Dangerous Type: Arguments Against Copyright in the Visual Arts

Gus Longer is a J.D. candidate, 2021 at NYU School of Law.

Creativity breeds innovations. In turn, innovations benefit the creative individuals who birthed them, but more generally, they tend to generate positive effects on society as a whole — at least in theory. In fact, the widely accepted notion that innovations’ net effect on societal welfare is positive is a major justification for copyright law’s bestowal of exclusive rights and protections over creators’ inventions. By protecting creators, the theory goes, copyright law provides incentives to innovate, which ultimately benefits society at large. Notwithstanding the supposedly utilitarian virtues of copyright law, the means to that virtuous end involves bestowing creators with monopoly power, albeit fairly narrow in scope. In Why Art Does Not Need Copyright, NYU Law Professor Amy Adler rejects the idea that Americans are getting the benefit of our bargain in contexts where the monopolized creators are contemporary artists.

One of Adler’s major contentions is that when the utilitarian theory of copyright law is put alongside “the reality of the contemporary art market,” a “fundamental mismatch between the two” materializes.[1]  To exemplify her point that art and copyright are incompatible, Adler starts with a case study surrounding “New Portraits,” a recent series of exhibitions by Richard Prince, who has “pushed the legal limits of artistic appropriation for decades” and been ensnared in related infringement litigation, including with respect to “New Portraits.”  Arguing that “copying does not pose a threat to visual art,” Adler proceeds with a hypothetical involving the highly prized stencil work of Christopher Wool. Describing Wool’s artwork as easy to replicate, she contends that a “copy of Wool’s painting, no matter how convincing, would never be a market substitute for it” given the nature of modernity.[2] Next, Adler refers to Seth Price’s Dispersion, providing insight into the reality of contemporary artists’ distinctive process for creation. Dispersion portrays a pronounced movement in the art world, accelerated in the wake of constant technological change, from a systemic emphasis on new content to an unabashed embrace of iterative reproduction or repurposing of third-party content as well as works that similarly exude reference to the “originals.”

As recounted by Adler, Price’s work serves as an explanation as to why contemporary artists are nearly always at loggerheads with holders of copyright. As artistic practices are indebted to decades, if not centuries, of prior practices and constellations of concepts, artists are free to question and resist the strictures of institutionally legitimated ways and means of creating, though such provocations involve the risk of losing intelligibility qua art. Price suggests that, when contemporary artists profiteer from a cultural “system that depends on reproduction and distribution . . . [and] encourages contamination, borrowing, stealing,” their works take on new artistic value with respect to their critical implications about society’s systems of legitimation.[3]

It would stand to reason, says Adler, that the application of copyright to contemporary art is not sensible. Adler additionally contends that copyright fails to positively affect the livelihoods of the vast majority of living artists and that, overall, its application to contemporary artwork creates a net cost to artists and the public alike. As a prominent account of copyright goes, copyright has as its aim the prevention of market usurpation at the hands of unauthorized copies – its protections allow creators of all stripes to retain their proper incentives to create, and the arts generally thereby flourish and progress. And yet the rules of the game are different for an art market that legitimates forms of creativity that accept copying and curation as axiomatic. So how does the art market make sense of the legitimate reproduction and distribution of aesthetic objects and cultural residua? Adler isolates the art market’s mechanism for policing the valuation of works: authentication.

Properly understood, authentication has a twofold nature: it signals that a work is “not a copy” and attests to the true identity of the subject’s author.[4] It is responsive to situations in which an artist contaminates, borrows, or steals another artist’s “visual content (but not name),” and ensures against the possibility of economic value being misappropriated through such copying.[5] As authenticity is seen to drive the art market, Adler considers how copyright fails to assist the very few artists at the top as well as their less acclaimed peers. All artists rely upon first sales for their income. Unauthorized copies rarely enter the picture, because most authentic works – despite headlines touting record-breaking sales – often fail to have any resale value, and indeed depreciate in value.[6] For the sliver of established artists who have not only a resale market but also the possibility of a market for derivative products, these sales are “almost always trivial compared to the value of even one unique work.”[7] Thus artists, practitioners, and the public are being barred from accessing and utilizing creative works because of economic suppositions that no longer have a basis in reality. Drawing upon the work of economist David Galenson, Adler argues that an authenticity-centric conception of the art market leads to the understanding that value “depends primarily on the identity of the artist, rather than the aesthetics of the work . . . . [Thus] stealing another artist’s visual content can never usurp her market power. An artist who copies another’s work takes the original artist’s visual material but does not take her brand (which would be forgery).”[8]

            As Adler suggests, copyright law is dangerous insofar as it leads to the impoverishment of artists, art historians, curators, practitioners, and the public alike, and thereby works in contravention of the IP clause of the Constitution, which mandates progress in the useful arts and sciences (thereof, one might add). Adler’s analysis of the current fair-use jurisprudence for aesthetic works is well worth reading in its entirety. For the purposes of this blog, her final two arguments about the dangers that Cariou v. Prince[9] presents for the public and for artists are especially poignant. Focusing on the Cariou fair-use analysis’s new emphasis on aesthetic changes, Adler portrays Cariou as misaligned with the “thrust” of contemporary artistic practices that, as outlined above, use “copying and repetition to undermine the notion that art should be understood purely visually.”[10] More generally, Adler submits Cariou as evidence that, without guidance, courts cannot be expected to recognize artistic progress. Adler closes this section by calling attention to the most critical aspect of the decision for artists: it “further blurred the boundary separating fair and unfair uses” by finding as a matter of law that all but five works were transformative, without providing a clear indication as to how to determine whether a use is transformative. In fact, as Adler sees it, the decision only “invited more litigation,” “chilled creativity in the art world,” and doubly harmed the public: not only do we lose access to works that were never made for fear of running afoul of copyright, we also lose access to existing works that but for copyright would have reached wider circulation through exhibitions and art historical scholarship. [11] Adler argues that the “costs of copyright law” are disquietingly “borne privately with little fanfare or attention” by “those with the least resources: ‘graduate students, junior faculty, and academics at institutions that do not cover permissions costs, along with scholars and independent curators, who only sometimes receive help from editors and institutions.’”[12] While Adler does not view copyright protection as adverse with respect to realms of creation where copying allows for the misappropriation of economic value, I leave for others to assess whether that characteristic ought to be dispositive. Like Adler, I also leave for others the feat of clearly articulating a new copyright standard that could be applied to the context of contemporary art. In the meantime, art-related copyright disputes will continue to plague the federal judiciary as much as the art community.

[1] Amy Adler, Why Art Does Not Need Copyright, 86 Geo. Wash. L. Rev. 313, 321 (2018).

[2] Id. at 344.

[3] Seth Price, Dispersion 5, Distributed Hist. (2002) http://www.distributedhistory.com/Dispersion2016.pdf.

[4] Adler, supra note 1, at 331.

[5] Id. at 330.

[6] Id. at 333.

[7] Id. at 335.

[8] Id. at 349.

[9] Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).

[10] Adler, supra note 1, at 359.

[11] Id. at 361.

[12] Id. at 363 (quoting Patricia Aufderheide et al., Copyright, Permissions, and Fair Use Among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report (2014)).