Appropriation of a copyright is a type of plagiarism that applies to a work of art. Anytime you create a work of art—writing, music, computer coding, or other creative output—you immediately own the copyright for that work.
You are not required to file for a copyright with the United States Copyright Office to establish ownership (it automatically exists). However, filing for a copyright gives you the right to enforce the copyright in court.
A copyright is valid for your lifetime plus 70 years (other rules apply to older art and works created in other countries). During that time, no one else is allowed to use the work of art without permission unless the use falls within several categories that are considered valid exceptions. When art is appropriated, it has been used in a new work without the artist's permission. This may or may not violate the original artist's copyright.
What is appropriation art?
In the genre of art known as appropriation art, artists intentionally take another artist's work and change, build on, or modify it in their own work. The famous Campbell's soup art by Andy Warhol is an example of appropriation art. Campbell's owns the image on the can labels. Warhol took that image and incorporated it into his own work, creating something new and unique.
Artists freely admit being influenced by other artists—but you should be aware of the distinction between copyright violation and creative appropriation.
Fair use exception
One exception to copyright is fair use. Several types of fair use allow an artist to use another's copyrighted work. One common example is parody. Weird Al Yankovic has based his career on taking well-known songs and creating parodies, his own funny versions of the songs. This is one example of fair use. Other examples include news reporting, research, and criticism in which part of the original work is repeated. Appropriation art can also sometimes be considered fair use.
Courts have laid out four things to consider when determining whether a use falls under the fair use exception:
- Commercial use. Courts consider whether the appropriation of the artwork creates a commercial benefit for the new artist. It's one thing to take a piece of art and alter it and hang it in your own home and another thing to appropriate it and then sell it for millions of dollars.
- Nature of the work. Courts consider the nature of the new work. In the case of appropriation art, the new work is generally another piece of art.
- Amount of use. The amount of the original art that is used in the appropriation piece is also considered. If an artist took an existing photograph, cut out a section, and used it in their own new work, the amount of use is small. However, if a 20-square-foot photograph is used as the basis for a piece of art in which it is painted over, most or all of the work is used.
- Effect on the market. This factor looks at how the new use of the work affects the original work's market value. If the new work is truly transformative, it should have little or no impact on the original work's value. For example, if an artist makes T-shirts with her own designs, then a second artist takes those T-shirts and adds sequins in a few places, the sale of the sequined shirts will likely impact the sale of the original shirts because it is not transformative. This is the most important factor to consider when evaluating appropriation art.
Steps for appropriation artists
If you are an artist who wishes to appropriate someone else's art into your own work, the first thing to do is reach out to the artist and ask permission. The artist may grant you permission or may be willing to license the work to you for a small fee. This can help you avoid any legal challenges.
If you are not given permission, or do not feel comfortable asking for permission, the best bet is to make sure that your use of the original work is truly transformative. For example, if you took a copy of a Jackson Pollack painting and placed it on the floor, and created an interactive display of laser lights on the ceiling as an art installation, you aren't doing anything at all to actually transform the painting.
However, if you took the same painting and sliced it into one-inch pieces, and used a papier-mâché technique to create a polar bear out of them, that would completely transform the work. The more transformative the new work, the more likely it is going to be considered fair use if there is a legal challenge.
Artists have always been influenced by others' art. Making sure your work truly creates something new out of the old work is the key to avoiding a copyright infringement issue.
Copyright appropriation art FAQs
What is appropriation art and is it legal?
Appropriation art is when artists intentionally borrow, copy, or use existing images, objects, or cultural items to create new artwork. This practice can be legal under certain conditions, but the key factor is whether your new artwork transforms the original work's purpose or meaning. The safest approach is always to ask for permission first, but if that's not possible, your new work needs to clearly transform or critique the original in a meaningful way.
How does fair use protect appropriation artists?
Fair use is a legal exception that lets you use copyrighted material without permission in certain situations like criticism, commentary, and education. Courts look at four main factors:
- If you make money from it
- What type of original work you're using
- How much of the original you use
- Whether your new work hurts the market for the original
The most important thing is that your new artwork needs to serve a different purpose than the original. If someone could buy your art instead of the original work, you could have legal issues.
What makes a work "transformative" enough to avoid copyright problems?
A transformative work adds something new and changes the original's purpose, meaning, or message in a significant way. The transformation needs to be obvious and substantial, such as transforming commercial images to critique consumerism or turning photographs into completely different art forms. You should document your creative process and be ready to explain how your work comments on or critiques the original material.
Do I need permission to use copyrighted material in my art?
Getting permission is always the safest legal approach when using someone else's copyrighted work. However, permission isn't always required if your use qualifies as fair use, meaning it transforms the original for another purpose. Fair use is decided case-by-case by courts, so there's always some legal risk involved, and if you can’t guarantee copyright permission, you should document your artistic process or search to find the copyright owner.
How much of someone else's work can I use without getting in trouble?
There's no magic number or percentage that makes copying automatically legal. Courts look at both how much you used and how important that part is to the original. Using small, unimportant pieces generally works in your favor, while taking the heart of the work works against you. The amount you can use also depends on your purpose. If you're creating a parody or critique, you might need to use more recognizable elements so people understand what you're commenting on. But if you're just decorating your artwork, using any recognizable parts could be problematic.
What happens if my appropriation art competes with the original work's market?
If your artwork could replace demand for the original work or its licensed products, you'll likely lose a fair use defense. Courts care most about whether your new work hurts the copyright owner's ability to make money from their creation, so think about whether someone might buy your work instead of the original, or whether the original creator could have licensed their work for your type of use. If the answer is yes to either question, you need to be extra careful about making your work clearly transformative and serving a different purpose than the original.
What should I do to protect myself legally when creating appropriation art?
The easiest way to protect yourself is by getting permission from the copyright holder. Short of that, start by keeping detailed records of your creative process including explanations of why you're using specific copyrighted material. You also need to make sure your new work clearly serves a different purpose than the original. The more obvious your transformation and new message, the stronger your legal position. Remember that even if you believe your use is fair, defending yourself in court can be expensive and time-consuming.
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