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

Greenberg’s article discusses visual art making practices connected with post-modernism and how these conflict with copyright. The article looks at neo-conceptual traditions, such as appropriation art, a serious art movement in which the artist “works by lifting images from artistic images of the past and creating replicas of these images …By confiscating the ideas, images, and even styles of the masters, the Neo-Conceptual artists radically defy the modernist ethic of individual authorship, the authenticity of expression, and artistic uniqueness as a primary goal of the avant-garde.” (p. 14). 

Greenberg offers detailed analyses of the work of Levine and Koons.  With respect to Rogers v. Koons, Greenberg notes that the fair use doctrine was not accepted by the court and that the court was hostile to the art making strategies of appropriation artists.  The court failed to see the way in which his use of Rogers’ photograph was necessary for Koons to comment upon contemporary society. The appellate court looked instead to the fair use exception for parody and found Koons’ argument lacking on this point.  For Greenberg, the Koons decision may bring a halt to appropriation art unless the court takes a fresh look at the “comment and criticism” aspect of fair use.

Fukumoto, Elton. “The Author Effect after the “Death of the Author: Copyright in a Post-Modern Age.”   Washington Law Review 72 (July 1997):  903-934.

Fukumoto looks at the intellectual background to artistic practices like appropriation art that challenge notions key to the application of the principles of copyright law. These practices challenge the romantic notion of the author as an inspired individual of genius who creates something unique. 

He reviews the ways in which contemporary writers in philosophy and cultural studies, like Barthes, Foucault, Derrida, are challenging the romantic notion of the author.  In addition, the article looks at the antecedents of these ideas in the work of nineteenth century writers like Ralph Waldo Emerson and Justice Joseph Story.

Fukomoto then discusses the artistic practices of modernism and post-modernism as they relate to appropriation in a number of creative fields, including music, literature and the visual arts. The two main cases discussed in this article are Rogers v. Koons and Campbell v. Acuff-Rose Music.  In focusing on the Rogers v. Koons cases,  Fukomoto finds that the reasoning of the court means that appropriation art will be halted as an artistic movement, unless the text or the interpretation of the fair use provision of the copyright statute changes.  The opinion in Acuff-Rose moves in a helpful direction in offering a way out for post-modern appropriation artists under fair use.

Koons is a member of an artistic community that offers a strong social and political criticism of a contemporary culture that is centered upon the production and exchange of commodities and a society that is saturated with uncritical, seductive media imagery.  For artists such as Koons, it is essential to be able to incorporate images from contemporary society to engage in key social critical artistic practices.