Greenberg, Lynne A. “The Art of Appropriation: Puppies, Piracy and Post-Modernism.” Cardozo Arts and Entertainment Law Journal. 11 (1992): 1-33.

    While this another article which supports the argument that appropriation art should be subjected to different kind of copyright analysis, there are some aspects of which are unique to this article. The first is its discussion of whether or not creativity should be a requirement for copyrighting derivative works. She discusses and defines creativity within the context of the holding given in the Bleistein v. Donaldson case. She refers to Justice Holmes’ quote concerning the law and art: “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” I plan on discussing why the legal system has seemed to ignore such sentiment. He also questions the requirement of originality as the “primary measure in determining whether a work merits copyright protection.” She then goes on to discuss Sherrie Levine’s and other photographic works within this context.

    Greenberg then discusses the idea of the readymade object in Modern art, a topic which I am still unsure whether or not I will have the room to discuss in my paper. Nevertheless, there is a good discussion on how the “blurring of the distinction between artistic works and the realm of the everyday object” has affected how creativity is to be measured, and copyright infringement is to be determined.

    Lastly, she uses the Rogers v Koons decision in order to highlight how the fair use defense is often unsuccessful, as well as providing background and her own opinions on the case. The court didn’t agree that Koon’s use was a fair use, but that instead that it infringed on a photograph taken by Rogers. They found that all four factors of the defense (1. purpose/character of the use, commercial nature, 2. nature of the copyrighted work, 3. amount and substantiality, and 4. effect of the use upon the potential market) were in Roger’s favor. She argues that finding that Koons’ work couldn’t be considered “proper’ criticism or commentary” […] effectively censors the works of all artists working within the appropriation tradition.” The discussion and analysis of this case will be important to my essay.

Chung, Cecilia. “Preservation of First Amendment Rights: Finding the Proper Balance Between Expression and Exploitation in Works of Art." Santa Clara Law Review 46 (2006): 889. (USE LEXIS NEXIS NOT HEIN ONLINE AND SEARCH "First Amendment Rights")

This article takes the position that much of modern art is subject to protection under the First Amendment. It asks the question, who really owns the rights to commercial images such as celebrity personas, trademark images, and other images that are circulated in popular culture. The author specifically points to Warhol, who he argues “ingeniously merged everything from mundane, commercial objects such as Cambell’s soup cans and Coca-Cola bottles to images of mega-celebrities including Marilyn Monroe and Elvis into works of art.” Yet, as the article points out, “ownership of intellectual property presents a unique problem” because it is unclear who exactly has the rights to “assert ownership of his or her personality or identity.” Thus, it has been difficult to both balance and define the right of publicity. What is part of the public domain, and in the context of modern art, are artists allowed to use brands and personas without infringing upon someone else’s first amendment rights?

The article then discusses this issue in terms of protecting intellectual property and promoting free speech.The article states, “the purpose of any intellectual property right is to encourage creativity, promote diversity and preserve a competitive marketplace. In part, this goal is achieved both by the placement of ideas into the public domain and respect for the First Amendment. Therefore, the overprotection of intellectual property is just as dangerous as under-protection.” I think this is crucial to my paper because it discusses the issue of appropriating within a different context – that of First Amendment rights as well as Intellectual Property rights. Additionally, it discusses the idea of how there must be works present in the public domain in order to promote creativity, a problem which my paper plans to address.

The article also refers to how the courts have used the transformative test in order to decide whether or not a piece of art had become primarily the artists “expression rather than the celebrity’s likeness.” The transformative test is important in discussing both appropriation art as well as music sampling, as it is very similar to the de minimis analysis used in Bridgeport v. Dimension Films. The author finds numerous issues with the transformative tests, believing that it “quickly chills free speech,” and that “if a potential lawsuit threatens every artist that accurately depicts a celebrity, then the incentive to creative artistic depictions will be entirely lost.”

Overall, this article attacks a specific problem within appropriation art – that of using celebrity personas. I think this is an interesting category to discuss.

This article discusses the role that derivative works play in the current copyright law landscape. More specifically, the author uses derivative works to make the point that current copyright law must be amended. She believes that the law too often blindly finds in favor of the original author without taking into account the way in which a derivative work came into being or what it is meant to represent. She boldly states that copyright law, “given the importance of appropriation in various fields of art and other expressive activities” is counter-intuitive. This argument will be useful for my paper, as it specifically focuses on modern, appropriation art and digital music sampling.
Voegtli states that “appropriation has been an integral part of the creative process well before the arrival of the digital technology,” pointing to artists such as Warhol and Duchamp. She traces the history of copyright law since 1709, and the ways in which derivative works have played a part. This history will be important to my paper, as I too plan to briefly document the change of copyright law over the past decade, and its implications for the future ones. She continues to discuss copyright law within the context of appropriation art, referring to Sherrie Levine, Jasper Johns, Richard Prince, and Jeff Koons, all of whom I plan on discussing in my paper. In analyzing the Rogers v. Koons court decision, she argues that “the court refused to take into account defendant’s artistic style in its fair use analysis.” She lists reasons why appropriation art has had a tough time meeting the fair use standard, as well as why they are often not considered parodies. This will be very useful, as I plan on discussing the different fair use defenses and the “artistic style defense,” and why appropriation art hasn’t been considered excusable by either of them.
The article then describes the different justifications for derivative rights, including The Economic Theory, the Incentive Factor, and the Personality Theory. I will most likely spend the most time focusing on the Personality Theory as it relates to art and sampling. She then ends by discussing different proposals that could be implemented to restrict derivative rights. These include Compulsory Licensing, the Fair Use Doctrine, and redefining the ambiguous term of “derivative work.” I will be discussing these solutions and contrasting them with alternative solutions proposed to the appropriators themselves. Which ones seem more feasible, etc?

Schietinger, John. "Bridgeport Music, Inc v. Dimension Films: How the Sixth Circuit Missed a Beat on Digital Music Sampling." DePaul Law Review 55 (2005): 209-249.

In discussing the ruling in Bridgeport Music Inc. v. Dimension Films, this article is key in understanding the past, present, and future of music sampling. This article clearly defines music sampling as “the incorporation of portions of an existing song into a new song,” and has its roots in hip hop music in the 1970s. Still today, sampling is rampant, and most relevant in rap and hip hop music, although it does occur in other genres of music. There exist two types of music copyrights: 1. musical composition which protects the song, lyrics, and music and 2. sound recording which protects “one particular recording of a musical work.” Owners of these copyrights are entitled to exclusive rights, which may differ.
Copyright infringement occurs in music sampling when someone uses a recording without permission. Ownership of copyright, proof of copying, and unlawful appropriation of original elements must all be present for there to be a successful infringement claim. Proving infringement when the work does not “wholly and exactly” copy the original has proven to be a bit tricky. The courts resort to a “de minimis” analysis of the two works in order to decide whether or not the two works are “substantially similar.” The article proceeds to outline the methods in which the courts come to these conclusions, as well as discussing the fair use doctrine defense and how musicians have responded by obtaining licenses.
The article then goes into detail about the Bridgeport case and the different holdings. The federal court found in favor of the defendants by ruling that the use of the original work was so insignificant (de minimus) that infringement had not occurred. Next is an analysis of the Sixth Circuit holding and arguments. The author discusses the Court’s support of its “easily applicable bright-line rule.” However, he strongly disagrees with the finding that any unlicensed sampling shall be deemed as copyright infringement. The biggest problem he has with the court’s decision was that they did not allow for a de minimis analysis in reaching its final ruling. Not doing so, he argues, “runs counter to the purpose of copyright law, namely the encouragement of artistic creation.” Here comes the importance of this article to my paper: the author writes, “essentially, if a musician samples anything from another’s sound recording, no matter how much he or she manipulates it or how brief the sample, he or she must get permission to use it or be liable for infringement.” Lastly, the article lists the different ways that musicians can respond to this rule, but notes that most of the alternative solutions fall short. He then follows up with a discussion about how he would have resolved the case in order to encourage, not stifle, musical creativity. His concluding discussion of the impact of the case will also be an important consideration in my paper, as I too will be dealing with the future implications of this ruling, along with others.

Ruiz de la Torre, Carlos. "Digital Music Sampling and Copyright Law: Can the Interests of Copyright Owners and Sampling Artists Be Reconciled?" Vanderbilt Journal of Entertainment Law and Practices 7 (2005): 401-410.

This is an interesting article about music sampling, writing from an angle that takes into account both sides of the sampling debate. The author’s goal is to answer the question of whether or not it is possible to resolve the interests of both the copyright owner and sampling artist. He provides some background on how musicians must go about licensing a sample, if that is the path which they choose to take. He notes that “current copyright infringement tests relevant to sampling are vague, making it difficult for sampling artists to know the boundaries. Additionally, purchasing the appropriate licenses can be overly expensive, depending on the extend of the re-use and the cooperativeness of the copyright owners.”

The article outlines five different possible solutions to the music sampling issue, noting the pro’s and cons of each, which is helpful. The five alternatives include: 1. Compulsory Licensing (which he believes to be the most promising and feasible), 2. Voluntary Structured Negotiation, 3. Economic Approach, 4. Pattern-Oriented Approach, and 5. Educational Use. The Pattern Oriented Approach will also be useful to my paper, as it proposes that “the phenomenon of sampling could also be considered a legitimate cultural pattern justifying the application of the fair use defense whenever it occurs.”

He also makes an excellent point in one of his endnotes, which is hugely relevant to my paper. He writes, “by discouraging the growth of sampling, the current law tends to interrupt a long tradition of musical borrowing practices in various genres that includes the reworking of songs by contemporaneous artists in American folk music, classical composers’ practice of composing variation forms based on existing themes, and the quoting of others’ tunes in the context of jazz improvisation.”

Carlin, John. “Culture Vultures: Artistic Appropriation and Intellectual Property Law.” Columbia VLA Journal of Law & the Arts 13 (1988): 103-143.

This article presents a very good general understanding of how appropriation art fits into the bigger picture of how and why copyright law needs to be updated. Carlin opens his essay by explaining the ever-increasing importance of popular culture and mass media in modern culture. Written in 1988, this phenomena has only arguably gotten worse and even more dominant. He notes, “the representation of the media in art often violates the rights of those who own, through copyright or trademark, the imagery which fills the American landscape.” The main goal of this article is thus to “explain the artistic and social value of appropriation, and to determine when it should be distinguished from the infringing aspects of plagiarism.” Establishing a clear difference between the two is key to my essay as well.

His central argument is that some, if not all appropriation should be allowed to exist freely, instead of infringing upon copyright. More specifically, he believes that appropriation art should be considered part of the fair use doctrine. He differentiate two types of raw/source materials which appropriation art uses. 1. commercial imagery found in popular culture and 2. existing artistic imagery. Next, he distinguishes the two ways in which an artist can choose to use these materials: 1. collage, 2. pure appropriation.

Carlin then argues for the legitimate and significant role that appropriation plays in modern art. Essentially, Carlin’s voice is that of appropriation artists, as he states that appropriation art is “an inevitable chapter in the evolution of Modern art, because it challenges the traditional notions of originality and authorship upon which value in fine art typically has been judged.” He continues by also noting that “allowing Appropriation to fall within fair use may permit tangential instances of commercial freeloading, but this is balanced by the greater value of promoting the development of contemporary art by allowing that aspect of the natural environment that is made up of commercial signs to be represented in art without fear of substantial legal liability.” Carlin points to the Bleistein v. Donaldson case as setting precedent for how the law promotes “fine” and “useful” art. As an art history student, I have learned enough about the movement to agree with his sentiment, and my paper will support this mindset.

He goes on to point out the different negative effects that subjecting appropriation art to large licensing fees would create. These basically revolve around how art is reproduced to serve galleries, art journals, and catalogues, and they would be effected. Lastly, his in depth analysis of the work of Sherrie Levine will prove very helpful in my paper. Levine is an artist who became famous by very strictly appropriating the work of other artists and photographers, and then called it her own. Her works represent the difference between “literal complete copies” and appropriation art which is “highly manipulated, recontextualized, and part of a larger ensemble of effects,” such as Warhol, Johns, Rauschenberg, and Duchamp.

    This case, in which the final opinion was just recently issued in the summer of 2005, has proven to be very significant in the worlds of copyright and digital music sampling. The case was initially filed in 2001 by Plaintiffs, Bridgeport Music, against the Defendants, Dimension films, for copyright infringement. They argued that the Defendants used unauthorized samples of music of which they owned the musical composition and sound recording copyrights. The sample in question was from a Funkadelic’s song entitled “Get Off Your Ass and Jam.” Hip-hop group N.W.A had taken a “two-second sample from the guitar solo [that was then] copied, the pitch was lowered, and the copied piece was “looped” and extended to 16 beats” to be included in their new track, “100 Miles.”This song was then included on the soundtrack for the film, “I Got The Hook Up,” which was distributed by Dimension Films.
    The case was first brought before the District Court in Tennessee. The Defendants argued that infringement had not occurred, citing “(1) that the sample was not protected by copyright law because it was not “original”; and (2) that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law.” The Court found that the sampling didnt “rise to the level of a legally cognizable appropriation,” by employing a de minimis analysis.
    However, on appeal, the Sixth Circuit Court of Appeals reversed the District Courts decision, ruling that N.W.A’s sample had indeed violated copyright law. They recognized that copyright owners have the exclusive right “to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.” The opinion states, "Get a license or do not sample. We do not see this as stifling creativity in any significant way." Consequently, a new bright-line rule was created regarding music sampling: if an artist doesn’t license a recording, then the resulting sample will be considered copyright infringement.
    As the most recent and important case in music sampling, the Sixth’s Circuit Court’s final ruling and explanations will be crucial to my paper and analyzing how the law has responded to music sampling.

Slater, Derek. "Take Another Little Piece of My Art." Illegal Art | Creative Commons. July 2003. Creative Commons.

    This article comes from the Creative Commons website, whose goal is to “enable the legal sharing and reuse of culture, educational, and scientific works.” This site essentially promotes the same idea as Lessig and my paper, which is that current copyright law has its flaws and in fact inhibits creativity.
    The article reviews the art exhibit “Illegal Art,” which was featured at San Franscisco’s Museum of Modern Art. The exhibit asks the question, “Where do the First Amendment and "intellectual property" law collide? What is art's future if the current laws are allowed to stand?” (illegal-art.org). The exhibit was made up both of the visual and audio components, aiming to highlight “how copyright, typically considered an engine of creativity, can stifle art and free speech.”
    The curator of the show, Carrie McClaren, explains how this show was created partly in response to the disappointing Eldred v. Ashcroft decision regarding copyright extension. The ruling allowed copyright protection to last 95 years or life plus 70 years. As a result, many artists must obtain permission from the original author, who holds certain exclusive rights, in order to reuse a copyrighted work. Slater notes, “ever appropriation is presumptively a misappropriation”**
    The “Illegal Art” exhibits works which “take elements of our mass media environment to express how the artist feels about our culture” – similar to many modern and post-modern art styles that I am writing about in my essay. Slater describes some of the showcased work, using them to discuss a wider landscape of legal cases involving derivative works. He argues that “the lack of a clear, consistent fair use doctrine has created a strong chilling effect on “Illegal Art” parodists and others like them, as the law is quick to side with original authors, and poses serious obstacles to appropriation artists who may not be able to afford litigation. Even if a new work which borrows from an old is “highly transformative or borrows only trivial portions,” the legal system seems content in finding in favor of the original copyright holder.
    He moves to music sampling, using The White Stripes and U2 as two groups who were ok with their songs being sampled. Nevertheless, lawsuits still occur. Slater states, “had these legal limitations existed years ago, perhaps collage, rap, and Pop Art would have been sued to death before they ever had a chance to flourish.” This idea is key to my essay, as it raises an important issue about the future of both music and art in terms of current copyright law. Further important to my paper is a quote by Mark Hosler of Negativland about collage art and its legitimacy of an art form.

From Lessig's Free Culture: "Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so." This paper is heavily influenced by Lawrence Lessig's idea of conflicting "free" and "permission" cultures. I use two seperate, but inextricably similar ideas - appropriation art and digital music sampling, to show that today's copyright law actually stifles creation. Copyright law, if it is indeed in place to protect the free flow of ideas, creativity, and expression, must be reevaluated in the face of new technology and modern times. Thesis: The digital sampling of musical recordings and appropriation art should be legalized by amending copyright law to provide for a shorter term of protection and a compulsory license provision covering the underlying works.

Morris, Gay. "When Artists Use Photographs: Is it Fair Use, Legitimate Transformation or Rip Off." ArtNews. 102-104 (1981).

    This article comes from a monthly art magazine called ArtNews, so arguably more from the artists perspective than from a legal perspective. . It examines three different cases in which artists incorporated photographers prints into their own works, leading to legal disputes.

1. Robert Rauschenberg: Rauschenberg used a photograph taken by Morton Beebe for his work “Pull,” which is a mixed medium work made up of the print, as well as fabric and taffeta. Upset that the artist had “borrowed without recognition,” Beebe brought suit against Rauschenberg, who was dismayed at Beebe’s response because in the past, many people were often very pleased with being appropriated by the famous artist. Beebe ended up settling, receiving a lower monetary value than originally hoped for, citing that the time and cost commitment was just too much. In his defense, Rauschenberg later issued a statement which read, “I have never felt that I was infringing on anyone rights as I have consistently transformed these images sympathetically with the use of solvent transfer, collage and reversal as ingredients in the compositions which are dependent on reportage of current events and elements in our current environment, hopefully to give the work the possibility of being reconsidered and viewed in a new context.” Rauschenberg also got into a dispute with another photographer, Dennis Brack.

2. Andy Warhol: Warhol was involved in many different lawsuits over the subjects he used in his silkscreen paintings, and this article mentions two of them: Patricia Caulfield and Charles Moore. Caulfield’s case involves a picture of a flower which was then reproduced, silkscreened, and painted by Warhol. She notes, “she did not have the time, money or energy to pursue the matter further,” after the settlement was decided. Moore’s image was of a race right in Birmingham which was used in Warhol’s famous “Race Riot” series. Moore is quoted as saying to Warhol, “I want it settle so you know, and other artists know, you cant just rip off a photographers work.” – For my paper to explore – are these artists “ripping off?”

    Last, the article discusses why incidents such as those listed above have become so commonplace. First and foremost is a lack of understanding of the law by many artists. Artists are not lawyers, and for this reason, many of them do not always understand the legalese of the law. In addition, copyright law has been complicated by the fact that the Copyright Law of 1976 changed many of the preceding laws and so works made before and after 1978 are subject to different laws. The article also notes how photography is often considered to be part of the public domain, which explains why artists tend to use photos that may be unauthorized, without realizing that they are indeed infringing on a copyright. The article wraps up by listing some short suggestions as to how the artists can avoids these run ins with the original photographers.

    This article is very helpful to my thesis as it gives three very detailed examples of modern artists (the third to be discussed in the paper) whose unauthorized use of photographs in their works landed them in trouble with the original owners of the photo. Additionally, it highlights the time and cost commitment that often inhibits original authors from pursuing legal action against the artist, who they believe to be guilty.

    Beginning with Chapter One, we see Lessig's opinion forming quickly on the state of copyright law today. In his chapter on Creators, Lessig forms his main issues with the law, the first being that it hurts the development and flourishing of creative and artistic works that are based on derivative works. Second, the issue of how long copyrights last, and how that affects public domain, and subsequent uses.
    He starts out by discussing Walt Disney and how the character of Mickey Mouse had been inspired by the Buster Keaton film, "Steamboat Bill Jr." However, at the time, Lessig notes, this "borrowing" of characters was commonplace, and didn't result in much controversy. As Lessig points out, "these additions were built upon a base that was borrowed. Disney added to the work of others before him, creating something new out of something just barely old." Most importantly, Lessig states, "this is a kind of creativity. It is a creativity that we should remember and celebrate."  
    He briefly talks about how copyright law back then allowed for many more works to be considered part of the “public domain.” Because copyright extension didn’t last nearly as long as it does today, more works were able to be used freely, which Lessig views as an extremely positive thing. Getting permission of the copyright owner now is part of the reason why creativity has been stifled, as seen in post-modern art and music sampling.
    From here, Lessig turns his attention to the Japanese craze of Doujinshi, a kind of “copycat comic.” The process involves taking pre-existing Japanese comics and anime and “transforming it either subtly or significantly.” There are a number of different ways the second comic can change the first. Doujinshi is a huge phenomenon in the Japanese manga (comic) market, drawing more than 33,000 artists from the country. Lessig notes that despite Japanese copyright law that works very similar to US copyright law, Doujinshi is not only allowed to exists, but thrives. Lessig cites law professor Mehra who “hypothesizes that the manga market accepts these technical violations because they spur the manga market to be more wealthy and productive. Everyone would be worse off if doujinshi were banned, so the law does not ban doujinshi.”
    This response to borrowing and appropriation deeply impresses Lessig, and is key to my thesis. I will analyze why America responds in such a different manner, as well as the pros and cons of each response. This chapter is also crucial to my paper because it highlights how derivative works were dealt with in the past, how copyright extension has negatively effected creation, and how appropriation is dealt with in other cultures. I plan to discuss how American culture is both more litigious and greedy, which perhaps have resulted in such a “permission culture.”