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Chapter 69; Copyright, Appropriation, Plagiarism and Code of Ethics

In 1759, Edward Young described the difference between originality and imitation;
The mind of a man of Genius is a fertile and pleasant field, pleasant as Elysium, and fertile as Tempe; it enjoys a perpetual Spring. Of that Spring,Originals are the fairest Flowers:Imitations are of quicker growth, but fainter bloom. (Young, 1966, p. 9)
In a less colorful style, one may argue that original work of visual art like original writing comes from inspiration which in the words of Ralf Waldo Emerson (1950) "depends on the simplicity of" its creator's "character, that is, upon" the artist's "love of truth, and desire to communicate it without loss"
However, within art and design there exist a culture of appropriation, where artists or designers 'quote' the work of others.

Left: Andy Warhol and Right: Richard Pettibone

A pioneer of appropriation art is Richard Pettibone (born 1938, Los Angeles) who in 1964 produced two tiny, exquisitely made copies of Andy Warhol's 1962 painting "Campbell Soup Can (Pepper Pot)," one in green, the other in gray, both stamped with Warhol's name and his own. He was making Pop Art and post-Pop Art. Marcel Duchamp, along with Andy Warhol were of significant influence. Pettibone encountered their ideas at full force in Warhol's first gallery show (of the Campbell soup cans) at the Ferus Gallery in Los Angeles in 1962, and in Walter Hopp's legendary Duchamp retrospective, at the Pasadena Art Museum in 1963, the first held in the United States.Between 2005-2006 the artist had a retrospective of approximately 200 paintings and sculptures at the Laguna Art Museum, Laguna Beach,California and The Frances Young Tang Teaching Museum and Art Gallery at Skidmore College, Saratoga Springs.

Andy Warhol, Turquoise Marilyn, 1962 (left). Elaine Sturtevant, Warhol Licorice Marilyn, 2004

Another "artist" that has "appropriated" wholesale from other artworks was Elaine Sturtevant, who in the 1960s tried to reproduce, ‘as exactly as possible’,the works of her contemporaries, including Roy Lichtenstein, Claes Oldenburg, Jasper Johns, Frank Stella and Andy Warhol. She aimed to use the same techniques they used, and in some cases enlisted their aid: on at least one occasion, Warhol lent his screens for her copies of his silkscreen works. Sturtevant has said that in the 1960s, she usually allowed in one ‘mistake’ which distinguished her product from the original work. But in general, the results were very close to the originals.

Left: Roy Lichtenstein and Right: Elaine Sturtevant

Left: Sherrie Levine, After Walker Evans, 1981; Right: Walker Evans, Alabama Tenant Farmer's Wife, 1936

Sherrie Levine has produced a substantial body of photographic appropriations during the 1980s. For these works, she sought out reproductions of well-known works by artists such as Walker Evans and Alexander Rodchenko in art history books and catalogues, photographed the reproductions, and presented the resulting photographs as her own work.

In 2001 Michael Mandiberg created a web site,, which appropriates from Sherrie Levine’s many appropriations of the photographs of Walker Evans. Mandiberg took the same exhibition catalogue and scanned the reproductions of Evans’s works at high resolution to make them available on line. In the introduction to the website wrote:
In 1936 Walker Evans photographed the Burroughs, a family of sharecroppers in Depression era Alabama. In 1979 in Sherrie Levine rephotographed Walker Evans' photographs from the exhibition catalog "First and Last." In 2001 Michael Mandiberg scanned these same photographs, and created and to facilitate their dissemination as a comment on how we come to know information in this burgeoning digital age.

Here on you will find a browsable selection of these images. Links to the high-resolution exhibition-quality images to download and print out. Along with a certificate of authenticity for each image, which you print out and sign yourself, as well as directions on how to frame the image so that it will fulfill the requirements of the certificate. (...) This is an explicit strategy to create a physical object with cultural value, but little or no economic value.
The apologists for appropriation artists argue “Appropriation art” questions the notion of authorship! Contemporary postmodern art is all about ideas, and various expressions can build off similar sources. The appropriationists pointedly use the work of previous artists to make a new statement about the work and the surrounding world. Art historian Martha Buskirk writes, “The copy is . . . the basis for a conception of art-making in which artists incorporate increasingly subtle and layered references to the history of art as well as other sources (...) The daunting situation faced by the artist of the early twenty-first century is one in which all choices seem possible”, well! maybe that is so. Here is an idea for a budding appropriationist why not to frame a yesterday's copy of New York Times, or here is a new reference to the history of Walker Evans' photographed of the Burroughs, and subsequent appropriations. It's a new statement about the work and its surrounding digital world potentiality for appropriation .

The daunting situation faced by the artist of the early twenty-first century is one in which all choices seem possible!

Of course, some artists approach to appropriation is less "quasi-theoretical", and more artistic. As Jonathan Wakuda Fischer (known also as Wakuda,) an artist active in Seattle underground and street art movements, puts it:
"About appropriation. You can’t not do it. So do it well. If you’re just ripping off something for a profit, it will show."
Wakuda uses this technique in order to pay homage to classical styles of art, exploring Japanese Ukiyo-e woodblock culture, for instance. Exploring the real world historical instances which influence his art in different ways, he also uses the very medium to examine cultural methodologies. Going back to the stenciling, and exploiting its reproducibility, Wakuda experiments with ways to produce originality in the midst of repetition in "a very Japanese way of thinking".

So the questions is where to draw the line between appropriation and plagiarism?
In an article for Design Observer, entitled Bird in Hand: When Does A Copy Become Plagiarism? William Drenttel has argued that the January-February 2005 cover of STEP Inside Design featured a stock photograph by Marcie Jan Bronstein that was very similar to a photograph by Victor Schrageron that hung in his living room since 1998. He wrote:
The photographs are not exactly the same. The tonality is different, as is the deep-of-field. The hand and bird are more predominate in the Bronstein photograph. Nonetheless, there seems to be a deep similarity. What I cannot answer is why Marcie Jan Bronstein took this particular photograph, or others in this vein, and entered them into a commercial stock photography archive. Her source of inspiration is unknown to me.
He argued that ideas come from many sources in graphic design: they recur, regenerate, take new forms, and mutate into alternative forms. In the world of design and photography, there seems to be an implicit understanding that any original work can and will evolve into the work of others, eventually working its way into our broader visual culture. Drenttel concluded;
The charge of plagiarism is not a simple one. Malcolm Galdwell has explored the complexity of this issue recently in The New Yorker. Designers should take note: the idea of borrowing ideas is getting more complex everyday. Inherent in the modern definition of originality, though, is that ideas are extended, language expanded, and syntax redefined. Take a psychologist's ideas and experiences, as explained through the eyes of a journalist, and turn them into a play, a work of fiction — this is a work of complex "appropriation." I believe the design world benefits greatly from such an understanding of complexity.
The same idea is expressed by Douglas Crimp, in his Appropriating Appropriation (in Richard Hertz Ed. Theories of Contemprary Art, Prentice Hall Inc, USA 1985) who states:
Appropriation, patiche, quotation - these methods can now be seen to extend to virtually every aspect of our culture, from the most calculated products of the fashion and entertainment industries to the most committed critical activities of artists
Left: STEP Inside Design, Cover, Jan.-Feb. 2005. Right: Photograph by Victor Schrager.

Appropriation in art maybe defined as a broad replicating of certain aspects of an art object into a new work, relocating it into a new matrix. The history of appropriation in modern art may be traced to avant-garde movements aims at the turn of the twentieth century, with Marcel Duchamp appropriating ordinary objects, such as a bicycle wheel and a urinal, and put them on display as art in order to make a statement about the meaning of art itself.

The image on the left is an unidentified reference photo. On the right is Cézanne’s Bather(c. 1895).

On the left is a reference photo of the painter Eugène Boch. On the right is Van Gogh’s portrait of Boch (1888).
The image on the left is cropped from an 1890 photo by Henri Lemasson. On the right is Gauguin’s Mother and Daughter (1902).

In modern art, the Cubists, surrealists, pop artists, and others reproduced parts of an art or non-art object to explore various ideas, some could be regarded as artistically serious while others nothing more than junks. Robert Rauschenberg’s 1955 Satellite combines oil paint, fabric, paper, and wood on canvas with a sock and a stuffed pheasant (with missing tail feathers) has defined the very boundary of the two categories. The hideous appropriation work  was supposed to create a layered set of self-referential meanings, for the initiated. The artistic ones, such as Roy Lichtenstein appropriation of comic book imagery in many of his early paintings could communicate to its viewers, at a deep philosophical level, the elusiveness of meaning and reality.

For example, his painting Drowning Girl that was appropriated from a 1962 Tony Abruzzo panel in “Run for Love!, in DC Comics’ Secret Love #83" with an  ambiguous shortened caption “I don’t care!” now negotiates a new meaning for that chronic, disquieting feeling of the modern age, suggesting that the reality is deceiving and something not so good is about to happen. In the early 60s Andy Warhol went further and removed all traces of the artist's hand in the production of his work and isolated his image vocabulary down to the icon, brand names, celebrities, dollar signs. Repetition and redundancy of his large colour silk-screens evoked the mechanical reproduction of the image, mass culture, consumerism, and the pleasures of abundance and excess. Yet his work conveyed an elegant sense of aesthetics.

Andy Warhol, Campbell's Soup Cans, 1962, synthetic polymer on 32 canvases. Museum of Modern Art, New York.

In the late 1980s, renowned artist Jeff Koons was sued for creating a sculpture called “String of Puppies” from a black and white photograph by Art Rogers of a man and women with an arm full of puppies for use of greeting cards and other merchandise. Koons exaggerated small details of the copyrighted image, changing the puppies to blue and distorting the image of the couple holding the animals, and sold multiple copies for hundreds of thousands of dollars. After Rogers sued for copyright infringement, Koons claimed fair use by parody. The United States District Court for the Southern District of New York held that sculptor infringed photographer's copyright, issued permanent injunction and turnover order. There's no doubt however that Koons' work was artistic.

In 2013, Richard Prince won a lawsuit at the Second Circuit Court of Appeal against photographer Patrick Cariou. The issue was whether Prince was fairly appropriating images from Yes Rasta, a 2000 Cariou's book documenting his time with Rastafarians of Jamaica. A previous court case had found that his work was copyright infringement. Prince “admits to using at least 41 photos from Yes, Rasta”, according to the judge’s decision, but had claimed “fair-use” for transforming the original works, as opposed to creating derivative images. There's no doubt however that Prince's work was a piece of junk.

Left, a photo of a Rastafarian from Patrick Cariou's "Yes, Rasta" and, right, a painting from Prince's Canal Zone series

A more interesting case of appropriation is that of Shepard Fairey's Hope poster. Fairey was sentenced to two years probation in a U.S. District Court in Manhattan in 2012. Known for the "HOPE" posters he created during President Barack Obama's 2008 presidential campaign, Fairey pleaded guilty in February of that year to charges of criminal contempt, and admitted to destroying and fabricating evidence related to a civil lawsuit with the Associated Press. That lawsuit, which revolved around whether or not Fairey’s infamous poster based on an AP image violated copyright laws, was settled out of court in 2011. Fairey received his formal training at the Rhode Island School of Design, where he took several courses in photography and screen printing. After graduating, he worked as a screen printer, designer, and illustrator. He divided his time between graphic design projects commissioned by clients and his own art. Much of Fairey’s art has been characterized as havig a distinctive aesthetic, which he has described as a “bold iconic style that is based on stylizing and idealizing images.” Fairey's poster was artistically designed and elegantly executed.

In 1991, photographer Annie Leibovitz photographed actress Demi Moore, naked and pregnant, for the cover of Vanity Fair magazine. Paramount Pictures' advertising campaign for a movie called "Naked Gun 33 1/3: The Final Insult," was centered around a parody of that photo. The ad digitally manipulated Leslie Neilsen's face superimposed on the body of a naked and pregnant woman. Leibovitz filed a lawsuit against Paramount alleging copyright infringement. Paramount argued that the ad was a parody and a fair use of the photograph. The court verdict based on the elements of Fair Use was that the Paramount ad was a legally allowable parody. There's no doubt however that the poster was a piece of non-art.

The fundamental question that maybe posed is whether and under what circumstances it is appropriate for an artist to appropriate the intellectual property rights of another person. The appropriation of Cariou's images from Yes Rasta, for example, may be technically legal and may arguably not violate specific ethics codes, but true artists still face an ethical dilemma, are they appropriating intellectual property rights of another person? Of course, many of appropriated works fall into the category of ethical transgressions, whether from ignorance or malice. Artists that chose to appropriate the feature of another artists work have an obligation to openly address their objectives and participate in the debate about intellectual property and artistic freedom. As Marie C. Malaro states in her essay Deaccessioning: The American Perspective:
The law is not designed to make us honorable - only bearable - and therefore we often engage in some highly questionable conduct and yet stay within the law. The law however,does have clout. If you are found guilty of violating the law you must pay fines or you may go to jail.

Ethicks are adifferent matter. A code of ethics set forth conduct deemed necessary by aprofession to uphold the integrity of the profession. It sets a higher standard because it is based on principles of personal accountability and service to others. A code of ethics, however, frequently has no enforcement power. it is effective only if there is personal commitment and informed peer pressure.
In the final analysis the issue is not of finance, as Alexander Adams has argued
" In the opaque art market, the authenticity of an art object is the foundation of its financial value, yet this quality is contestable and subject to sudden change. Both Picasso and de Chirico on occasion repudiated their own paintings, leaving frustrated owners with genuine paintings that were hard to sell. In more recent years, work produced by assistants that has left artists’ studios under unclear circumstances has been considered “unauthorised” or “unapproved” rather than inauthentic. Today’s boundaries of art have expanded to encompass everyday readymade items elevated to the status of fine art by nomination alone and authentic paintings relegated to a hazily defined legal limbo of the unauthorised art object.
The issue, thus, is deeply personal, and can only be understood by the true artists and the genuine art lovers, and this is why the context of the third code from “Ethics for the Starving Designer” is so relevant:

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