Appropriation in Art: The Fair use doctrine and the Future of Contemporary Art

Abstract

“What has been will be again, what has been done will be done again; there is nothing new under the sun.” 
Many artists from the 20th and 21st centuries have engaged in the respectable and established art form of appropriation art. Because appropriation art utilizes previously created works as its subject matter, copyright law, which aims to facilitate access to original works, has had difficulty addressing this type of art. Practice of appropriation function by incorporating existing work of art into new art as a method of articulating new meaning. Social critique and commentary are common ways that this new meaning manifests itself. Appropriation art tends to fall under the category of infringement under copyright law since it is copied without the owner's consent. Over the years, there have been prominent infringement cases about whether a visual artist can use preexisting artwork from another artist for use in subsequent “appropriation art.” Different methods and conclusions about whether or not such appropriation can lead to fair use were represented in those rulings. However, the fair use defense's application is varied across copyright jurisprudence and does not reflect the evolving nature of contemporary art, particularly when it comes to transformative use. The problematic methods used by the courts when applying first factor of defense are examined in this study and concludes with a recommendation to reduce the extent of derivative rights and rebalance the fair use doctrine.