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Abstract

Commentators have pointed out that the notion of authorship enshrined in copyright law is at odds with the prevalence of copying in contemporary art.1 Copyright law envisions a creator who beholds an idea, purposes its expression, and fixes it in a work. While this approximation of the creative process may, on the whole, advance the Copyright Act’s purpose of incentivizing the progression of the arts, it also vastly simplifies that process. Special consideration should be given to modes of artistic production that this model fails to capture to ensure copyright law does not fail to reap its value in social benefit and artistic progress. Congress and the courts have given such consideration through the fair use affirmative defense.2 This Article addresses the application of that defense to a vein of contemporary art which makes it a point to take and re-present preexisting works—appropriation art.

A number of scholars have addressed the manner in which appropriation art should be evaluated under the fair use defense and, in particular, how a court is to ascertain whether a piece of appropriation art is “transformative,” a central component of the fair use inquiry. Given the many valuable insights already presented on how fair use could be remade or conceptualized in view of artistic practice, this Article seeks merely to suggest an approach that advocates and judges could realistically put into practice.3 The components of this approach are: (1) a threshold inquiry into whether the work in question is appropriation art, in which event it is transformative as a matter of law and entitled to a categorical approach of the fair use inquiry; and (2) a determination of how much of the borrowed work the defendant is entitled to use under a three-tiered approach.

Part II sets forth the fair use doctrine and its application to parody under Campbell v. Acuff-Rose Music, Inc. Part III argues that appropriation art as an artistic strategy (for want of a better term, “appropriative use”) should be viewed as a distinct category of art subject to a tailored application of the fair use defense, much like parody.4 Specifically, this Part argues that appropriative use is sufficiently embedded in historical practice that it should, like parody, be viewed as transformative per se and socially beneficial. In addition, like parody, it should be viewed as possessing a valid claim to the need for unauthorized copying that frees it from having to “justif[y] . . . the very act of borrowing.”5 Part IV builds on Professor Laura Heymann’s viewerbased approach to transformative use to suggest a method for determining whether a particular use is appropriative and how much of the borrowed work may presumptively be copied. Part V summarizes the suggested approach for appropriative fair use and evaluates how it may be limited by other case-specific factors. Part VI surveys recent case law to demonstrate why this approach is preferable to the current situation. Finally, Part VII applies this suggested framework for appropriative use to the work of appropriation artist Richard Prince.

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