Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
Last year, Andy Warhol lost an infamous copyright infringement lawsuit against photographer Lynn Goldsmith regarding an image of the pop singer Prince. The focus of the conflict was the meaning of “transformative works” in the U.S. Copyright Act—whether Warhol’s print is transformative of the original photograph so that it qualifies as fair use. Both the lower court and the appellate court considered aesthetic characteristics of the two pieces, but such analysis seems to miss the point. As an avant-guard artist of his time, Warhol used the mechanical process of copying to challenge the conventional notion of art. It also engaged critically with rising capitalist culture and pop culture in post-war America. In this sense, the act of copying is the very medium of Warhol’s art.
There seems to have always been tension between artistic creativity and copyright law. Copyright, in the simplest terms, is “the right to copy.” It protects the authors’ exclusive rights to reproduce and publish their creations. Artists, however, have long been engaging in deliberate and publicized copying as a form of artistic expression. The act of copying belongs to the long tradition of modernist art that questions the nature and definition of art itself. Terms like “ready-made” and “appropriation” appear in any introductory course to contemporary art. Besides Andy Warhol, other famous contemporary artists like Jeff Koons and Richard Prince have also faced copyright claims. To many artists, copying is of critical artistic value because the action “raises questions of originality, authenticity and authorship” and “exposes aspects of [the] making, circulation, and canonization” of art. Yet the current law of copyright cannot fully accommodate the sophisticated theories of contemporary art.
New technologies, such as virtual reality (“VR”) and augmented reality (“AR”) further complicate things. Because of pandemic restrictions, many museums and galleries now rely on new media technology to attract audiences. The blockbuster Leonardo da Vinci exhibition at the Louvre, Mona Lisa: Beyond the Glass, gave viewers an interactive VR experience to explore the painting and its context. In other cases, museums invited artists to create derivative works based on museum collections. For instance, the National Museum of Singapore invited the Japanese art collective, teamLab, to create an immersive installation using visual motifs from the museum collection. Similarly, Art Gallery of Ontario invited digital artist Alex Mayhew to create unexpected transformations of the old paintings collected by the museum using AR technology. Exhibitions like these provide audiences with refreshing experiences, but they also require museums to exercise copyright management and navigate the legal problems.
The power and resources enjoyed by large art institutions do not go unchallenged. In 2019, a group of renegade artists developed an app called MoMAR that mocked the iconic paintings by Jackson Pollock at the Museum of Modern Art (MoMA) in New York. Viewed through the app, Pollock’s paintings are either retouched or entirely replaced. The purpose of the artwork was to call attention to the power hierarchy and elitism in the art world. Although MoMA and the Pollock-Krasner Foundation stayed silent about the app, the paintings by Pollock are copyrighted and technically could give rise to an infringement claim. It would be interesting to see how copyright law would deal with artistic creations that were meant to be offensive or even illegal.
The authoritative nature of law seems to go against the inclination of art to break rules and challenge conventions. The law of “fair use,” or “fair dealing” in Canada, cannot satisfactorily address the questions raised by the changing practices of contemporary art. Luckily, the Supreme Court of the United States will further develop the law as it had decided to take up the dispute between Warhol and Goldsmith.