Farley, Christine. “Judging Art.” Tulane Law Review 79  (March 2005):  805-858.

In this article Farley discusses the many instances when judges confront issues where they need to make determinations concerning art.  She writes that “whether law seeks to protect or encourage the arts, it, like many other institutions, assumes that the arts are intrinsically valuable.  Because of this value, the law seeks to separate out art for special privileges.  It is for this reason that art needs definition.” (p. 810). Usually these are implicit judgments,  not informed by contemporary developments in aesthetics and art history.  When dealing with copyright law as applied to the work of appropriation artists like Jeff Koons and Sherrie Levine, the actions of the artists will not be understood unless the underlying aesthetic theory which motivates the actions are understood.  Farley urges judges to use experts and/or to make themselves aware of relevant aesthetic theories as these apply to cases which come before them.

Farley looks at the many interactions between law and art.   She reviews first  the arguments why courts fail with respect to the arts.  “The law appears  apathetic about the rationale for protecting art, as well as the definition of it, even as it is obliged and/or inclined to differentiate art.” (p. 810).  Starting with Justice Holmes’  statement in Bleistein that courts should exercise restraint in making aesthetic decisions, Farley discusses a number of cases where judges have avoided making aesthetic judgments. She then reviews a number of statutes which deal with art, such as the Visual Artists Rights Act, and looks at how they define art. She  finds courts avoiding the definition of art, and uses the Rogers v. Koons case as an example of this approach.  In Koons “the pertinent question was whether appropriation art makes fair use of copyrighted work, [but]  the court instead addressed itself to the legal requirements of parody.” (p. 836). 

Farley believes that instead of using a parody analysis, the Koons court should have looked at the practice of appropriation art in selecting images from mass media and popular culture and recontextualizing them.  By restricting its analysis to the question of whether Koons use of Rogers photograph was a case of parody, the court did not look at the cultural value of Koons’ art. It also rejected the possibility for a fair use defense in cases of satire and broad social criticism. Farely finds that the use of art industry and art historic experts could aid courts in making more appropriate and nuanced analyses of the art practices of post-modern artists and the extent of protection that should be extended to the products of these artists under the fair use defense to infringement.

Appropriation art is an important post-modern movement that was most active during the 1980's and 1990's. It has philosophical antecedents in the work of cultural theorists like Roland Barthes, Michel Foucault and Jacques Derrida. It is a movement that is critical of modern consumer society and the media and advertising-saturated environment which is a major component of that society. It calls into question originality, the romantic notion of the author, and related social institutions like the gallery and the museum. The artistic practices of appropriation artists, which involve copying images of earlier art works or popular media or advertising, come into conflict with copyright law. This annotated bibliography contains a number of law review articles and cases that deal with the conflict between appropriation art and copyright. Jeff Koons, a major appropriation artist of the 1980's, is the major focus of this material. The bibliography also contains a monograph of Koons' work during the 1980's that articulates his philosophy of art making and provides a context for his work. Most of the commentators conclude that there are a number of solutions to this conflict that would allow this significant, socially critical art movement to continue. These include compulsory or copyright-holder controlled licensing, a specific statutory change to encompass the practices of appropriation, the use of art historical experts in court challenges to allow for more nuanced judgments, and, most significantly, an expansive reading of section 107 of the copyright statute's fair use defense which would encompass artistic innovations like appropriation art.