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"Appropriation as Art: The Arts and Copyright Fair Use" (Wisconsin Lawyer)

If “change is the law of life,” it presents considerable challenges in law itself. Not only has technology had an enormous effect on the creation of art, it also has substantially affected copyright law. In the electronic age, appropriation is a significant – and controversial – artistic form. Examples are legion: Robert Rauschenberg’s “combine” paintings, Richard Prince’s photographs, Jeff Koons’ sculptures, Shepard Fairey’s “Hope” poster, music sampling, and fanfiction, to name but a few. And technology has only accelerated this trend: anyone with a computer now has access to billions of photographs, songs, films, articles, and books that can be downloaded, copied, manipulated, and repurposed.

The technology and conceptual underpinnings of appropriation are now so ubiquitous that all artists – both those who embrace the idea and rely on it for their own creations and those who eschew it but whose work might nevertheless itself be appropriated – must be thoughtful about appropriation and its potential legal ramifications. Above all else, this means that artists must be familiar with copyright law’s fair use doctrine.

Although the four-factor test for fair use seems straightforward, the doctrine is complex and often confusing. This is because courts applying the doctrine sometimes reach inconsistent results and because of the multifarious ways in which new technologies have probed and pierced the boundaries of fair use. The complexity of fair use is exacerbated by the fact that the doctrine must be pliable enough to apply uniformly both across the arts and across other disciplines such as journalism, nonfiction writing, and computer software development.

This article provides an overview of the current state of fair use law, with a particular focus for artists and lawyers advising artists. We begin with a brief background of the fair use doctrine and then discuss some of the notable fair use decisions in several artistic media. We also discuss some practical tools to assist artists and their counsel in achieving artists’ goals – whether it is protecting copyrights in their own work or understanding the contours of the fair use doctrine for the use of the material of others as inspiration or part of their own work.

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