Taking

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Deviation Actions

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Copying can elicit strong emotions, but not all copying is wrong. While any perceived form of copying may be viewed as a personal attack, understanding when copying is permissible helps inform how we respond to copying.  Artistic practice and the law permit copying in certain instances. For example, copying is an accepted practice to perfect one’s technique and is used for all manner of reference when building an original image.

“Tracing” is a controversial topic in the art community. Some view it as a form of cheating, which inhibits artistic development. Technically, it can in many cases be copyright infringement. But tracing has a long history as a teaching tool. The Greeks, Romans, Egyptians and Chinese all used tracing. It is a useful method to absorb and pay homage to a grand master’s technique. Some drawing teachers encourage tracing.  Others feel that tracing inhibits the development of technique.

In some cultures, making a faithful and exact copy without tracing is considered an extraordinary artistic achievement. In other cultures, it could be considered forgery — a crime if the copy is passed off as the original and not a crime if the copy is simply sold without signature or representation of originality, assuming the original work isn’t still copyrighted.

At a certain level of abstraction, a lot of art is derivative. Take Raphael and Michelangelo. Raphael’s The School of Athens and the Stanze di Raffaello at the Vatican were heavily influenced by Michelangelo’s Sistine Chapel. Raphael’s own work became the subject of copying. His etching, Judgment of Paris, was copied and re-conceptualized by Manet, Monet, Picasso and many others. Did all these artists wrongfully copy each other, or were they innovating, building on the prior art or maybe showing their inspiration from a previous artwork?

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The law has never protected an artist’s idea from being copied.  But the literature is full of feuds, battles and personal attacks between artists because they believe someone “stole” or “copied” an idea. Common sense would be that no one can “own” an idea because if they did we would not be able to think. Still, because ideas seem so personal sometimes, taking the idea can be seen as very harmful.

“Appropriation art” is a genre of art based on copying someone else’s artwork without permission. Collage is one example. Another is “Pop Art,” which uses contemporary imagery to comment on modern culture.

Appropriation art is very controversial in the art and legal world. On one hand, transforming existing artwork can be a powerful way to comment on art and society. On the other hand, appropriation art may be viewed as a form of creative bankruptcy or theft.

With the advance of digital tools, like Photoshop, Illustrator, Word and many others it is normal to use the technique of copying together with manipulation either for reference, collage or as part of a multi-layered work. Copying with these tools is so common, pervasive and effective that it frequently becomes impossible to deconstruct how many instances of physical copying may have taken place in the ultimate final product.

Several famous appropriation artists, frequently taking advantage of technologies permitting copying and manipulation, originally got into trouble for copyright infringement, like Andy Warhol, Jeff Koons, Shepard Fairey, Barbara Krueger and Thierry Guetta (a.k.a. Mr. Brainwash). But the law is changing as are general attitudes, and appropriation art serves as a barometer. Jeff Koons, who was repeatedly held responsible for copyright infringement in the 90s, was let off the hook in 2006. Richard Prince, another appropriation artist, was absolved of copyright infringement in 2013 after producing multi-million dollar canvasses that used another artists’ photographs of Rastafarians. Why were the outcomes different years apart? Because in the more recent cases the artists were found to have “transformed” the original, giving it a new meaning and aesthetic. This notion has been incorporated into the interpretation of Fair Use under copyright law. Maybe, too, the law is reflecting that social standards about copying are changing.

The “transformative” approach is polarizing and not adopted into the law in many countries. Some say it’s very problematic because the standard seems very subjective. A copy is a copy and that, they say, is very simple. Without objective criteria, how is someone to know what is “transformative.” Others say the “transformative” approach encourages creativity and innovation; that it acknowledges the new technological advancements in image manipulation as part of the artist’s palette as well as recognizing that all artistic expression depends on prior art and common references to content. Artists should be encouraged, in this view, to transform existing artwork so we can gain new insights into our culture and ourselves.

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