Appropriating copyrighted works: When is it legal?

When an artist uses a copyrighted work and creates something new, it can fall under a fair use exception in the law.

by Brette Sember, J.D.
updated May 11, 2023 ·  4min read

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.

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D., practiced law in New York, including divorce, mediation, family law, adoption, probate and estates,… Read more

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