NO LONGER APPROPRIATE?

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 court to hear the case, ruled against Koons for using photographer Art Rogers’s postcard of a husband and wife holding a litter of puppies as the source material for the sculpture String of Puppies, 1988. Koons had sent the postcard to his fabricators in Italy with written instructions that the “work must be just like [the] photo”.

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