By Gary Schuster, Esq.

“Imitation is the sincerest form of flattery” goes the old saying. However, copyright owners have long considered imitation to be infringement and a violation of their rights. In recent years a practice has become increasingly common in a variety of art forms which some might consider flattering, and others, not. It has the general heading “appropriation art” and it is common, controversial and challenging to the legal community.

Appropriation art is where an artist takes newspaper articles, product packaging, postcards and just about any imaginable kind of found objects, including the artwork of others, and assembles them as their own work of art. The found objects are frequently the subjects of copyrights owned by someone else. The found objects might also be trademarks, or the name and likeness of celebrities, both of which are also personal property like copyrights. The work is called appropriation art because the artist “appropriates” the property of someone else and puts it in their artwork. Appropriation art is increasingly common, and without doubt it can be very creative. However, it clearly bumps into the exclusive rights of owners of copyrights, trademarks and names and likenesses. While lawyers may consider it infringement, it has become so common and widely accepted that it is the law which may have to catch up.

Appropriation art is an old phenomenon. Pablo Picasso supposedly said “Good artists copy; great artists steal.” Andy Warhol’s famous Campbell’s Soup can is an example. Sampling in music is another example. At least two factors have made this a controversial legal issue today. First, while it took great talent to paint like an old master, it takes no artistic talent and very little effort to digitally copy and paste someone else’s work. Thus the quantity or volume of copied works has grown enormously. Second, society has grown more aware of legal rights and infringements. Campbell’s Soup took no action when Andy Warhol did his painting. Today they might demand a license and royalty. Similarly, 30 years ago athletes never demanded fees when artists painted them. Today, LeRoy Neiman, Stephen Holland and other sports artists must secure licenses from not only the athletes but the teams and leagues whose logos they wear. Fifteen years ago, securing a license for sampling music was controversial and cutting edge. Today it is routinely done hundreds of times a day.

Assuming the property appropriated is owned by someone (i.e., not in the public domain and therefore free for anyone to use), the first legal issue is whether there has been infringement. Contrary to urban legend, there is no particular number or percentage of words, lines or notes which may be safely copied without infringing. Generally the tests are (i) was there access to the first work, (ii) was there copying, and (iii) was the copying substantial? What is substantial? Unfortunately there is no very satisfying answer to this question. There is actually a book of more than 500 pages on just that subject, called “Substantial Similarity in Copyright Law.” This is one of those areas where it comes down to “I know it when I see it.” One thing that can be said with certainty is that substantial similarity is a question of fact rather than a question of law. The jury will determine whether the two works are substantially similar.

Assuming there is infringement, the unauthorized use may yet be permissible under the doctrine of fair use. Fair use permits the use of the property of another, without their consent, for such purposes as education, journalism, history, and commentary. Quoting from a book for a newspaper book review would be a classic example of fair use. There are limits, of course. Fair use does not permit schools to make hundreds of photocopies of copyrighted textbooks for their students. Schools must buy them.

Another example of fair use is parody. A famous lawsuit in 1994 involved the Roy Orbison song “Oh, Pretty Woman”, which was the basis for parody treatment by the group 2 Live Crew. The group didn’t just “cover” the song, i.e., record it in their own style, but took the “heart” of the song and added their own material in a way that made the original a vehicle for their own views and their commentary on social conventions. This kind of use of the original work is considered “transformative”. Like “substantial similarity”, “transformation” is a fuzzy, know-it-when-I-see-it concept. It means something meaningful has been added, in the nature of education, journalism, history, commentary or parody.

In visual arts, artist Rick Rush “appropriated” the name and likeness of Tiger Woods into a painting and posters of Woods winning a Masters tournament. Woods sued, but lost. Rush’s use was held to be “transformative”. Up in the clouds, Rush had painted Jack Nicklaus, Arnold Palmer and Ben Hogan and several other legendary golfers. The message was that Woods was joining that elite league of golfers. The painting was held to be visual history or journalism, with the court referring to the centuries-old practice of cartoons and other artwork used to inform the public and comment on current events.

A case of non-transformative art involved a portrait of The Three Stooges sold on t-shirts without permission. The portrait was plain and simple, without any kind of education or commentary component. The artist, Gary Saderup, lost.

These lawsuits are about all the guidance there is for artists in their use of copyrights, trademarks or names and likenesses that belong to others. As fuzzy as the terms are, the lesson is clear: If you’re going to appropriate, you’d better transform.

Gary M. Schuster is an attorney with Jacobowitz & Gubits, LLP, in Walden, New York. The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is no substitute for obtaining legal advice from an attorney based on your particular circumstances.