In texts there is a right to quote. In music there is not. In art – its complicated. One of the reasons is that text has always been easy to quote, music sampling has been discussed commercially for a long time but art has been slower. But what about now? With our digital toys the ability to create mashups and remixes is not in the realm of a limited number. How should copyright react to image quotes?
Artists have traditionally quoted themes and compositions. This copying has filled many roles: it has been part of the process of learning the craft, a homage to inspirational artists and a way to further a discussion by referring to, and re-interpreting, the past.
A recent exhibition at Tate Britain aimed to show that Turner quoted widely from the past. Michelangelo’s quoting of Laocoön in parts of the Sistine Chapel have even led to a theory that he in fact sculpted the work.
Pop artists like Roy Lichtenstein and Andy Warhol regularly quoted from popular culture. But this time copyright law had begun to react and the process of quoting in art was being brought before the courts. Warhol settled out of court after appropriating an image from the photographer Patricia Caulfield in his work Four Foot Flowers but his famous soup is generally seen as non-infringing.
When Jeff Koons took a photo and created the sculpture String of Puppies the photographer successfully sued for copyright infringement (Rogers v. Koons). But in 2006 Koons won a case were he quoted from the photographer Andrea Blanch in his work Niagara. The court found that he had sufficiently transformed the original so as to be considered fair use. For an interesting discussion on an important subsection of quoting: the appropriation of traditional/indigenous art read Rimmers Four Stories About Copyright Law and Appropriation Art.
How should quoting be understood?
From an artistic (or non-Copyright) perspective the issues of plagiarism and exclusivity seem to be more central to the artists. The general perspective seems to be that artists view copyright limitations to quoting as a free speech issue but there are no artistic licenses to use copyrighted images (beyond fair use). Landes makes the argument that – from a transaction cost perspective – the law should take into account the number of copies involved.
In contrast, when the appropriation artist makes many copies, he should be treated no differently from a firm that incorporates licensed images in products such as calendars, coffee mugs and beach towels.
Overexposure of a work can lead to loss of value. Wayne Hemingway writes in Just Above the Mantlepiece that mass-production is the enemy of art and supports his argument by giving the example of Tretchikoff:
Within two years of the paintings being reproduced in print form, Tretchikoff became relegated to lowbrow status. In fact, Tretchikoff’s decision to reproduce his prints . . . transformed the relationship between artist and purchaser to one between artist and a hundred-thousand purchasers.
Unfortunately attempting to discuss this from the point of view of number of copies does not really work in digital environments where 200 000 views of a YouTube clip is not a large number. There is an additional problem as much of the remixed works are free – or at least not sold by the creator.
Are artists the problem?
Another interesting problem is attempting to define “the artist”. Its easy enough to say that Jeff Koons is an artist. But is the creator of an image mashup an artist? And nomatter if you answer yes or no to that question: Will the creator of a mashup be seen as a artist in the future? How important is it really that copyright is there to help promote the production of works? And should limitations really be viewed as threats to culture and free speech?