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Artistic LicenseThe Philosophical Problems of Copyright and Appropriation$
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Darren Hudson Hick

Print publication date: 2017

Print ISBN-13: 9780226460109

Published to Chicago Scholarship Online: September 2017

DOI: 10.7208/chicago/9780226460383.001.0001

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Appropriation and Transformation

Appropriation and Transformation

(p.139) Eight Appropriation and Transformation
Artistic License

Darren Hudson Hick

University of Chicago Press

This chapter focuses on the particular case of appropriation art, a movement defined by usually unauthorized artistic borrowing in the creation of new works. In this chapter, I trace the embattled legal history of appropriation art and the suggested strategies for accommodating it within copyright law, culminating in the recent case of Cariou v. Prince. In one area of copyright—what is known at the derivative works right—transforming a copyrighted work into some new thing is treated as a presumptively infringing act, but in the fair use doctrine of U.S. law, such transformation gives substantial weight to a finding of fair use. After working through the several theories that have been offered for art appropriation and transformation, I offer a proposal that we treat appropriation art as presumptively fair in those cases where the new work expresses some idea distinct from that expressed in the work appropriated.

Keywords:   appropriation art, copyright, transformation, derivative works, fair use

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