3. Appropriation Art
• Appropriation can be understood as "the
use of borrowed elements in the
creation of a new work.”
• In the visual arts, to appropriate means
to adopt, borrow, recycle or sample
aspects, or the entire form, of man-made
visual culture.
4. Appropriation Art
• “Good artists copy, great artists steal.”-Pablo Picasso
Velázquez, Las Meninas, 1656 Picasso, Las Meninas (after Velázquez) 1957
6. Copyright Law
• Intellectual property law is central to the American
legal system. It is granted in Article 1 Section 8 of the
Constitution.
• The goal of this protection is to “Promote the progress
of science and useful arts, by securing for limited times
to authors and inventors the exclusive rights to their
respective writings and discoveries”.
7. Copyright Extensions
Since the days of the founding fathers, the
‘limited times’ interpretation for copyrights has
been been greatly enlarged to now encompass
the life of the author plus 70 years. Many artists
and corporations use current copyright laws to
take legal action against
those whom they view as having infringed on
their intellectual property.
8.
9. Derivative Works & Fair Use
• An appropriated or “derivative work” is a work based
upon one or more preexisting works (17 U.S.C. 101)
• A derivative work need not be a violation of an
author’s copyright due to the fair use doctrine.
Elvis Mug Shot, 1970 Russell Young, 2006 Peter Blake, 2007Coca Cola logo
10. Fair Use
• Incorporated into the Copyright Act of 1976 17
U.S.C. 107.
• The fair use doctrine provides a balance between
protecting the interests of artists to control and profit
from their creations, and society which is meant to
gain from the promotion of ‘science and useful arts’ as
granted in the U.S. Constitution.
• “The fair-use doctrine mediates between the two sets
of interests, determining where each set of interests
ceases to control.” (Blanche v. Koons)
11. Fair Use
(17 U.S.C. 107) “Use of copyrighted material for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a
fair use the factors to be considered shall include:
1. The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the
copyrighted work.”
12. „Transformativeness‟
“…one of the factors used in
analyzing fair use is the "purpose
and character" of the use. In short,
is it transformative?”
(Hollywoodreporter.com)
13. Infringement or Fair Use?
Generally courts have said that a new work is not
an infringement of copyright as long as the new
work is considered ‘transformative’.
Internet Meme „Casually Pepper Spray Everything Cop‟
15. Judge Pierre Leval
‘Toward a Fair Use Standard’
(Harvard Law Review, 1990)
"Confusion has not been confined to
judges. Writers, historians, publishers,
and their legal advisers can only guess
and pray as to how courts will resolve
copyright disputes.”
16. Judge Pierre Leval
‘Toward a Fair Use Standard’
(Harvard Law Review, 1990)
“If the secondary use adds value to the
original—if the quoted matter is used as
raw material, transformed in the creation
of new information, new aesthetics, new
insights and understandings—this is the
very type of activity that the fair use
doctrine intends to protect for the
enrichment of society."
17. Folsom v. Marsh (1841)
“The inquiry focuses on whether the new
work merely supersedes the objects of the
original creation, or whether and to what
extent it is controversially
"transformative," altering the original with
new expression, meaning, or message.”
Case laid the foundation for the fair use doctrine.
18. Parody Is a form of
Transformativeness (Rogers v. Koons)
“Parody or satire, as we understand it, is when one
artist, for comic effect or social commentary, closely
imitates the style of another artist and in so doing
creates a new art work that makes ridiculous the
style and expression of the original.”
19. There Are Other Types of
Transformation (Perfect 10, Inc. v. Amazon.com,
Inc.)
“Google’s use of thumbnails is highly transformative.”
20. Perfect 10, Inc. v.
Amazon.com, Inc.
“We conclude that the significantly
transformative nature of Google’s search
engine, particularly in light of its public
benefit, outweighs Google’s superseding
and commercial uses of the thumbnails in
this case.”
21. Other Forms of
Transformativeness (Cariou v. Prince)
“Prince’s artworks manifest an entirely different aesthetic
from Cariou’s photographs. Where Cariou’s serene and
deliberately composed portraits and landscape
photographs depict the natural beauty of Rastafarians
and their surrounding environs, Prince’s crude and jarring
works, on the other hand, are hectic and provocative.”
22. Legal Constructs for Understanding
Transformativeness
• Considered useful art.
• Adds value to the original.
• New expression, meaning, or message
• Quoted matter used as raw material.
• Public benefit.
• Parody.
• Entirely different aesthetic.
23. Famous Artists &
Tranformativeness
Vincent Van Gogh did studies of other artist’s works, and
appropriation art has been used by other famous artists
such as Pablo Picasso and Andy Warhol. Would these be
considered ‘transformative enough’ or would they be
copyright infringement? Are famous artists given more
leeway?
Van Gogh, 1889 Warhol, 1968Millet, 1850 Campbell‟s Soup Can
24. Are These Legally
Transformative?
• These derivative works have added to the artistic richness of
society. They have had impacts on presidential elections, and they
sometimes sell for vast sums of money.
• Iconic Obama ‘Hope’ Poster, & Lichtenstein’s ‘Sleeping Girl’ which
sold for $45 million at auction.
D.C. Comics, 1964 Lichtenstein, 1964 A.P. Photo, 2006 Shepard Fairey, 2008
25. Purpose of the Study
• This study seeks to identify what people consider
‘transformative’, and whether they use the legal
constructs created by the courts in their judgments.
• This study also examines the effects of authorship
awareness on judgments about transfromativeness.
• How personal characteristics such as viewers’ artistic
and technological experience contributes to judgments
about works of appropriation art.
26. Research Questions
• RQ1: Do people use the legal constructs fashioned by the
courts in order to distinguish between an original work of
art and one that is appropriated?
• RQ2: Will authorship affect viewers judgments of similarity
between original and appropriated images such that
famous authors will be given greater leeway? Will their
derivative works be judged as more transformative simply
because they are famous?
• RQ3: Will viewer artistic and technological experience affect
similarity judgments?
27. Methods
• A questionnaire was administered to 60 UCSB
students. All of the participants were college age males
and females recruited through the SONA system.
• All participants made similarity judgments of 70
different image pairs of appropriation art which were
shown to them on a projector.
• The participants were split into three groups of 20
participants each and each group completed a unique
set of evaluations of the image pairs.
28. Methods
• Likert-type questions were used to measure similarity
judgments of two works of art (1= Dissimilar, 9=
Similar).
• Participants were given 10 seconds to make the
similarity judgments for each of the 70 image pairs of
appropriation art, ranging from pairs which are the
subject of famous copyright infringement court cases,
to obscure image pairs found on the internet, memes,
and pop art.
29. Instructions
The term 'work' can refer to any medium of art, including but not
limited to, film, TV, images, paintings, statues, sculptures, tattoos,
magazine photos, advertisements, movie posters, internet memes,
collages, cartoons, stamps, etc.
Go with your first instinct and do not second guess yourself. There
are no 'correct' or 'incorrect' answers, and there are no trick
questions.
Rate the image pairs on being overall 'similar' or 'dissimilar'. Rate the
overall feel of the two works, do not become too focused on one
variable or another.
31. Methods
• After similarity judgments of all image pairs had been
made, participants were then asked to answer several
other questions about the image pairs.
• The questions were about author’s fame, and
questions taken from legal constructs defining
transformativeness: “Considered useful art,” “adds
value to the original,” “new expression, meaning, or
message,” “quoted matter used as raw material,”
“public benefit,” “parody,” “entirely different
aesthetic.”
32. Methods
Likert-type questions were used to measure these
judgments as well (1-9).
Participants were given 25 seconds to make these
judgments for each of the 70 image pairs.
34. Questionnaire
How famous is the creator of the 1st work?
Not Famous 1 2 3 4 5 6 7 8 9 Famous
I am confident that I know who created the 1st work.
Disagree 1 2 3 4 5 6 7 8 9 Agree
How famous is the creator of the 2nd work?
Not Famous 1 2 3 4 5 6 7 8 9 Famous
I am confident that I know who created the 2nd work.
Disagree 1 2 3 4 5 6 7 8 9 Agree
35. Image Pair 20
Mean Similarity Judgment: 6.22
Robert Heinlein, „Doublestar‟ Book Cover Glenn Brown, Loves of Shepards
36. Questionnaire
The second work alters the original with new expression.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work alters the original with new meaning.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work alters the original with new message.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work comments on, or criticizes, the original specifically.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work comments on, or criticizes, something other than the original specifically.
Disagree 1 2 3 4 5 6 7 8 9 Agree
37. Image Pair 17
Mean Similarity Judgment: 3.03
Botticelli, Birth of Venus, 1486 Warhol, Birth of Venus, 1984
38. Questionnaire
The second work uses the original as the raw material for its creation.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work adds value to the original.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work creates an entirely different aesthetic than the original.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work is an example of 'useful art'.
Disagree 1 2 3 4 5 6 7 8 9 Agree
The second work provides significant benefit to the public.
Disagree 1 2 3 4 5 6 7 8 9 Agree
39. Image Pair 57
Mean Similarity Judgment: 2.50
Raimondi, Judgement of Paris, 1515 Manet, Le jeuner Sur L'Herbe, 1863
48. Research Question 1:
• Do people use the legal
constructs fashioned by the
courts in order to distinguish
between an original work of art
and one that is appropriated?
49. Multiple Regression of
Similarity/Dissimilarity Judgments on
Legal Factors
The second
work creates
an entirely
different
aesthetic
than the
original.
The second
work alters
the original
with new
expression.
The second
work alters
the original
with new
meaning.
The second
work alters
the original
with new
message.
r= -.813 -.667 -.594 -.572
p< .000 .000 .000 .000
50. Multiple Regression of
Similarity/Dissimilarity Judgments on
Legal Factors
The second
work
comments on,
or criticizes,
something
other than the
original
specifically.
The second
work
comments
on, or
criticizes, the
original
specifically.
r= -.529 -.513
P< .000 .000
51. Multiple Regression of
Similarity/Dissimilarity Judgments on
Legal Factors
The second
work is an
example of
'useful art'
The second
work provides
significant
benefit to the
public.
The second
work adds
value to the
original.
r= -.366 -.288 -.239
p= .002 .016 .046
54. Blanche v. Koons
Court Ruling: Fair Use
Mean Similarity Judgment: 2.80
“A commentary on the social and aesthetic consequences of mass media.”
Gucci Print Ad, 2000 Jeff Koons, „Niagara‟, 2000
55. Friedman v. Guetta
Court Ruling: Copyright Infringement
Mean Similarity Judgment: 7.13
Thierry Guetta, aka Mr. BrainwashGlen Friedman, Run-D.M.C
56. Rogers v. Koons
Court Ruling: Copyright Infringement
Mean Similarity Judgment: 5.37
Art Rogers, Greeting Card Jeff Koons, „String of Puppies‟ Sculpture
57. Gaylord v. United States
Court Ruling: Copyright Infringement
Mean Similarity Judgment: 4.37
Frank Gaylord, Korean War Veterans Memorial U.S. Government Stamp
58. Leibovitz v. Paramount
Pictures Corp.
Court Ruling: Fair Use
Mean Similarity Judgment: 4.27
Annie Liebovitz, 1991 Paramount, „Naked Gun‟ Poster, 1994
59. Morris v. Young
Court Ruling: Fair Use
Mean Similarity Judgment: 4.42
Dennis Morris, Sex Pistols Photo Russell Young, „White Riot‟
60. Cariou v. Prince
Court Ruling: Copyright Infringement
Mean Similarity Judgment: 4.85
Parick Cariou, Yes Rasta Richard Prince, Canal Zone
61. Research Question 2:
Will authorship affect viewers judgments of similarity
between original and appropriated images such that
famous authors will be given greater leeway? Will their
derivative works be judged as more transformative simply
because they are famous?
Warhol, 1984„Thriller‟ Music Video, 1982
62. Appropriation Artists
Perceived to be Famous
• Isolated artists who received highest ‘Fame’ rating.
• Andy Warhol
• Roy Lichtenstein
• Thierry Guetta aka. Mr. Brainwash
• Shepard Fairey
• Nobody could spot a Van Gogh
76. Does a Participant‟s Experience With
Manipulating Photos Affect Similarity
Judgments?
I engage in
manipulating
photos from
the internet
or other
sources.
Mean N Std. Deviation
Low
High
Total
5.2600
5.1153
5.1821
24
28
52
.46061
.70950
.60620
77. Does a Participant‟s Experience With
Manipulating Photos Affect Similarity
Judgments?
I engage in
manipulating
photos from
the internet
or other
sources.
Mean N Std. Deviation
Low
High
Total
5.2600
5.1153
5.1821
24
28
52
.46061
.70950
.60620
NO
78. Will Self Identifying as an Artist
Affect Similarity Judgments?
I consider
myself an
artist.
Mean N Std. Deviation
Low
High
Total
5.1805
5.2901
5.2394
25
29
54
.57016
.63594
.60325
79. Will Self Identifying as an Artist
Affect Similarity Judgments?
I consider
myself an
artist.
Mean N Std. Deviation
Low
High
Total
5.1805
5.2901
5.2394
25
29
54
.57016
.63594
.60325
NO
80. Will Taking Formal Art Classes
Affect Similarity Judgments?
I have take
formal art
classes.
Mean N Std. Deviation
Low
High
Total
5.1616
5.2177
5.1881
28
25
53
.55515
.67697
.61020
81. Will Taking Formal Art Classes
Affect Similarity Judgments?
I have take
formal art
classes.
Mean N Std. Deviation
Low
High
Total
5.1616
5.2177
5.1881
28
25
53
.55515
.67697
.61020
NO
82. Conclusions
• This study seeks to identify what people consider
‘transformative’, and whether they use the legal constructs
created by the courts in their judgments.
• The legal constructs most closely correlated to similarity
judgments were “the second work creates an entirely
different aesthetic than the original” and “the second work
alters the original with new expression.”
• The legal constructs least correlated to similarity judgments
were “the second work provides significant benefit to the
public”, and “the second work adds value to the original.”
83. Conclusions
• This study also examines the effects of authorship
awareness on judgments about transfromativeness.
Famous artists didn’t catch a break.
84. Conclusions
• How personal characteristics such as viewers’ artistic
and technological experience contributes to judgments
about works of appropriation art.
Didn’t make a difference.
85. Future Research
• Future research can look for additional ways to
account for the similarity space between images
of appropriation art such as color, and amount of
the original used.
• Examine societal and individual attitudes toward
appropriation, to see if our notions of copyright are
changing.
89. Special Thanks
• Research advisor Dr. Daniel Linz for help and
guidance.
• Colleagues Christine Cha, Blair Siegal, Nicole
Auerbach, Jessica Bragg.
• Chris Seaman for help with survey design and data
analysis.
• My parents Ray and Chana Kahn for their love and
support.
• URCA for research funding.
