A Dangerous Undertaking: Appropriation Art, Intellectual Property, and Fair Use Since the 1990s
This dissertation is a historical examination of the broad and multifaceted role of appropriation in twentieth and twenty-first century American art. It argues for the complementarity of research in legal and art theory with respect to the origins, significance, and future of appropriation and contends that the historical development of appropriation art is indissolubly interconnected with changes in intellectual property laws. This dissertation proposes that a history of contemporary appropriation requires an interdisciplinary approach, employing art historical, legal, and economic theory to examine interrelations between appropriation art, postmodern theory, and the legal doctrine of fair use. Special attention is paid to the development of terms used to describe and define appropriation art. The art historical definition of appropriation is traced through a review of academic criticism and museum exhibitions. The legal understanding of appropriation, which has a direct impact on the creation and dissemination of art that builds on prior works, is explored and clarified. Economic claims about artistic property rights and art markets are also considered and differentiated. Throughout, I question established understandings of appropriation and identify unresolved issues in the scholarly treatment of appropriation art. I draw distinctions between ethical and legal guidelines for reuse of images and suggest that further development of ethical guidelines is more important than further clarification of legal rules. Ultimately, I conclude that transformative use is a valuable framework for understanding appropriation, but conclude that judges cannot be expected to determine whether or not a work is transformative without expert guidance, preferably from artists themselves, and recommend that artists participate actively in the development of an ethical fair use.
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