Abstract
Copyright law generally prohibits copying. Contemporary art has increasingly come to rely on copying. Thus, the two are on a collision course—or so the traditional argument goes. This purported clash between the law and creative practice seemed to reach its apex in the Supreme Court’s recently decided Warhol v. Goldsmith, which refused to find that Warhol’s famous brand of unlicensed appropriations constituted fair use. The dissent, and much of the commentary published after the decision, largely replicated the traditional argument, warning that the Court’s holding will have existential consequences—striking at the very heart of the way in which artists today have been raised to make and understand art.
This Article presents qualitative empirical evidence that calls the traditional argument into question for two reasons. First, because the traditional argument overestimates the role of law in artists’ day to day practice, and second, because artistic practice may be moving away from the type of wholesale copying (often called “appropriation art”) that characterized much of postmodern artistic practice. Through twenty interviews with leading contemporary artists, museum curators, and gallerists, this Article highlights an art world more attuned to the problematic politics and potential inequities in using others’ copyrighted works. Artists who engaged in appropriation (incorporating materials from other sources) often sought licenses or informal permissions—not because of any threatened legal consequences, but for ethical or moral reasons. Other artists disavowed appropriative practices altogether, citing the power and capital imbalances that often attend such takings. Where artists did take without asking, it was from corporations rather than individuals, and they did so to comment on how the appropriated image specifically perpetuates systems of unequal power and capital—a form of critical appropriation that Warhol leaves, hopefully, intact.
This Article outlines how contemporary artists are developing an ethics of appropriation almost entirely independent from the law—but one that may be more consonant with copyright law than the traditional argument has assumed.
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