rıfat şahiner writings

 

"An Attempt to Understand the Copy Artists’ Works in Term of Ethics"                                                             

Rıfat ŞAHİNER                                           

The “copyrights” or the “artists’ rights” have recently become one of the main issues of the contemporary art practice. In fact, this has brought about a debate over the “contexts” or “concepts” of the pioneering art works. In the postmodern era, a series of contemporary art problematics atrophied by the contradictory relations on dominant contexts and meanings through deconstructive attempts has been under debate. The most remarkable of these concerns the position of an author and his unique art objects. On the one hand, a group of artists, named appropriators or copy artists, have discussed the originality and authenticity of art objects while proposing a history of readings against Modernism. Some of them have also suggested a new point of view instead of masculine art history, which is reformed by the feminist sensitivities. Indeed, following the modern era, the post-modern art has been revealed in the processes of the global hyper-consuming, copying, and plagiarising in art objects. On the other hand, some art critics claim that by adopting such a practice the copy artists challange not only the legal copyrights but also commonly accepted ethical norms and the limits of plagiarism. Hence, one comes up with such far-reaching questions as: How can we analyze the copy artists’ works in terms of ethics? Does copyrights law redefine the significance of their works? How would the copyright laws resist changes in artistic practice? Is it possible to look at art works in terms of ethics now?

In this paper I want to discuss the way some artists challenge the modernist construction of an artist, and consider how the modernist legal position affects artistic discourses and practices by critically reviewing the contents of some of their works.

Appropriation as Artistic Genre

Image appropriation is an artistic genre that is often questioned for its originality and ethics. To appropriate means to take exclusive possession of, or to set apart for or assign to a particular purpose or use, both of which can be done with positive or negative intentions and results. The champions of this radical aesthetical stance defend the direct integration of images borrowed from different sources, original or secondary, into a new (original) work. The most extremist elements, on the other hand, claim that plagiarism, the fully fledged imitation of an original work, should be accepted as a legitimate artistic option. So what the spectator has to face here are explicit, intentional expressions of the old perverse idea that copying, even blatant reproduction, could and should be elevated to the status of artistic expression. Then what copy artists produce are, for example, exact copies of famous paintings, photographs of famous photographs or collages mixing and superposing well-known, authored icons.

According to Lynne Greenberg, a well-known critic, appropriationist artists do not only claim to be the most accomplished aesthetical incarnation of the structuralist dictum of “the death of the author”. [1] By deconstructing the fundamentally metaphysical pieces with which the legal doctrines of intellectual property are built, they also pretend to “undermine from the inside” the whole administrative apparatus of authors’ rights and copyright legal regimes. That is, appropriation art is not only sold as a definite break in aesthetics but also as the “most radical challenge to the copyright laws to date.

The Crisis of Originality and Authenticity in Postmodern Era

Appropriationism, which evolved in its last incarnation as a result of the dramatic social change of the 1980’s, contested the modernist canon. Appropriationists questioned the aesthetic values, of artistic criteria, and of art-historical practices of modernism. Appropriation art has freed the artistic expression, which had been boxed in the formalistic idea of novelty of avant-garde. It also has restored the pleasure of painting through the resurrection of forms. And it has drawn an argument on the possibilities of art form after modernism. The techniques of appropriation and repetition deny the autonomous originality forced at the time of making works. To make works of art are to enjoy the practices of art, genuinely freed from the sense of obligation to make original ones.

Figure 1. Richard Prince Cowboy Color photograph 1991-92

                (appropriated image from a Marlboro advertisement)

The methods of appropriation and repetition indicate that paintings are not inventions but are self-satisfactory ones. Artistic works remain in the world of self-satisfaction. Appropriation art does see the works of art not as the completed ones but as the progressive ones, through continuous repetitions and representations. The variations stemming from the arts of appropriation and repetition demonstrate the true novelty and the creativity in real sense. Appropriation and repetition have restored paintings which had been lost in the logics of modernism, and restored the autonomy of expression and sensibility and the tradition of art history which had been broken by modernism, too. Rewriting of appropriationists by means of copy displays that originality is false and paintings should be freed from the greed of authority of genius artists. It discerns the power and possibility of painting and makes art to be freed from the restorative formalism of modernism.

This genre is breaking down the traditional categorization of painting, photography, sculpture etc., and incorporating many of the “new media” types which rely upon such practices as digital sampling, eg. “computer art” and “sound sculpture”. The new “art” genres are no longer skills and practice specific but are delineated by their conceptual positions - one of those taken into consideration being direct confrontation with copyright issues. The presence of such artists and their mainstream acceptance does not just mean that "art" has changed, it also means that society has changed.

Figure 2. Louise Lawler Every Other Picture 1990 Cibach. 101x130 cm.

Appropriation artists’ works were not looked at as singular artistic expressions. The photographic images of artists such as Richard Prince, Louise Lawler, Cindy Sherman, Laurie Simmons, Allan McCollum, and Christopher Williams were "stolen" images that already existed. Most of them were circulating in the "low culture" of mass media, but sometimes the images were stolen from the realm of high culture in the case of Lawler and Levine. The artists had come across them while flipping through a magazine or watching TV, maybe startled by something in them, simultaneously disgusted and fascinated by the power of these images and the stereotypes they convey. The artists cropped them, re-photographed them, took them out of their original context, and reused them for their own ends.

Appropriators usually base their proposals on the ideas of the Post-structualist theorists such as Foucault and Barthes. Foucault’s and Barthes’s thoughts on the author and his art object, which define this process, are attacked with the very concept of objectivity and fixed meaning -especially in language or art work. In "The Death of the Author,"[2] for instance, Barthes asserted that the author (or artist) is never the source and the site of meaning, but rather that meaning is never invented, nor is it locked in. A work exists in a multidimensional space in which a variety of works, none of them original, blend and clash. The work is a tissue of quotations drawn from the innumerable centers of culture. The artist/author is no longer the only container for feelings, impressions, passions, but is rather "this immense dictionary from which he draws a writing (image) that can know no halt: life never does more than imitate the book, and the book itself is only a tissue of signs, and imitation that is lost, infinitely deferred." This position of refusal to find fixed meanings or originality in either the author/artist or their work is a fundamental refusal of what he regarded as an ossified and essentially backward looking humanism. "Since to refuse to fix meaning is, in the end, to refuse God and his hypostases-reason, science, law."

The slogan the “death of the author” condensed the core topics of the structuralist and early post-structuralist “pansemiologic” approach to literary hermeneutics and criticism which characterized the 1960’s: language as mechanic unconscious, writing as combinatorics, interpretation as decoding, etc. Below we will witness Michel Foucault’s already classical declaration of the disappearance of author and work, buried under the advance of “writing”:

“Today’s writing has freed itself from the dimension of expression. Referring only to itself, but without being restricted to the confines of its interiority, writing is identified with its own unfolded exteriority. This means that it is an interplay of signs arranged less according to its signified content that according to the very nature of the signifier. [...] Consequently, it is not enough to declare that we should do without the writer (the author) and study the work itself. The word work and the unity that it designates are probably as problematic as the status of the author’s individuality. Another notion which has hindered us from taking full measure of the author’s disappearance, blurring and concealing the moment of this effacement and subtly preserving the author’s existence is the notion of writing (écriture). When rigorously applied, this notion should allow us not only to circumvent references to the author, but also to situate his recent absence.” [3]

Figure 3. Mike Bidlo Not Duchamp's Bottle Rack 2000

The debate about these ideas and the aesthetic attitudes that grew out of the discourse led to appropriation, parody, and pastiche as critical imaging methods (key features of post-modernism). As we have seen, the unmediated appropriation exemplified by Levine and Bidlo's works has a transgressional political edge. In underlying the contradictory position occupied by the individual author, ever subsumed into symbolic structures that last longer, these artists pretend to be faithful to the classic dictum of Walter Benjamin: that the singularity of a work of art is inseparable from its insertion inside a longer tradition. Making intensive use of irony and parody, the ultimate aim of this art is to question the very possibility of continuing to talk about “original” works of arts, to keep attributing individual works to individual authors. Among the most famous cases is American painter Mike Bidlo’s appropriationes of Duchamp’s “Bottle Rack” or Picasso’s “Guernica”.

The Appropriationists after Duchamp

One of the most familiar examples of appropriation from the age of mechanical reproduction is Marcel Duchamp’s Fountain 1917. The famous attempt to recontextualize the mass-produced urinal was seen as a direct challenge to the authority of the Society of Independent Artists, the organization of which Duchamp was part. Duchamp’s strategies of appropriation, best exemplified in his ‘readymade’ sculptures, have influenced a number of artists throughout the 20th century. One of the most provocative is Sherry Levine. Her urinal cast in brass, titled Fountain (After Duchamp: 1), extends Duchamp’s critical gesture to address issues of commodification and gender. She, for example, has created a radical critique of originality (the hand of the artist) by rephotographing and thus "appropriating" in their entirety the works of other well-known artists such as Walker Evans, Edward Weston and Rodchenko, or Mondrian, and by signing the fabricated copy. Her Neo-Dada work has created a sensation and forcibly brought the issue of the copy into strong focus.

Figure 4. Sherrie Levine Fountain (After Marcel Duchamp) Bronze 1991

Levine's use of other artists' work to question "the copy" and "the original" recalls the issues raised by Duchamp when he exhibited his readymades in a gallery-objects not only made by machines, but produced industrially as multiples of an object. Duchamp had pointed out that the meaning and value of art is a constructed product of the mind and that changing the context of an object could create a new meaning for it and enable it to be seen differently through a different perspective. This act of appropriation and repetition indicates a kind of cultural exhaustion which has important shock value because it dramatically brings into focus major issues which normally lie below the surface, issues which need to be questioned. Seen in today's context, Duchamp's ideas, about appropriation, have gained fresh impetus by bringing up issues of the copy and the original, and the privileging of the object. Duchamp's ready-mades set an important precedent because they recontextualized and reoriented art away from its own identity as a form (as in Minimalism or Abstract Expressionism) towards the kind of instability and undecidablity of Postmodernism.

       

Figure 5. Sherrie Levine After Edward Weston (Neil) appropriated photograph 1981

Some of Levine’s works contain the photographs of the works of some famous 19th-century photographers such as Edward Weston (portraits of his son Neil) and Eliot Porter (the landscapes). She, in her artistic appropriation, challenges the notion of the proprietary nature of the imagination. It is true that Weston created that image, but why should he maintain eternal possession of it?  Why should that bit of "ideal" estate be forever turned into a representational sanctuary, fenced off for future use or speculation?  The fences are in mind only. Anyone can copy. The troubling question is why won't people appreciate as an equal the copy of the copy, when they appreciate the original which itself must be a copy?

This approach places her directly in conflict with copyright law. Copyright law promptly restores the images of the son to its paternal creator. In terms of copyright laws, the way Levine positions herself in relation to "her" work is irrelevant. According to "the law", the images belong to Weston, or rather to his estate. Levine would be free to “copy” the ideas present in the work, but she cannot appropriate his very expression of those ideas. In our classical sculpture. But what she cannot appropriate is Weston’s presentation of this style, his photographing of his son. In this sense, copyright’s reliance on “original” representation is a misnomer. That is,

It is only in the absence of the original that representation may take place. And representation takes place because it is always already there in the world as representation .. . The a priori Weston had in mind was not really in his mind at all; it was in the world and Weston only copied it.[4]

To make things even more puzzling, Rosalind Krauss, in her defense of Levine, tells us that Levine's activity is no more parasitic than Weston's. He, after all; Krauss concludes[5]; was borrowing the classic forms of order and representation of the past. Moreover, Weston with his camera produced an image, or copy, of something that had been constructed. Thus, Levine’s copy is nothing but the copy of a copy.

Hence, one can conclude that Levine’s photographic replicas challenge the status of the (typically male) artist as mythic genius. They have recently been appropriated yet again by an artist named Michael Mandiberg. It is in the digital readymades ‘authored’ by Mandiberg that one can see the shift from mechanical reproduction to digital replication and to an aesthetic of cloning. The websites created by Mandiberg in 2003 exist in two formats. One is titled ‘aftersherrylevine.com,’ and the other ‘afterwalkerevans.com.’ Nevertheless, both websites are the same. They depict the same images and display the same texts. On his websites Mandiberg expands on the notion of readymades. Enabling the website visitors to download and print the digital copies of the photochemically appropriated images, Mandiberg emerges as an example of the open-ended nature of digital images widely and freely available on the Internet.

His identical websites repeat the strategies of Duchamp and Levine. However, the digital nature of his project allows the viewer of the work to participate in the process of appropriation, and raises questions concerning the authority of the ‘original.’ When one can download and manipulate an iconic image such as the Walker Evans photograph, is the originality of the image maintained, possibly reinforced, or is it challenged through a shift in authorship? Does this process eliminate the physical and conceptual distance between the Evans’ photograph and Levine’s appropriation? Does it challenge or reinforce the authority of the artist or originality of art works?

Levine’s and other copy artists’ strategy involves problematizing the role of art and its relationship with law by exposing the historical and philosophical specificity of this front. To do this they infringe the copyright of others, even though to date they have been able to negotiate around litigation. By opening the values of "art" and "copyright " for critical appraisal they move toward restoring a “public” function for art in the sense that she makes a space for decision-making about “who we are” possible.

Copyright Law and Narrowing Originality

The issue of using copyright law to restrict an artistic genre has already been brought up in the parallel context of "appropriation art," a post­modern movement in the visual arts that grew alongside its theory. Moreover, recent statutory developments in copyright and author’s right laws (with the new legal protection granted to “hybrid” works, such as multimedia and digital works or software programs) have been explicitly devised to address the post-modern conundrums of “collective authorship” and work’s “intertextuality”.[6] In sum, traditional copyright laws, because of their disdain for the conditions of origination of the works and their interest in the conditions of circulation, have proved sufficiently “incoherent”, flexible and adaptable to counter the defiance of appropriationists. By focusing on the properties of the works such as its expected market value, the contents and future-oriented characteristics of modern copyright law assessment criteria, from the ontological point of view of aesthetics, might appear as “secondary” or “superficial,” as they have allowed to accommodate a growing population of newly protected works into a fragmented and self-dubious, authentically “post-modern” pieces of legal doctrine.

In terms of copyright laws, ap­propriators self-consciously borrow material from culture, mass media, and other artworks. They blur the line between originality and copying and highlight citation and quotation in artistic production. In so doing, they make the point that borrowing is inseparable from, and constitutive of, originality.[7] Given postmodern art's obvious challenge to copyright's author-originator model, such artworks are vulnerable to infringement suits and losing copyright protection themselves.[8]

Figure 6. Art Rogers Puppies 1980    

                 

 Figure 7. Jeff Koons String of Puppies 1998 Wood painted sculpture

Some critics saw "an indictment of the whole movement of appro­priation art"[9] in the 1992 case of Rogers vs. Koons.[10] Artist Jeff Koons had produced a sculpture, "String of Puppies," based on a copyrighted photograph. Koons claimed to work "within an artistic tradition of commenting on the commonplace,"[11] an appropriative tradition that "proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it." However, the Second Circuit Court rejected Koons's fair use defense that the sculpture was a legitimate social criti­cism of the effect of mass produced commodities and media images on society. The court held that to be a privileged parody, "the copied work must be, at least in part, an object of the parody; otherwise, there would be no need to conjure up the original work. Even if Koons's sculpture were a satirical critique of our materialistic society, it is dif­ficult to discern any parody of the photograph ... itself."[12] By this logic, the capacity of the work to be commented on art or modern society was not relevant to fair use analysis. To conclude, since much appropriation art does not lend itself to be understood as directly parodying the work appro­priated, the genre may run the risk of being suppressed by legal institutions.

Copyright laws may be used as a “superficial method” to assess the value of an art work and ultimately determine where to locate the whole credit for authorship. Mike Bidlo, for instance, is a copy artist who has painted and signed with his name dozens of full-size exact replicas of famous works by Cezanne, Matisse, Pollock, Lichtenstein or Picasso, which he has given titles such as “Not Pollock” or “Not Picasso.” If a legal sentence forbade painter Mike Bidlo to exhibit in public his replica of Jackson Pollock’s Blue Poles, he would reach an agreement with the heirs of the Spanish painter to allow the exhibition of the replicas in exchange for a fixed proportion to their sales price.[13] Ironically, in his replicas Bidlo’s primary aim is to interrogate the original master artworks of Modernism, but not to make money from them. Bidlo’s works pose such questions: When is a copy an original? And what is its market value in relation to the original?

In matters of aesthetics, the law is a laggard. This is particularly true when it is applied to art after Duchamp. As Henry Lydiate, one of the specialist lawyers, points out, though Marcel Duchamp’s readymades ‘convey and connote ideas and questions about the nature and content of art’, thankfully, ‘these conceptual issues are not protected by copyright law: contemporary artists have been stimulated and affected by Duchamp’s concepts, and have been free to appropriate all or part of them as they wish, and have done so’. Indeed, not only have his ideas stimulated artists ever since, they generated the entire genre of Appropriation Art in the 1980s: Sherrie Levine’s Fountain/After Marcel Duchamp,1991, one of a series of fetishised bronze versions of Duchamp’s urinal, proclaimed the relationship for all to see and understand: ‘It is something artists do all the time unconsciously, working in the style of someone they consider a great master’, she said in an interview in 1993. ‘I just wanted to make that relationship literal.’ Notwithstanding the fact that the ‘original’ Fountain of 1917, known only from the contemporary photograph by Alfred Stieglitz, has long since disappeared, it is difficult to see how, had he been alive, Duchamp could have sued Levine. In Duchampian terms, the law is irredeemably bourgeois in matters of authorship and its language traditional. As Henry Lydiate explains:

‘Since only original physical manifestations of an author’s ideas or concepts are protected by copyright law (say, the shapes, forms, configurations, perspective, colours, or lines of a painting) it is logical that copyright law requires those physical manifestations to be the author’s original – meaning that they must not be substantially derived from another author’s earlier original physical manifestation. In other words, authors become copyright owners of works only if they have been produced by their own – and not by use of another author’s – independent skill and labour; accordingly, they must not have copied from someone else.’ [14]

In any case, Duchamp would surely have been amused by the suggestion that he should have recourse to the law to protect his work, let alone his ideas. While in British law, copyright remains with the artist for his/her lifetime and with his/her estate for 70 years after the year of  the artist’s death, Duchamp believed that once made or designated in the case of a readymade, a work of art had, at best, a half-life thereafter of some 25 years and that it could not – indeed should not – outlive the artist because the original context in which the work was conceived would have changed so much that the work would effectively be rendered meaningless. In this he was, as so often, far more radical in his thinking than many of the most avant-garde of artists in his own time or since.

On the other hand, Andy Warhol’s attitude to authorship, as Lydiate demonstrated in ‘Attribution of Authorship’, was always more ambiguous. Warhol lived in less complicated times, at least in regard to intellectual property rights, as Jeff Koons has since discovered to his cost. Neither Gene Kornman, responsible for the publicity still for the 1953 film Niagara that was the source for Warhol’s ‘Marilyn’ silkscreens, nor James Harvey, who designed the Brillo box, sued the artist over copyright. It would be different today: specialist lawyers are increasingly called upon to help artists, designers, illustrators, etc. to negotiate the intricacies of copyright law, attempting to apply it in more subtle ways that more accurately address contemporary art practices. Yet, while it is painful, as well  as creatively and economically damaging, to have one’s work plagiarized, appropriated or otherwise misappropriated is recourse to the law the answer?

Conclusion

Each and every area of our lives has become embedded in the reproduction processes extending from tele-visual appliances such as television and video to infinitely multipliable photographic copies, from the developments in printing technology to the processing and distribution of images through computers. Undoubtedly, such a process can be countered by laws only to a certain extent. It becomes harder and harder to control this process by means of copyright laws whereby a sound or an image can be multiplied and distributed endlessly. Moreover, the issues of to what extent such a control mechanism is applicable and what purpose it really serves have now become controversial.

The artists, on the other hand, feel that current conceptions of copyright laws constrain and resist the development of critical artistic practices. To the extent that the law is successful in this role it is complicit in maintaining a function for art that is of questionable contemporary relevance. This underscores the need for law to acknowledge its foundational role in structuring and interacting with social relations and to acknowledge the need for sensitivity to changes in how people perceive, interrogate, and use/abuse artistic works. The legal system cannot generate respect for copyright law by simply resisting, redefining or ignoring changes in the function of art. Copyright law must be responsive to the broader context of these challenges.

Furthermore, no matter how extensively we analyze the process of appropriation in terms of copyright laws, one, in the final account, may consider this as an ethical issue beyond all legal arrangements. The fact that an immense number of visual and audial elements, which are so similar to their originals, are appropriated and used in various combinations, constitutes  one of the typical attributes of the contemporary aesthetics. The aesthetic applications, starting with Duchamp’s ready-mades and bringing forward the experience borne out by a work of art, have radically changed the position of an art object. Nowadays, many artists utilize copying strategy in order to question the functioning of the system and the positions of an artist and art work. Paradoxically (both because their work aroused so much controversy and because of their special postmodern relevance) it has been reproduced countless times, thus raising their market value. Nevertheless, the system not only absorbs all the criticisms coming its way, but also digests them in its body and puts them back on the market. Most of those protesting the artistic cult have long entered the art history. After all, their anti-art applications are already on the market with high price tags.  

Notes: