The purpose of Okpaluba’s article is to help readers understand the concept of “appropriation art”. The re-use of pre-existing materials for the use of creating new forms of art is the basic premise of appropriation art (Okpaluba, p197). The main threat this poses to copyright law is the fact that it would be difficult to enforce infringement law on such material. The author points out that the main difficulty appropriation artists’ face is the difficulty in whose rights come first – the author or the user because users recreate cultural products with access to protected copyright works (Okpaluba, p197).
The central question Okpaluba seeks to address is how we define the legal interest of a copyright owner in his work. Okpaluba discusses the concept of the ‘fair use doctrine’, and in doing so outlines three methods in which the United Sates and the United Kingdom excuse copyright infringement: 1) original work is not subject to protection; 2) the defendant did not make a “copy”; 3) the use of copied material falls within the exemption (Okpaluba, p198).
Continuing in support of appropriation art, Okpaluba illustrates how users can win infringement cases because appropriation art serves as a valid function and as a means of creation and social criticism; this function allows artists to divulge a reaction from the public and interpret different meanings of cultural icons (Okpaluba, p198). Appropriation art has always existed throughout history and serves as a means of creating new forms of expression.
The incorporation of other works has become mainstream and commonplace because everything has been done before, and appropriation art is a modern expression through recycled materials and ideas – hence, copyright law cannot accommodate expression because it is never authentic (Okpaluba, p200). There are three forms of appropriation: 1) using exact, protected images; 2) a collection of several sources to compile a new work; 3) use of an entire, general genre (Okpaluba, p200). The author examines several cases throughout his article to identify different methods of appropriation art.
Alternative readings of the work are utilized to dismiss copyright infringement, and it is this premise which protects artists like Sherrie Levine who used other works in her art to essentially celebrate their works – this is the essence of post-modern thinking, which dismisses claims of plagiarism (Okpaluba, p201). The first case he examines is Beebe and Rauschenberg, which looks at the misuse of an image without giving credit. The claimant wins in this case because the use of his art did not fall within the guidelines of the fair use doctrine (Okpaluba, p201).
The next case examined is Koons and the use of a copyright image as a muse for another author’s artistic sculpture. This case examines the benefit a transformative piece of art has on the public, as well as the effects on the original authors market once a piece of art goes into production. If the appropriation artist had intent to make profit on a copyrighted work afforded to them through fair use, this constitutes infringement (Okpaluba, 205). Every fair use is a potential loss to the authentic owner (Okpaluba, p212).
Unfair use is essentially when work is used to prejudice the legitimate interests of an author. The use of work to convey the same ideas is inherently unfair, according to the decision reached in Hubbard vs. Vosper (Okpaluba, p207). Another case examined is that of the band “2 Live Crew” and their use of another artist’s lyrics in their parodied song. The conclusion reached in this case was that the more transformative a work, the more protection an artist’s work receives under the fair use doctrine (Okpaluba, p209).
Okpaluba then looks at parodies and satire and aims to determine if such derivative works would cause market harm to original works. Derivative work could be protected if the original work’s market is insufficient (Okpaluba, p210). When the nature of an original work is creative, it would be subject to copyright protection. In examining licensing, Okpaluba suggests that this method of protection is disadvantageous to appropriation artists, in that there are higher costs associated with using specific pieces of a work (Okpaluba, p214).
He then offers the idea that collective administration (essentially negotiations between users and authors over the distribution of fees) makes it difficult to enforce licensing with appropriation artists (Okpaluba, p214). Okpaluba concludes by asserting the idea that modernist conceptions of artists as creators challenges post-modern practices, in the sense that modernist conceptions of art focus primarily on user access to works, whereby post-modernists protect the ability access to such works.
Nothing is completely authentic, and property laws constrain cultural advancement through transformative appropriation art. When looking at the works of Ross and Brown, we can question how, why, and whether intangible goods should be regulated by law. Okpaluba argues that nothing is ever authentic work and based on this idea, we can gather modernist conceptions of owner authenticity. In the case of artwork, it seems difficult to regulate the access and use of such pieces, according to Ross and Brown.
Modernist conceptions of access to artwork would argue that it is difficult to copyright and enforce infringement laws on such material that is the outcome of natural thought. Okpaluba focuses primarily on the use of “authentic” works in transformative methods. The use of Supreme Court cases in the UK and US helps illustrate different copyright enforcement methods used throughout the globe, and primarily accentuates the difficulty in regulating intangible goods.
Michael F. Brown. “Can Culture Be Copyrighted?” from Current Anthropology, Vol. 29, No. 2, University of Chicago Press, April 1998, 193-206.
Johnson Okpaluba. “Appropriation Art: Fair Use or Foul?” from Dear Images: Art, Copyright and Culture, Karsten Schubert & Daniel McClean, ed(s)., Ridinghouse, 2002, 197-224.
Trevor Ross. “Copyright and the Invention of Tradition” from Eighteenth Century Studies, Vol. 26, No. 1, The John Hopkins University Press, Autumn 1992, 1-27.