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Who's Afraid of Appropriation?

This is a post from the weareoca.com archive. Information contained within it may now be out of date.
The OCA’s Level 6 course on Professional Practice will, when its launched, have much to say about copyright. Ever since William Hogarth was instrumental in encouraging the formulation of the ‘Statute of Ann’(1710), writers, artists and musicians have had their creative work protected from theft and piracy. This Statute, the very first copyright law, protected them from having their work stolen, ‘to their very Detriment and too often to the Ruination of them and their families.’ The principal of an artists’ right to ownership of their work was firmly established from then on.
Except, of course,that protecting intellectual copyright seems to be an ongoing battle and the threats are getting worse now, with the advent of the Internet and the assumption by a younger generation that everything and anything found on the Web is free for all to take and use. In the realm of education, students are, of course, enjoined not to plagiarise, to acknowledge sources, to use the Harvard Referencing System and when taking images from the Bridgeman Education Resource, not to display it on publically accessible sites. These are the accepted rules, however some artists, especially those of a Dadaist persuasion, are particularly keen on the artistic concept of ‘appropriation’.
A long list of artists including luminaries such as Andy Warhol, Damian Hirst , Jeff Koons, Sherrie Levine, Glen Brown and Richard Prince , are particularly good at using other peoples images, without permission and have often ending up in court as a result. The defence of ‘fair use’ is often sited, a defence that depends on the amount of transformation that has occurred between the original and the new work. The works of photographers and film makers is the most appropriated these days and naturally they are particularly keen to protect their intellectual property rights, aware of the potential value of an image in a world hungry for novelty. There are now organisations that look out for copyright infringements and will prosecute on an artist’s behalf. For example,the case of Cariou v Prince is currently making its way through the courts. Patrick Cariou is a photographer who published a book on Rastafarian culture called ‘Yes Rasta ‘. Artist Richard Prince took 40 of his photographs, without permission, blew them up, stuck them on canvas and added some painted elements. Cariou took him to court because the transformative element in the paintings was considered minimal, and won the case. Richard Prince has appealed and when the result is made known it is expected to seriously affect the activities of such ‘appropriation’ artists and the galleries that show or sell their work.

This February, the Tate Modern will host a Roy Lichtenstein exhibition; he is an artist who consistently used comic book art as source material. This exhibition will be much loved by adolescence both old and young and those held in thrall to this popular form of imagery. This will be a major retrospective of his work showing not only his well know Pop Art paintings but also his later work which revisits 20th Century art styles from Post-Impressionism to Cubism to Abstract Expressionism all done in his signature style of black outlines filled in with bright colours and Ben Day dots. Although Roy Lichtenstein copied other artist’s creative work he never seemed to have been charged with copyright violation. At least 140 of his paintings were lifted from comic books (see David Basolou’s blog ‘Deconstructing Roy Lichtenstein’) and the names of the original artists such as Tony Abruzzo, Russ Jeath, Ross Andre, John Romita, Joe Kubert and Milt Kaniff are never credited. It may have been that in the early Sixties, the art world was a much smaller place with a different audience from that which read comic books. Commercial art was thought of as disposable and transient, with little intrinsic artistic value and the artists who drew the pictures or designed the packaging were often anonymous. High art was what serious artists did and Lichtenstein’s paintings at first did not sell for great sums of money, their future value not anticipated at the time. DC Comics who owned the copyright probably did not see any financial advantage in getting involved in a court case or did not think it advantageous to do so. It is also hard to understand why the Disney corporation did not object to Lichtenstein’s use of Mickey Mouse in his early (1961) painting ‘Mickey I’ve caught a big one’, currently in Washington’s National gallery of Art. These days the Disney Corporation jealously guards it intellectual property rights and artists stay well clear of Donald Duck, Mickey Mouse and his cartoon chums.
Is it not time that fine artists acknowledge the sources of their creative work especially when it is borrowed, stolen, lifted or in some other way ‘appropriated’ from a source not their own. And while they are at it should they not acknowledge the assistants who often make the work for them? I was going to illustrate this blog with a funny cartoon by Chris Madden but quite rightly he would expect a royalty to be paid for Internet usage and, as I doubt the OCA would fork out the cash, I drew my own instead, which I give free of charge with acknowledgement to Chris, who acknowledges Roy, who of course did not acknowledge the original creator Irv Novick (1916-2004).

Posted by author: Jim
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27 thoughts on “Who's Afraid of Appropriation?

  • This is a really interesting article thank you Jim.
    I agree that the artists should acknowledge the assistants who make the work for them, because often the artists have no input at all in making the pieces its just ‘their idea’.

  • The problem with accrediting assistants is where would it stop? Should you accredit the guys who cast your last bronze, or the people who frame your pictures, or the person who made the teapot in your last installation?
    I worry that copyright is beginning to be seen not so much as a protection of the artist from having their work stolen but as a means whereby large corporations and the wealthy institutions can extract extra income from their ‘assets’ not a few of which were obtained from photographers, portrait artists, ‘staffers’ and others whose copyright was never theirs until the ’88 act and in the case of staffers may still not be theirs.
    Unfortunately we live in litigious, neo-liberal days when we are encourages to exploit the price of everything and to value nothing (to appropriate Oscar Wilde).
    I hope that a time will soon come when sanity returns and the work of the creative will be properly rewarded but the laws that are intended to protect that reward will not be used to punish and stifle creativity.
    Perhaps I read too much Proudhon at an impressionable age but I always seem to come back to the question, “Who owns art?”

  • ‘The problem with accrediting assistants is where would it stop? Should you accredit the guys who cast your last bronze, or the people who frame your pictures, or the person who made the teapot in your last installation?’
    Well, yes…
    Thats the way its done in the Music and Film industry. I have a credit on a music album because the inspiration for writing a song was due to one of my photos, or more explicitly how I took one of my photos.
    I actually had a conversation one day about how big a font relative to other artists I required in a brochure for performing arts that contained my work.
    As you say, hopefully one day the work of the creative will be properly rewarded and that is every creative in the chain.

    • Interesting points everyone, but to pick up on Anned – your comment reminded me of a conversation I had with students about photographing people without really asking who they are – i.e. just using their form for the benefit of their images with knowing anything about who they are. This is probably digressing a bit too far. But remember Jean Baudrillard: “The magic of photography is that it is the object which does all the work.” ! [Sorry to bring things back to photography…]

      • It looks as though I was arguing with Joe there, but that was just a timing thing – I try not to argue with Joe as he’s so scary!
        The way I look at it is that you could argue that Lichtenstein was painting something in front of him (a comic) in a similar way to how he’d have painted a vase, so my comment was intended to be about subject matter and whether using the subject matter of an image is similar to using the subject matter of an object. It would be laughable to credit the manufacturer and designer of the vases in your still life painting (or your photograph unless it was an advertisement for them…)
        I have just submitted some work for assessment that uses appropriation – in it I have photographed an object that happens to be a photograph. But that was my intention, that the magic of the object (the photograph I photographed) did the work. Whether that would make Baudrillard happy or not I don’t know, and in many ways am getting almost totally past caring:-/
        (I own the image as it was made by a family member and have credited the estate of the family member in my work.)

  • I think that part of the problem is that we have copyright laws drawn up in pre-digital days and as yet we have not come up with a formulation that accurately reflects usage, legitimate or otherwise in these days of golbalised electronic and digital communication. There is the assumption that all ‘pirated’ material represents a loss of income to the copyright owner, there is the creation of a copyright in copies of uncoprighted material (eg a photograph of a painting that is itself out of copyright, or the publishing of a traditional tune) The assumption is not necessarily true and the creation of copyright in a copy rarely benefits the original maker, where there is or was one. On the other hand intellectual property needs protection from theft now just as much as in Hogarth’s day but being banned from reproducing an image of, say, a Leonardo painting because a gallery photographed it, probably for their own records initially and by a staff photographer working for wages and no copyright, and decided to post this in their website doesn’t seem anything more than profiteering as does not being able to, legally, make an MP3 copy of one of my CD’s top play on my ‘personal music device’ seems draconian.
    According to Picasso artists are thieves and long may it remain so, at least in the way he meant!

    • Maybe this is where the discussion needs to move away from the concept of COPYRIGHT as a form of protectionism to the newer, post-digital concept of COPYLEFT, which offers different models of ownership, availability and licensing.

      • Copyleft is a subset of Copyright.
        Without Copyright there would be no Copyleft.
        Copyleft is a subset license of the original which recognises attribution whilst still retaining other license streams.
        Copyleft is just a term used to describe a specific set of licensing conditions.
        People are often confused between Copyright and licensing. In the majority of cases (as here), the discussion is not about copyright, it is about licensing.
        The making a copy of a music track from vinyl to say mp3 isnt a copyright question per se. No one is questioning the copyright of the original owner, its just the license that is in dispute. When you bought vinyl, tape, cd then you owned a copy of the recording, you didnt own the recording or the rights to the recording or the rights to use it wherever you wanted (such as public broadcast, in promos etc). The license could easily be extended to a ‘home’ or ‘personal’ use license. That doesnt need any change to copyright laws, just the license agreement.
        When using mp3 download sites you dont actually own anything physically and are just renting the music format. Again just a form of licensing.
        If Price had licensed the images from Cariou then there wouldnt be a problem. Which brings us back nicely to the question of how simple acknowledgement would solve all those issues. Plus its just good manners if nothing else.

        • Well put Joe. It is easy to forget that most people are totally unfamiliar with the concepts that are wrapped up in copyright, reproduction rights and licensing.
          For the layman the issues raised are further clouded by the way that licensing has changed with the advent of digital production. In the ‘old days’ when one bought a book, record, CD, or DVD, one had a physical object that one felt, at least, one owned and one could dispose of as one wished (in fact there were some conditions like not changing the cover etc); digital licences seem unfair to most people in that one cannot sell or pass on the things that you consider you own because you don’t even buy a copy, but only a licence to use in a restricted way. It is this above all else that promotes the ‘piracy has no victims’ culture and when the measures taken by enormously rich corporations to prevent piracy make convenient usage at best difficult (I am thinking DRM here) it is difficult not to sympathise with this view.
          All this is far from the issue of appropriation art but unfortunately many of the piracy issues raise their heads when one erstwhile avant guard, libertarian artist decides to sue another, quite possible just because they can. And as for court action over the rounded corner….!

    • More confusingly for artists is the question of who owns the copyright of their artwork where it has been photographed and put the photograph of it put on the web.
      This is in no way a complaint…and I’m totally happy for my work to be used by the OCA. However a photograph of my artwork is on the OCA site and there is no credit given either to the photographer or me (the artist). In fact I’m happy not to be credited as it happens and I understand the OCA has the right to claim copyright over my work if done as a student. But it seems to me that we students can’t really win, we don’t have copyright over our own work, nor can we appropriate work without running the risk of being condemned for doing so.

      • I would hope that the OCA would provide attribution even if, by contract, they have the right to use – it would be and perhaps should be common decency. In the new courses there are a lot of images from photography students, they all have credits as far as I can see.

        • If you look on the OCA site you will see the images are unattributed. There might be data protection issues with attributing them? In any case as I said I was not complaining, just unhappy about double standards.
          I feel very strongly that context is important to understanding these kinds of issues on a case by case basis particularly in any kind of visual arts practise. Reducing “appropriation” to a straightforward black and white issue isn’t the way I’d chose to further my knowledge anyway. I find it harmful to my own art practise because of how people make assumptions without first looking at context in order to understand things better.

        • just to update this I’ve checked the wording – it appears we grant a license for oca to use our work, but retain copyright ouselves. Although as Peter says below the fact is that the copyright on photographs of artwork rests with the photographer not the artist, so bearing that in mind I might have been right the first time!

      • ‘ In fact I’m happy not to be credited as it happens and I understand the OCA has the right to claim copyright over my work if done as a student. But it seems to me that we students can’t really win’
        Which is my point entirely. Although copyright may reside elsewhere, artists should at least be credited.
        How else are you going to prove that your work was displayed in x, or that you assisted y in preparing work z.
        I credit all my assistants and if they help with productions or publications I make sure they are credited as assistants. They can use this in their portfolio if nothing else (say Im travelling and not available to provide a reference in the local time zone).

      • In the main at least, colleges do not own the copyright on their students’ work but do reserve the right to reproduce the work for their own purposes and usually credit the student.
        Unless there is some agreement to the contrary, the copyright on an image belongs to the maker of that image so when an artist makes, say, a painting, the copyright on that painting is hers. However if that painting is photographed, with or without their permission, the copyright on the photo belongs to the photographer. Now if the photographer posts that image on the web and I repost it in my blog I am infringing their copyright but whether either of us is infringing the copyright of the original artist needs testing in the courts…confused?
        Under the new legislation it seems that if a student uses part of a copyright image, or indeed a music sample, in a new, non-comercial composition, for example a book cover assignment, they are not in breach of copyright. However, if they publish the exercise on their blog (possibly even if it is a private blog) or in any other publication (and this might include such things as Dropbox though I think this has yet to be tested) then they are. Where e-mail fits into this is not clear to me.
        It is often said that the reason that breach of copyright on the web is pursued so assiduously is less the loss of income from the initial use (this is particularly so with most blogs) but the potential loss from repeated use from third parties and there is truth in this as many photographers make their fees based on the exclusivity of usage of their images by the particular client however I wonder what the reaction of most institutions would be if the image were rendered unusable by third party in any way? I suspect none! This is why I think that both for the protection of the artists rights and the freedom to create, the law need a root and branch re-writing in view of the digital world and to make distinction between the purely commercial world and the fine arts.

  • It’s a mine field. I worry that any time I put an image of a painting on the web that it will get used to create copies in far off places. An artist I know once saw work identical to her own, except perhaps a bit more sloppy, and being panned off with a Chinese artist’s name somewhere. What can you do about that?

  • I was interviewing a photographer who one day happened into a book shop in Buenos Aries and saw one of his photographs on the front cover of a book for sale in Spanish – he laughed.

  • I recently co-authored a book where each chapter, including one by a French philosopher on Matisse, required images of the artist’s work. The struggle to gain permissions and include just a few of these took over a year and the cost per image prohibitive. This was a university press publication where the authors were not paid and since publication, parts of my text have appeared in reviews, very slightly altered as though they are the reviewers’ words not mine (not credited). So in this particular case, one artist’s work, or rather a photographic document of that work, is protected (and someone, not the artist, makes money) but another artist’s work – in the form of words – is not (and again someone else, not the artist, makes money).

        • yes and if an ‘original’ work or idea is slightly altered by someone else before being resent into the world it is difficult to claim ownership, the new might be said to supplement the old, rather than replace it. I’m secretly quite pleased when people do this, because it means someone finds my work of value, but would prefer it if they were to ‘sur-name’ me too (a reference to Derrida’s ‘on the name’)

        • Particularly when the artists work for nothing!
          You dont need to instruct a barrister to sue in the UK for copyright infringement.
          Peter, you may not be aware but the copyright laws are constantly being updated and refined for various issues. For example the new fast track IP court has just been introduced, which should make it easier, quicker and cheaper to get IP judgements. I say should as its still in its infancy.
          The problem Linda would have in this scenario and I dont know all the details is proving loss. Particularly if you werent paid.
          Also it may be up to the publisher of the book depending on contract.
          There will also be issues in what she means by ‘reviewers’. Other reviewers of the same works or reviewers of the book. Thats a huge difference and copying of text may be allowed in one case and not in the other.
          One of the big issues I have is that quite often the educators of artists have no clue about copyright and so how do we expect artists to know? In the majority of cases the educators have little relevant working knowledge of IP and professional practise in general. This is, of course, to be expected but in more professional level courses and in the growing use of mixed media this can prove dangerous.
          I had an infringment last year from journalism students at a well known bricks and mortar university. They gave me the wikipedia defence. I wish I could just rely on wikipedia instead of paying specialist IP solicitors thousands!
          It took an exchange with their senior lecturer to have the issue resolved. They have now decided to include discussions on IP within the courses based on my interaction with them. Something I found staggering as in my own first degree (engineering) one of the modules in 2nd year was professional practise and one term was taken up with related law issues.
          It is good to see the OCA is doing similar.

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