Nicole Smith

Professor Williams

AH497 Contemporary Art

15 December 2009

Questions of Authorship and Authenticity: Appropriation Art in Postmodernism

Throughout the twentieth century, a great number of artists have tested and

explored the numerous possibilities of appropriation, in its applications of both artistic

creation and as a means of social commentary. The 1970s however, saw a tremendous

change in Modernist ideologies of authorship, originality and authenticity as Postmodern

artists began to question the very foundational thoughts of formalized “high” art.

Originality was challenged as a necessity of artistic production and semiotic theory

propelled ideas of shifted meanings and communication through language and

representation. As these perspectives developed, the act of appropriation transformed

from an act of quotations or fragments, to art objects characterized by their complete, and

often unchanged, reproduction of preexisting material. Visual artists, such as Richard

Prince, Sherrie Levine and Jeffery Koons, pushed the ethical and legal limits of

appropriated images, as the validity of their creations rested almost completely in their

derivative nature. These artists, met with both legal actions and artistic criticisms that

disputed the authenticity of their works, utilized a means of artistic expression where the

very act of creation spoke of the ambiguity and insubstantiality of the role of the creator.

Of these artists, Jeff Koons was possibly one of the most notorious for his use of

banal images and readymade objects in sculptural structures. His art magnifies and

examines the barriers between images and objects considered trivial, such as vacuums,

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balloon animals and basketballs, and the formal creation of “high” art. Koons joined the

New York art scene in 1977 after graduating from the Maryland Institute College of Art,

opening his first one-man show in 1980 at the New Museum of Contemporary Art, NY.

For Koons, the creation of art “was a conceptual rather than a manual act” and many of

his works were the product his ideas surrounding preexisting images translated by

artisans into a finished form. 1 This method of art production was not unusual in light of

Minimalists and Conceptual art practices and theories of the twentieth century, however

it was Koons explicit use of appropriated images that set his work apart from avant-garde

and modernist ideas. Koons’s artwork was focused on the very principle of reused objects

and images and the ability of the artist to transform the meaning of these objects through

context. The underlying attitudes towards the idea of the original were shifted. The

distinction between “high” and “low” art forms was obscured and ideas of aesthetic

purity were abandon.2 Koons took these “low” art forms created pieces of art would he

sold for upwards of $100,000, a testament to the extremely ironic, and even the

scrupulous comments of his work had on the perceptions of the art world.

In November of 1988, the Sonnabend Gallery in New York City presented a

group of twenty sculptures by artist Jeffery Koons in an exhibition named simply,

“Banality Show”. The exhibition featured enlarged and exaggerated sculptural

representations of banal, or commonplace, images from popular culture. Among these

pieces was a polychrome wooden sculpture, which Koons titled String of Puppies,

1 James Traub, “Art Rogers v. Jeff Koons”, Subjective Reasoning, The Design Observer Group, 1992. Web. < http://observatory.designobserver.com/entry.html?entry=6467> 2 Abigail Solomon-Godeau, Photography After Art Photography, Art After Modernism: Rethinking Representation. Ed. Brian Wallis, New York: New Museum of Contemporary Art, 1984, pp. 75.

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depicting a couple with daisies in their hair sitting and embracing eight oversized blue

puppies. The image was one based on a picture postcard Koons had purchased in 1987

and sent to a foundry in Italy with the instructions describing the desired dimensions,

colors, materials and details of the sculpture. He oversaw its production, checking in

weekly to ensure that the sculpture would be “just like the photo”.3 The finished sculpture

did not in anyway acknowledge its source, an element that further amplified the ordinary

nature of the unnamed figures. Koons had four copies of the sculpture made, three of

which were sold for a total of $367,000 and a fourth, which was kept for Koons’s studio.

String of Puppies, successfully “transformed” a piece of banal mass produced cheap

merchandise into a work of “high” art.

In 1980 Art Rogers, a professional artist and photographer working generally in

Point Reyes, California, was asked to photograph a litter of German Shepard pups for a

client he had met several years before. Rogers accepted and spent hours finding the right

light, location and pose for the photograph, employing the pup’s owners James Scalon

and his wife. James Scalon had “commissioned Art so that the photograph would have

his genius — his special ‘magic’,” and he was not disappointed by the photograph Rogers

produced. 4 The Scalons agreed to have the image published in "The Point Reyes Family

Album” and in 1984, Rogers set an agreement with a card company to produce and sell

notecard and postcard prints of his Puppies photograph and others. It was not until may

of 1989 that Rogers received a call from James Scalon that directed his attention to a

“colorized version of the photograph” printed on the front page of the Los Angeles Times'

3 Kenly E. Ames, “Beyond Rogers v. Koons: A Fair Use Standard for Appropriation”, Columbia Law Review, Vol. 93, No. 6 (Oct. 1993), pp. 1473. Published by: Columbia Law Review Association, Inc. 4 Traub, “Art Rogers v. Jeff Koons.”

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Sunday calendar section. After some investigation, Rogers discovered that the

“photograph” was in fact a sculpture by Jeff Koons being exhibited at the Los Angeles

County Museum of Art. Rogers was outraged, finding that Koons had made no attempt to

contact him and had even less intent to compensate him for the use of his copyrighted

image and promptly sued Koons and his principal gallery, the Sonnabend Gallery for

copyright infringement.5 Although The Rogers v. Koons was not the first case was not the

first copyright dispute of its kind, it did represent a pivotal turning point in the way

appropriated art was viewed in light of legal ramifications and the laws ability to balance

appropriately the rights of the original creator, the interests of the viewing public and the

creative allowances of the appropriator.

Jeff Koons, “String of Puppies,” 1988, Polychrome wood, 42 x 62 x 31 ins. © 1988 Jeff Koons

5 See Rogers v. Koons, 751 F. Supp. 474, 480 (S.D.N.Y. 1990), aff’d, 960 F.2d 301, 303-05 (2d Cir.), cert. denied, 113 S. Ct. 365 (1992).

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Art Rogers, “Puppies”

© 1980 Art Rogers – Point Reyes

The Rogers v. Koons case lasted over four years from the initial suit in 1989 to its

close in 1992. Koons’s assertion to a defense of “fair use” was unsuccessful in both the

Southern District of New York and on his appeal to the Second Circuit. Koons defended

his actions as ones of artistic merit, crediting his association with the current American

school of artists “who believe the mass production of commodities and media images has

caused a deterioration in the quality of society,” therefore validating his quotation of

Roger’s copyrighted image into an art piece that “comment[s] critically both on the

incorporated object and the political and economic system that created it.”6 The courts,

however, did not award the fair use defense after finding that the dubious character of

Koons’s reproduction was beyond the protection of a fair use parody. The extent to which

6 See Koons, 960 F.2d 309.

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the sculpture was an exact reproduction of Roger’s photograph, the commercial nature of

the Koons’s work and the fact that Koons exhibited absolutely no intention to recognize

the original, all lead to Koons’s loss in court. Judge Cardamone of the Southern District

of New York commented that “it is not really the parody flag that [Koons was] sailing

under, but rather the flag of piracy.”7 The court decision brings up some fundamental

questions of the nature of appropriation and the application of fair use for cases of

appropriated works of visual art. The Doctrine of Fair Use, outlined in Section 107 of the

Copyright Act of 1976, provides that:

[T]he fair use of a copyrighted work, including such use by reproduction in copies

or phonorecords or by any other means specified in that section, for purposes such

as criticism, comments, news reporting, teaching…,scholarship, or research, is not

an infringement of copyright. In determining whether the use made of a work in

any particular case is a fair use the factors to be considered shall include –

(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for non-profit education purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the

copyrighted work.8

Koons’s defense fell short of almost all of these provisions. The nature of String of

Puppies, like all of Koons’s works, was extremely commercialized. In fact, the intent to

7 See Koons, 960 F.2d 311. 8 17 U.S.C. §§ 107.

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profit from these creations is one of the integral aspects of Koons’s works, since the irony

of the banal objects was their ability to become “high” art. The court also castigated

Koons’s bad faith in effacing the copyright notice on the back of the postcard before

sending it to the foundry that made the sculpture.9 The nature of the copyrighted image

worked against Koons whose actions seem to suggest that he only saw Rogers’ work as

mass-produced “junk”, instead of the professional livelihood of an artist. On December

10, 1990, Judge Charles Haight of the federal District Court in found Jeff Koons in

violation of the Copyright Act of 1976 and ordered that that four String of Puppies

sculptures be handed over. The judge agreed, "Rogers' photograph [was] a creative

work… not a ‘cupcake’, …[nor] a literal recording [of fact]; it was ‘charming’” and

therefore stood fast as a legitimate work of original artistic expression.10 Although the

case did not deny the same artistic expression of Koons’s art, the nature of String of

Puppies stand up under the fair use doctrine.

Koons’s loss in court, however, does not close the door on continuous

conversations concerning the merit and nature of appropriated art forms. The question

remains that “once we leave the lawyer’s office” can works of appropriation still be

viewed as legitimate, and compelling forms of artistic expression worthy of protection

and promotion?11 Art has, for most of its existence, fallen fundamentally under the act of

creating something new and original. Modern approaches to art, however, began to

remove the significance of the role of the author and instead place focus on the meanings,

or concepts of art objects, giving the viewer, or “reader” the most powerful and active

9 See Koons, 960 F.2d 309. 10 See Koons, 960 F.2d 309-10. 11 Krauss, pp. 13.

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role in art reception.12 Koons’s String of Puppies does exactly this, removing himself as

the manual creator and Rogers, completely. The transformation of Roger’s Puppies, from

a warm and sincere black and white photograph into a colorful, cartoon-like and almost

comical sculpture of the image increases Koons’s argument that his creation was indeed

parody and not fraud. In fact, it is this very question of style that, through an art historical

perspective, has legitimized copied works and images as original art. Arguably, style is

particular a form that cannot be stolen or consciously willed, giving the problematic

concept of style as a nonreplicable element of individuality.13 Koons’s use of

appropriation, although not granted by the courts, represents a body of artistic method

that has in the past five decade become commonplace among visual artists.

Appropriation, or the unauthorized use of part or all of an existing copyrighted

material in the creation of a work of art attributed to someone other than the original

copyright owner, has for centuries been a significant practice in the production of visual

art. Historically, the imitation and quotation of forms and images served as an essential

means of classical art study, as artists routinely copied technical skills and standards with

the ultimate goal of gaining and surpassing these standards in their own art.14 Even

Modernist art administered elements of appropriation in methods that employed their

own creative and individual style to transform preexisting images into something

“original”. Postmodern appropriation, however, pulled away from this adherence to

12 Ronald Bathes, “The Death of the Author”, Image, Music, Text, trans. Stephen Heath, New York: Noonday Press, 1977. 13 Roslind Krauss, “The Originality of the Avant-Garde: A Postmodernist Repetition”, Art After Modernism: Rethinking Representation. Ed. Brian Wallis, New York: New Museum of Contemporary Art, 1984, pp. 17. 14 Isabelle Graw, “Dedication Replacing Appropriation: Fascination, Subversion and Dispossession”, Louise Lawler and Others, ed. Philip Kaiser, Bagel: Kurst Museum Bagel, 2004, pp. 45.

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authorship and originality, spawning the emergence of entirely “unoriginal” forms.

Postmodernist ideology is characterized by its rejection of artistic traditions, the

utilization of new technology and materials as mediums, a focus on novelty, an advocacy

of international styles and universal representation and denunciation of the ornate and

decorative forms. Appropriation art of the 1970s to the present has taken this opposition

of artistic tradition to the next level, challenging the very principles of “originality,

intention and expression” in works of art.15 As shown in Koons’s String of Puppies,

taking a know image or banal object and replacing it in an altered context pulls the focus

from the visual image itself and directs it instead to the message behind it. The effect of

this contextual displacement in many cases creates a meeting point of both the primary

and secondary artists’ intentions. Postmodernist are distinguished from their predecessors

of conceptual and minimalists artists by their frequent quotation of previously existing

works, most often taken from popular culture, in the pursuit of finding meaning in the

processes of contemporary social atmospheres.16 The rise of media images and their

power to dictate society’s reality, prompted many postmodernists artists to work in

mediums and styles that directly commented on this consumer mentality.

Appropriation artists have always faced the negative connotation that comes from

working in a art method that completely abolishes the traditional “creative” role of the

author. In Rogers v. Koons, even though the String of Puppies sculpture was identified as

a work of art, it was still deemed an act of “piracy” and a direct violation of the

Copyright Act of 1967. Although use of the term “piracy” may seem harsh and even

15 Gerald Marzorati, “Art in the (Re)making”, ARTnews (May 1986), pp. 90-91. 16 John A. Walker, Art in the Age of Mass Media, Boulder: Westview Press, 1994, pp. 80.

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damaging to the merit of these artists’ defense, some appropriation artists strongly hold

claim to the term in characterizing their works, believing that “the act of taking” is the

most crucial element to the purpose of their works.17 During the 1980s, photographer and

artist Sherrie Levine was best known for her work which consisted of re-photographing

of famous Walker Evans photographs, and exhibition of the images as her own work

without any further manipulation. She exhibited these photographs in their unaltered state

as she created the art works for their ability to question questioning artistic originality;

the Estate of Walker Evans, however, saw them as a questions of copyright infringement,

essentially acquiring and confiscating Levine's works to prevent any further sale of them.

Levine made it known “that piracy, with its overtones of infringement and lack of

authorization, was the point.”18 Another series of Levine’s utilized the re-photographing

of Edward Weston photographs of his son. She consider her photographs worked as

stolen images of stolen ideas, as Edward Weston’s original photographs were in fact

based on recycled classical ideals of the male nude. While Levine’s act of “recycling” is

unquestionably more direct that Weston’s, her choice to reproduce what is already in its

nature a reproduction leads even further to her criticism on the idea of originality. By

Levine acknowledging the “piracy” of her works, Levine “explicitly deconstructs the

modernist notion of origin”.19 Her photographs, like Koons’s sculptures, add layers on

meaning to preexisting images, and in this way rely on the appropriated object from

which they are drawn. There is a balance between what is seen, or represented by the

17 Ames, pp. 1475. 18 Marzorati, pp. 90-91. 19 Krauss, pp. 29.

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Sherrie Levine, Untitled, After Walker Evans, 1980

visual art object itself, and what it constructed by its representation in an altered context.

Postmodern appropriation builds on the “aesthetic economy” of the interdependent

relationship between originality and repetition, which Rosalind Krauss identifies as

“valorized” versus “discredited” terms.20 In the case of Levine’s photographs, the idea of

an object being a copy of something is fundamental to the conception of its meaning,

since the object of art work is in fact Art itself and the artist.

20 Krauss, pp. 19.

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Other examples of appropriation art are less dependent on their original forms,

however, and are instead designed to comment on the society that consumes images, and

not the artists who create. Contemporary artists and art critics have recognized that the

influx of media images in the past century has unquestionably grown into one of the most

dominate agencies through which we construct our perceptions of reality, both

individually and as a society.21 Artists, such as Richard Prince, drew on recognition of

this social phenomenon in many of works, starting even with the birth of Pop Art, which

aimed to comment on the ideas of reality and authenticity. Richard Prince originally

studied as a figure painter, but began creating collages containing photographs in the mid

1970s. For some years he worked in New York for the Times Magazine’s tear sheets

department and found himself at the end of each day surrounded by nothing but the torn

out advertising images from the magazines. It is no surprise that these advertisements,

images of the unrelenting presence of media and power of corporate America, become

primary subjects of Prince’s appropriated art works. During the 1980s, Prince produced

photographic art works that directly appropriated “authorless” advertisements. These art

works included a series untitled re-photographed images of Marlboro cigarette

advertisements which were referred to as the “Cowboy” series. The “Cowboy” images

relocated the original form of the cigarette advertisements into a new context, a gallery or

art showing, unsettling the relationship between the image and its context and therefore

bringing new meaning to the image itself.

21 Ames, pp. 1480.

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Richard Prince, Untitled (Cowboy), 1989, Chromogenic print, 50 x 70 ins © Richard Prince

Walter Benjamin writes that “ the meaning of an image is changed according to what one

sees immediately beside it or what comes immediately after it,” suggesting that when a

viewer encounters a familiar image of mass culture, such as an advertisement, in a gallery

setting they will approach and examine the image in a completely different manner than

its original context would demand.22 His serial reproductions of stock images and

advertisements force the viewer to questions the normality of the figures and scene that

are being presented as an ideal reality. While the social commentary that Prince’s

photographs provide is clear, their validity as authentic art can still be questioned.

Prince’s manipulation of the advertisements was minimal, and as a self-proclaimed

amateur photographer, the skills required to produce the photographs is almost 22 Walter Benjamin, “The Work of Art in he Age of Mechanical Reproduction”, Illuminations, ed. Hannah Arendt, trans. Harry Zohn, New York: Schocken Books, 1969, pp. 220.

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inconsequential its artistic merit. Much like Sherrie Levine, Prince’s re-photographs

purposefully removed the significance of the hand of the author and into that of the

viewer. As an artist working in photographic images, the medium of Prince’s work was

also instrumental in its commentary on the nature of originality as “authenticity empties

out as a notion as one approaches those mediums which are inherently multiple.”23 The

effectiveness of Princes’ reproductions relied heavily on the role of the viewer and their

perception of the contextual positions of themselves and the image. Singularity was the

product of “the way these pictures register in the imagination” during the beholder’s

perception, a function of context over content.24 In this way, Richard Prince’s art acted as

commentary on the reality images themselves and the artists and consumers behind the

media culture.

In all three of these cases, the main objective of an appropriated art work seems to

remain the same. Koons, Levine and Prince worked in a variety of mediums, images and

forms, connected only by their focus on the familiar or know object. Their works

purposefully cross legal and ethical conventions in order to comment on the functions of

the art world, the significane of authorship and the power of the image in contemporary

society. Questioned legitimacy, or the challenging of what should be considered real or

authentic, is the force that drives these postmodern ideas. The verdict of the Rogers v.

Koons case suggests that the court rejected the idea that Koons convincingly fulfilled his

goal of creating a legitimate work of art with the ability to comment on it’s appropriated

source or society. However, courts have in many cases held reservation when making

evaluations of this type, as judicial authorities do not always claim confident sanction in

23 Benjamin,1969. 24 Krauss, pp. 24.

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judgments of contemporary artistic process.25 These reservations must not be ignored, as

the progress of art has never, and likely, will never, cease to the opinions of the masses.

Ames E. Kenly argues for the protection of appropriated art as a valid “form of criticism

and commentary”, saying that a fair use defense is necessary to “the development of

artistic expression.”26 And although, numerous forms and acts of appropriation (including

the early 19th century rise of collagists, Marcel Duchamp’s famous readymades, and Pop

Art of the 1950s) have for some time been integral aspects of Modernism, this does not

infer that art historical recognition of appropriation as legitimate should serve as an

ultimate justification of the borrowing or stealing of intellectual property in contemporary

cases. In fact, the very aim of modern copyright law is to protect the development of new

forms of expression and society’s changing perspective of ownership in a technological

and globalized world.27 Finding a conclusive balance between the rights of copyright

holders and the creative licenses of others is one left to case-by-case judgments. While

U.S. law attempts to keep up with the rapidly changing ideals of the art world, it can

never truly prepare for the next radical Koons, Levine or Prince the future may hold.

25 See Blestein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) in discussion appropriateness of copyrighted protection for graphic images. In his opinion, Justice Holmes offered often-cited words of caution in cases such as these: It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. 26 Ames, pp. 1476. 27 Ames, pp. 1479.