A Quick Guide for Artists
What follows is a mere sketch of what you need to know as an artist using appropriation as a method; for information about plagiarism, see that page instead. Although appropriation and plagiarism are methodologically similar forms of intellectual taking, they are differentiable in terms of their history, their rationale, their legal and social consequences, and their ranges of cultural acceptability. It is important to understand the difference, both within and outside of the university, as it pertains to your own practices.
Intellectual property law is complicated, and if you intend to use appropriated work as an element in your own artworks, you are advised to familiarize yourself with the basic legal codes governing such takings. This is partly a matter of intellectual honesty (understanding and signaling how your own work relates to other, prior artworks; acknowledging other people’s hard work) and partly a matter of sensible self-preservation (ignorance of the law is no defense). What follows is only the most basic information pertaining to your rights and responsibilities to use appropriated work under what is known as the “fair use” doctrine without compensating the original artist. There are no hard and fast rules in this area; only a set of guidelines tending to show whether your use would be considered fair or an illegal transgression of someone else’s copyright. (The latter case would leave you open to prosecution.) There are many reasons for this Gogolian situation, but they boil down to a set of interlocked contradictions: in the philosophical justification for copyright; in the conflicting goals of stakeholders; in the erratic application of case law.
Work that is in the public domain—either because it was so created or because it has fallen out of copyright—is fair game for any amount of reuse. When it is a matter of appropriating copyrighted media, however, there are essentially four factors that artists must consider. You do not have to meet all four tests, but you must meet at least one of the tests to be protected by the fair use doctrine:
1. The purpose and character of the new work. New works that are primarily educational or socially critical (satirical, political) are more protected than are new commercial works. Works that are seen as profoundly “transformative” of the source material are also more protected.
2. The nature of the original work. Source works that are factual (such as a list of names in a phone book) are less problematic to appropriate than highly creative works. Out-of-print works are also less problematic than in-print works.
3. How substantial a part of the original was taken. Taking a great deal of an original, or taking the most essential parts, can both be problematic.
4. The effect of the new use on the market for the original work. Work that is targeted to a completely different market than the original is more protected.
Note that none of these rules of thumb directly addresses the ethical issue of crediting artists whose work you appropriate.
Below are links to some sources where you can find more detailed information. There are more FAQs and tutorials on our copyright page.
- Code of Best Practices for Fair Use for Online Video
- Fair Use of Copyrighted Works
- Fair Use Network (general copyright info)
- Creative Commons (home page of the growing movement towards a ‘public domain’ approach to creative work)