Sunday, March 23, 2008

Patry on Appropriation Art

Patry on Copyright
Database updated March 2008
William F. Patry
Chapter 10. The Fair Use Defense

Appropriation art poses very difficult problems for fair use, including whether it constitutes a comment, criticism, or parody.[FN1] The answer to that question is complicated in the case of appropriation art by its very essence, a conceptual statement, rather than a classic transformative use. Both artists and judges have very different about how appropriation fits into fair use: is it a well-recognized form of artistic expression, or is it piracy? In Rogers v. Koon,[FN2] as Judge Posner and Professor Landes have observed: "From the perspective of copyright law the very term "Appropriation Art" is a provocation; "appropriation" of a copyrighted works connotes stealing."[FN3] If art is in the eye of the beholder, such fair use appropriation art is even more so.

[FN1] See William Landes, Borrowed Images, and Appropriation Art: an Economic Approach, 9 Geo. Mason L. Rev. 1 (2000).

[FN2] Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).

[FN3] Landes and Posner, The Economic Structure of Intellectual Property Law, 261 (2003). See also Landes and Posner, The Economic Structure of Intellectual Property Law at 262-229. It should be noted that this is not Landes and Posner's own view; they believe the Koons case was incorrectly decided.

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