attempts to clear up the nature of any
legal threats by the Weston estate with Sherrie Levine were unsuccessful, with her gallery stating that Levine’s
schedule didn’t allow her time to answer my questions. E-mail correspondence with Ona Nowina-Sapinski, Paula
Cooper Gallery, January 29, 2009.
40. E-mail correspondence with Amy Rule, Head of Research, Center for Creative Photography, December 12, 2008.
41. Ibid.
42. Jane Gaines, Contested Culture: The Image, the Voice, and the Law (Chapel Hill: University of North Carolina Press,
1991), 236.
43. Ibid., 237.
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