Lawyers can fight for pretty much the rights, the justice (ideally) of nearly any subject from pharmaceuticals, corporate, criminal, divorce, and my favorite even art. It’s always a question of appropriation, what belongs to whom. In the case of art this is going to go way over anyone’s head because nobody has a clear definition of art (this changes all the time) and then there’s the issue of who owns the art.
Is it the creator? Does the artist really own the art since they really don’t have anything appropriated to the work of art once it has left the studio. In terms of appropriation there is such a thing as artist resale rights (or droit de suite in French the origin of the term) where the artist is allowed to claim royalties, a percentage of a final sale price when a public transaction has been made. However artist resale rights only exist in certain countries (not the USA mostly) so whether the art belongs to the original creator might depend on your nationality? Seems a bit manipulative.
Then there’s the artist gallery relationship. The artist produces the work, but the gallery representing the artist has some ownership rights over the work- they generally get a generous 50% cut of the final sale price for all the work they do to get the art noticed. But then if belonging changes through transactions if the art is bought then does the buyer then own the art? Is it an object with interchangeable rights dependent on that monetary exchange? Some people might even argue that art should belong to the people, this proletariat view seems to be easiest to fight for, but private viewing minimizes that belonging to the person with the biggest pocket book.
Let’s say art does belong to everyone, to the world, art is a child of the world and therefore is owned and belongs to everyone.
They also say beauty is in the eye of the beholder. Sometimes it’s argued art only exists to serve its when there is a viewer at hand (meaning art for arts sake belongs to itself.) This cliché statement poses so many problems for instance not all art is beautiful, aesthetics doesn’t imply beauty. If art is so subjective that belonging changes according to the viewer then appropriation of art is practically impossible- so why even fight about and create laws for it?
Then why is it whenever there is a conversation between artworks, if too much is ‘borrowed’ from one work a lawsuit of copyright issues arises?
Examples are Shephard Fairey and the Associated Press concerning the Obama Hope posters. The Associated Press is suing Fairey for copyright infringement among other things because he mass produced a picture originally owned by the AP without permission (with his artistic interpretation of course not the exact photograph) The truth is had his posters not made such a statement and if some small scale artist had done the same without as much exposure, conversation, money…it probably would’ve gone unnoticed and been treated as a compliment. Jealousy is a dangerous and vicious creature.
Then there is someone like Richard Prince where the work is mostly a collage of photographs from ads with recognizable brands and figures for these brands. He has been sued by many of the original ‘producers’ of these creative advertisements. He generally uses these photographs out of their original intent and context to create his own collages without of course demanding for the right to use them. But did these originals belong to anyone in the beginning?
It is true a lot of initial work goes into the creation of these photographs especially if a photographer has worked 10 years earning the trust of Rastafarians in the mountains to produce a body of work with a specific intent. But does it end there? Isn’t art about a conversation between already existing work of art, it would be limiting to have the appropriation end any potential discourse. Maybe influence and inspiration should be given credit and maybe explained a bit rather than claiming a whole work as completely original in every way possible.
Then there is what commission can do for appropriation. If a piece is commissioned, does the artwork then belong to the decisions of the pocket book owner? Richard Serra found this out the hard way when he filed a $30 Million lawsuit against the General Services Administration (GSA) for a sculpture he had created called “Tilted Arc” at the 26 Federal Plaza in Lower Manhattan and it was very site-specific meaning the creation of the piece was adapted and largely depended on its physical location. It wouldn’t make sense had it been transferred unlike a painting from one gallery to another. The GSA who had commissioned the work were adamant on changing the location, and unfortunately they got their way.
Art Law is growing segment for representing the rights of art in many ways. But the question is still more complicated that before because if you give art a primary holder, it’s meaning (which is already intertwined and convoluted) can be affected by simply giving it an owner.