The Right to Copy

by Disphotic

This is part one of a double post on copyright, curation and photography, part two here.

The issue of appropriation art and copyright is one I’ve mulled on a lot, probably because it’s a device employed by many of the artists I admire, and because it underpins quite a sizeable chunk of my own creative practice. From the photomontages I made when I was first getting into photography through to my recent rehashing of Brecht’s much mutilated Kriegsfibel, I’ve always found something devilishly enticing about borrowing and reworking existing material, twisting it this way and that in order to make a new point.

And yet I’ve also found it devilishly problematic, because I’ve also had my work appropriated (although always by people trying to get a few hits or score a quick buck, not make an artistic point) and I know how unpleasant it can be to lose control of something you’ve created. Not long ago I wrote a short piece on this dichotomy of being both victim and perpetrator, and underlying this piece was the question of whether there are ever circumstances where it is acceptable to break copyright and use another person’s work without permission, an idea I want to explore a little more coherently here.

Most photographers I’ve spoken to seem to consider appropriation inherently wrong, that to use another person’s image without permission is never acceptable. By contrast appropriation as a creative technique is rather more readily accepted in the fine art world. I’ve pondered whether this might stem from photography’s innate reproducibility making any appropriation a greater challenge to the original ownership of the work. Where a painting or collage including appropriated material exists as a discrete object, and copies are usually quite obviously copies, the same perhaps cannot be said for a photograph that includes appropriated material, particularly where that material exists intact and unaltered.

Dada ekasticism

Raoul Hausmann, Elasticum

It probably also reflects the fact there is more of an accepted tradition of appropriation in fine art, going back a century or more, of which the Dadaists are amongst the earliest and best known. In his 1931 essay Photomontage, Raoul Hausmann defined Dadaism as a form of cultural criticism, an interesting way I think of viewing all forms of appropriation, akin to quoting from visual culture as one quotes from a book. Equally from a moral standpoint I think somewhat similar rules should apply, where viable some degree of referencing should take place, credit should be given where it is due (although I’m not advocating that appropriated artworks should come with a mandatory bibliography).

In the art world there also seems to be rather more legal clarity about the acceptability of appropriation. Although I normally rather dislike TED videos (this is a pretty good summing up of the reasons) I stumbled across this rather interesting one Copyright and the Work of Art in the Age of Mechanical Reproduction given by Eric Doeringer, in which he makes the distinction between derivative and transformative appropriation. Derivative appropriation is rather straightforwardly enough where no significant change is made to the work, where profit is sought from the work as it already exists and where it’s final use evidently impacts the ability of the original creator to profit from their work. This is fairly self-evidently wrong.

The definitions of transformative appropriation are more unclear, but broadly speaking it is appropriation in which the work is changed to some extent. In the video Doeringer suggests Richard Prince’s appropriation of photographs from Patrick Cariou’s Yes, Rasta project as an interesting example of tranformative appropriation where the acceptability is muddy. In the ensuing court case Prince cited a defence of fair use, that he was making reference to Cariou rather than plagiarising his work. He was ruled against but subsequently appealed and won, setting what looks to be an interesting precedent. Legally speaking this case, and this video is in an American context, but it still looks to be an example worth noting for anyone working with appropriated material, wherever they are based.

in-the-garden-richard-prince-canal-zone

Richard Prince, In The Garden

The issue also with derivative versus transformative appropriation is that the distinction may not always be at all obvious, i.e. no transformative process might have taken place. The context in which work is placed can have as much bearing on the transformative quality of the appropriation as any physical alteration (Duchamp’s Fountain is an obvious example of this). Doeringer cites his own work, specifically The Bootleg Series, in which he produced cheap knock off versions of works by famous artists. Damien Hirst facsimiles that sell for a few dollars rather than thousands for example. The work is not substantially changed, but the idea of selling these prints on roadside stalls ‘like the guys selling fake Louis Vuitton handbags’ is central the the transformative aspect of his appropriation.

The title of Doeringer’s lecture is apt, but also misses a trick. We live not so much in an age of mechanical reproduction as one of electronic reproduction, and for photographers this fact is far more problematic than for non-digital artists. The need to maintain a certain level of profile in the online world, is offset by the ease with which one’s photographs can be downloaded and reused by someone else (the backlash over a recent government bill which seemed to relax copyright on ‘orphan’ photographs demonstrated just how contentious this is). In such a context I rather feel we are left with two responses. The first is a clampdown, to lobby for stricter copyright legislation, to sue digressers and punish them mercilessly. The music industry tried that and well, we know how that worked out.

The other option is to accept that the notion of rigidly enforced copyright is in some respects increasingly anachronistic, and to pursue copyright not in terms of a principle but in terms of practicalities. Some are already doing this, at Magnum’s recent AGM they announced they would no longer be chasing web users who posted Magnum copyrighted photographs on blogs. I’ve called on anyone who wants to download and appropriate my appropriation of someone else’s appropriation. We live in an age of constant rehashing, referencing, appropriation and jamming. Photographers are in many cases lagging behind this, and need to wake up and smell the copydex.

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