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 Italy
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