Art After Warhol

Abstract

Copyright laws, which generally prohibit copying, and contemporary art, which has increasingly come to rely on copying, is on a collision course—or so the traditional argument goes. This purported clash between the law and creative practice seemed to reach its apex in the Supreme Court’s recently-decided Warhol v. Goldsmith, which held against Warhol’s famous brand of unlicensed appropriations. The dissent, as well as much of the commentary published following the decision, warned that the Court’s holding will have existential consequences, striking at the very heart of the way that artists today have been raised to make and understand art.

This Article presents qualitative empirical evidence that calls into question the traditional argument. Through twenty extensive interviews with leading contemporary artists, museum curators, and gallerists, it highlights an art world grappling with the problematic politics and potential inequities in using others’ copyrighted works. Artists who engaged in appropriation (incorporating materials from other sources) often sought licenses or informal permissions—not because of any threatened legal consequences, but for ethical or moral reasons. Similarly, when artists took without asking, it was because they believed the purposeful appropriation of an image owned by a more powerful corporate entity was necessary for purposes of critique and commentary. Where artists were unable to use a particular image for legal reasons, they reported simply creating around the problem—in contravention to the traditional narrative of an art world stunted by copyright restrictions. This Article outlines how contemporary artists are working towards an ethics of appropriation almost entirely independently from the legal frameworks long assumed to incentivize or chill artistic innovation—and what that might mean for the law.

Keywords: intellectual property, copyright, art law, art, warhol, fair use, qualitative empirical