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The appropriateness of appropriating appropriation art

Best practices for museums

One of the principal strands of post-modern art, “appropriation art” involves the incorporation of pre-existing images and objects into new works of art. The practice takes many forms. Artists such as Shepard Fairey – whose iconic image of Barack Obama became synonymous within the historic 2008 US Presidential Campaign – have made the appropriation of images and photographs without permission part of their artistic statement.

“HOPE” portrait: an example of appropriation art

Fairey used an Associated Press photograph taken by press photographer Mannie Garcia as the source for his colorful stylized portrait of then-candidate Obama emblazoned with the word “HOPE.” A self-described “street artist” whose aim is to “democratize” art, Fairey has found his work increasingly sought after by both collectors and museums. The Smithsonian’s National Portrait Gallery acquired one of three fine art versions of Fairey’s Obama “HOPE” portrait just in time for the Presidential Inauguration in January 2009. (Figure 1: Shepard Fairey unveils the Obama “HOPE” portrait at the Smithsonian National Portrait Gallery, January 2009.). A retrospective of the artists’ work – Shepard Fairey: Supply and Demand – featuring a second fine art version of the portrait opened in February 2009 at the Institute of Contemporary Art in Boston, Massachusetts, and has since traveled to The Andy Warhol Museum in Pittsburgh, Pennsylvania, and the Contemporary Arts Center in Cincinnati, Ohio. Meanwhile, the Obama “HOPE” portrait has become the subject of a high profile copyright infringement lawsuit involving Fairey, the Associated Press, and Garcia.

How should museums handle this legal and ethical issue?

Acquisitions and exhibitions of works of appropriation art pose puzzling legal and ethical issues for museums. While a great deal of attention has been given to the appropriateness of acquiring and displaying works with a questionable past – works with Nazi-era provenance, illicitly acquired antiquities, and objects of national cultural heritage in particular – the museum profession has not adequately considered the implications of dealing in works such as Fairey’s Obama “HOPE” portrait which may infringe on the intellectual property rights of others.

This is particularly surprising given both the potential legal liabilities inherent in dealing in infringing works, and perhaps more importantly the fact that museum ethics codes, including the well established Code of Ethics for Museums promulgated by the American Association of Museums, counsel museums to handle competing claims of ownership “openly, seriously, responsively, and with respect for the dignity of all parties involved.”

While one can reasonably debate the appropriate scope of intellectual property, including whether exceptions to intellectual property protection such as the copyright “fair use” exception should be extended to certain types of appropriation art, the purpose of this paper is to initiate a discussion about the ethical obligations of museums with regard to the acquisition and display of potentially infringing appropriation art. These works are often created with the express intention of engaging the viewer in a debate about the nature of artistic freedom of expression and the role of intellectual property in the creation of art and culture. They do so, however, at the expense of the personal property rights of others.

The fundamental question to answer here is whether and under what circumstances it is appropriate for a museum to acquire or exhibit a work which may violate the intellectual property rights of another person. The acquisition and display of the Obama “HOPE” portrait, for example, may be technically legal and may arguably not violate specific ethics codes or museum acquisition and exhibition policies. Even so, museums that deal in such works still face an ethical dilemma. To borrow a phrase from the cultural property debate, this ethical dilemma, which involves the conflict between the appropriation artist’s rights and the rights of those whose work is being appropriated, can be summed up by the phrase “whose rights?” Whose intellectual property rights should the museum protect, and to what extent?

Whose rights should be protected?

Museums that acquire and display works of appropriation art seem hesitant to openly address the difficult ethical questions these works pose. Museums that are not prepared to address these ethical questions should defer to the legal process and avoid acquiring such works until all potential legal claims and ethical concerns are resolved.

Museums that chose to acquire and exhibit such works have an obligation to:

  1. Openly address their role in the debate about intellectual property and artistic freedom
  2. Structure the transaction in a way that clearly protects and respects the rights of all putative rights owners

How the question of “whose rights?” is answered by a particular museum may depend on how it interprets its mission and purpose – as a protector of individual rights or as an advocate of artistic freedom. In either case, the question of whose rights should be protected deserves serious consideration by the museum profession.

Case study: Shepard Fairey’s Obama “HOPE” portrait

The Obama “HOPE” portrait designed by Shepard Fairey has become synonymous with the 2008 US presidential campaign. The image consists of a stylized stencil portrait of then-Senator Barack Obama in muted tones of red, beige, and dark blue, with the word “HOPE” below and a small image of the official campaign logo – a circle and horizontal red and white stripes across the bottom half – above the letter “E” in the word “HOPE.” The Obama “HOPE” image was printed on posters and distributed for free at campaign rallies. A downloadable version was posted on Fairey’s website. The image quickly went viral, spreading spontaneously through social media and word-of-mouth.

By October 2008, Fairey claimed to have printed 300,000 posters and more than one million stickers. Clothing and other items decorated with the image were sold on Fairey’s website. Parodies and imitations of the design appeared. Fairey was commissioned to produce other works in the same style, including a cover for the “Person of the Year” issue of Time magazine. (Aronon 2009).

Fairey created the Obama “HOPE” image by appropriating a photograph of Barack Obama found through a Google image search and manipulating it using computer graphics software. Fairey did not make any attempt to obtain permission to incorporate the photographic image in his own work. Through the use of image-identification software, a computer hobbyist identified the source of the image as a photograph of then-Senator Barack Obama taken by Associated Press photographer Mannie Garcia in April 2006 at the National Press Club. (Garlish 2009).

Both the Associated Press and Garcia have asserted copyright infringement claims against Fairey. The Associated Press claimed in January 2009 that Fairey owed it credit and compensation for using the photograph. Fairey responded by initiating a lawsuit in February 2009 seeking declaratory judgment on the question of copyright infringement, asserting that his use was covered by the “fair use” exemption of the US copyright law. The Associated Press counter-sued in March 2009. The Associated Press alleges Garcia took the photograph while he was an employee. Garcia also joined the lawsuit, asserting that he was a freelance photographer at the time he took the photograph, that the Associated Press “work-for-hire” agreement does not apply, and that he, not the Associated Press, is entitled to credit and compensation from Fairey. (National Press Club Photographers Association 2009). Both the Associated Press and Garcia have registered copyright in the photograph. Fairey has registered copyright in the “HOPE” image. (Hellel 2009).

Getting the story straight

Fairey initially claimed he used an alternative image – one including the actor George Clooney – taken by another Associated Press photographer at the same event, as his source image. However, in October 2009, on the eve of the opening of Shepard Fairey, Supply and Demand at The Andy Warhol Museum, Fairey admitted that he had lied about which photograph from the Associated Press he used as his source, and then covered up evidence to substantiate his lie. (Robbins 2009).

He also admitted to using the image taken by Garcia, the form of which is nearly identical to the Obama “HOPE” image. (Culture Monster 2009). His admission caused his pro bono lawyers at the Stanford Fair Use project to withdraw from the case. Fairey is facing a court imposed fine for his false submission. A criminal investigation into charges of perjury and tampering with evidence has also been initiated. At the time of this writing, Fairey vs. the Associated Press remains in the discovery stage. (Robins 2009).

Fairey defends his use of the Garcia photograph on the grounds that he was not obligated to obtain permission from the copyright owner under the legal doctrine of “fair use”. In a statement released in response to the Associated Press claim, Fairey asserted that he did not need permission “to make an art piece using a reference photo” and suggested that if the Associated Press prevails in their lawsuit “every Obama art (or any other politician) that was based on a photo reference that was not licensed would be rendered illegal.” (Fairey 2009).

Since the end of the Presidential campaign, Fairey’s work has attracted an increasing amount of attention. Just weeks before the Presidential Inauguration in January 2009, the Smithsonian’s National Portrait Gallery announced it had acquired a version of the Obama “HOPE” portrait as a gift from Washington D.C. art collectors Heather and Tony Podesta. The work, a stencil and hand-drawn illustration over a collage of newspapers, is one of three original fine art pieces created by Fairey based on the Obama “HOPE” image circulated during the campaign. (Smithsonian National Portrait Gallery 2009a).

In a podcast posted on the National Portrait Gallery website, Fairey explained he obtained permission from the Obama campaign to use the candidate’s image but the campaign had expressed concerns about the use of the underlying photograph without permission. (Smithsonian National Portrait Gallery 2009b). In a second podcast, the National Portrait Gallery’s Deputy Director, Dr. Carolyn Carr, stated the image was “originally appropriated from a photograph,” and likened the work to a Matthew Brady photograph of Abraham Lincoln also in the National Portrait Gallery collection. (Smithsonian National Portrait Gallery 2009c).

Part of the Smithsonian Institution, the National Portrait Gallery is authorized by federal statute to collect images of people “who have made significant contributions to the history, development, and culture of the people of the United States.” (United States Laws, 20 USC Chapter 3, Subchapter III). Acquisitions by the National Portrait Gallery are determined by the National Portrait Gallery Commission based on recommendations from the National Portrait Gallery staff.

In email correspondence with the author on September 2, 2009 regarding the National Portrait Gallery’s acquisition policy and the acquisition of Fairey’s Obama “HOPE” portrait, Dr. Carr explained the “significance of the subject is of paramount importance… From our collecting point of view, this was THE campaign image. It was ubiquitous.” When asked whether the National Portrait Gallery had considered the implications of its acquisition from an intellectual property rights perspective, Dr. Carr declined to comment further, citing the ongoing litigation. To what extent the issue of intellectual property rights in the Obama “HOPE” portrait, or the fact that copyright ownership in the work was in dispute, was considered as part of the National Portrait Gallery’s acquisition decision-making process is unknown.

In addition to the National Portrait Gallery acquisition, a retrospective exhibition titled Shepard Fairey: Supply and Demand, featuring a different fine art version of the Obama “HOPE” portrait, opened at the Boston Institute of Contemporary Art in February 2009. That version of the Obama “HOPE” portrait has since travelled as part of the retrospective exhibition to The Andy Warhol Museum in Pittsburgh, Pennsylvania and, at the time of this writing, is on display at the Contemporary Arts Center in Cincinnati, Ohio.

The fact that the Obama “HOPE” portrait is the subject of an ongoing copyright infringement lawsuit is not mentioned in the traveling exhibit or as part of the National Portrait Gallery display. The underlying rights in the appropriated image are not publicized in either case. To the author’s knowledge, none of the acquiring or exhibiting museums have publicly addressed the issues raised by the copyright dispute or offered any public programming on the topic. In a telephone conversation with the author on March 18, 2010, Eric Shiner, Curator at The Andy Warhol Museum, explained that hosting a symposium in connection with the exhibition on the intellectual property rights issues raised by the Obama “HOPE” portrait was discussed but the idea was not acted on.

Appropriation art and intellectual property law

Incorporating the work of others into a new work is central to post-modern appropriation art. While appropriation in art has a long history, the term “appropriation art” came into common usage in the 1980s when artists such as Sherri Levine began to address the act of appropriation itself as a theme in art. (Owens 1992). Appropriation art borrows images and ideas from popular culture, advertising, mass media, other artists, and elsewhere, and incorporates them into new works of art. From the artists’ perspective, the act of appropriation is an essential part of the artistic process and intellectual property protections unduly restrict the artist’s ability to draw inspiration from our shared cultural heritage. Shepard Fairey, for example, has emphasized the importance of “democratizing” art so that everyone can have access to iconic cultural images. (Fairey 2009). Legal protections which impose restrictions on the use of such images to protect intellectual property rights are considered a threat to artistic freedom and an impediment to cultural dialogue. From the perspective of Western forms of intellectual property law, however, the intentional appropriation of a protected work without permission is illegal. Legal scholars William Landes and Richard Posner have noted that “the very term ‘Appropriation Art’ is a provocation; “appropriation” of protected work connotes stealing.” (Landes and Posner 2003, 261).

Intellectual property laws govern rights in a wide variety of creative works. In addition to copyrights, trademarks, patents and trade secrets, personal property rights, including the right to publicity and the right to privacy, can conceivably be subject to appropriation in a work of art. Certain intellectual property rights are recognized under common law while others have been created by statute. In some cases, common law principals – such as the right of privacy – have been supplemented by statutory enactments, such as California’s laws protecting celebrity publicity rights. (Astaire Celebrity Image Protection Act 1985).

Common law and statutory legal protections afforded to intellectual property vary from country to country. These differences reflect how different cultures view the creative process and its relationship to cultural property. For example, so-called “moral” rights, which address the inherent relationship between an artist and their creative work, are recognized in a number of European countries, but are not, except in a very limited set of circumstances, recognized under US law. 1 Some forms of creative content have generally not been recognized under Western concepts of intellectual property law. Concepts of communal copyright ownership practiced by indigenous groups, for example, are difficult to reconcile with traditional notions of intellectual property rights. The appropriation of native ceremonies, music, and graphic arts has been the subject of intense political debate in recent years, and some countries have begun to recognize intellectual property rights in cultural heritage. The effort to expand intellectual property protections to cultural property illustrates the tensions that exist between individual property rights and artistic freedom – that is, how to balance exclusive rights to creative content and democratic principles of freedom of expression. (Brown 2003).

To the extent rights to the image appropriated in a work of appropriation art are not protected under applicable intellectual property laws, legal concerns about infringement are not at issue. Under US copyright law, for example, certain works, including ideas, lists, directories, data bases, and exact photographic records of artistic works, do not contain the requisite elements of tangible expression or originality necessary to fall within the scope of US copyright laws and, as such, are inherently outside the realm of copyright protection. 2 Other works are deemed to have entered the “public domain” – that is, due to the passage of time or a failure to follow certain formalities, copyright in the work has expired and the work is no longer entitled to statutory or common law protection. Changes in US copyright law have greatly reduced the number of new works automatically entering the public domain.3 Works in the public domain are subject to legal appropriation – that is, they may be lawfully appropriated without permission.4 Where protectable intellectual property rights are concerned, however, the law does not give an artist (or anyone else for that matter) any special privilege to use a protected work without first obtaining permission from the rights owner. Artists who intentionally misappropriate protected works are consciously creating illicit works which cannot be distributed and exploited through legitimate commercial channels.

While there is a legal requirement to obtain permission to appropriate a protected work, there are exceptions under specific intellectual property laws. Two exceptions to the application of copyright protection under US law are of particular relevance to the museum acquisition and exhibition of appropriation art: the “fair use” exemption and the “public display” right.

  • Fair use – called “fair dealing” in Canada and the UK – is intended to ensure that rights of free speech and expression are not unduly curtailed by the exclusive protections granted to copyright owners. Fair use is generally allowed for limited “noncommercial” purposes such as news reporting, teaching or education, and scholarship and research. The “fair use” exemption attempts to reconcile these competing public and private interests by placing a limit on the ability of the copyright owner to enforce its exclusive right to control use and reproduction of the work.5 (United States Copyright Act, 17 USC §107).
  • Public display – particularly applicable to museums – the right allows the owner of a tangible copy of a work otherwise subject to copyright protection to display that copy of the work without the consent of the copyright owner.6 (United States Copyright Act, 17 USC 109(c)). As a result of the “public display” right, a museum may exhibit a work in which it does not own the copyright without permission of the copyright owner as long as the copy was originally made with permission of the copyright owner. Whether a lawfully made work which embodies an infringing work – such as the Obama “HOPE” portrait – satisfies the “lawfully made” requirement contained in the “public display” exception appears to be an open question. The “public display” right is extremely limited and is generally interpreted to apply only in situations where the viewers are present in the same physical surroundings as the tangible copy. Importantly, it only applies to copyrights and only to exhibition rights of the copyright owner. It does not apply to other intellectual property rights, such as the performance of intangible works or to rights of privacy or publicity. While the “public display” right is a statutory right under American law, it is not universally recognized.7

There are no exceptions directly comparable to the “fair use” exception and the “public display” right under other intellectual property laws. Thus, for example, the use of a trademark in a publicly displayed work could conceivably infringe on the trademark owner’s rights depending on how the trademark is used. 8 Similarly, no “public display” right is available where personal rights, such as the right of publicity or the right of privacy, are implicated.

For example, a photographic work might contain an image of a private person in a compromising situation. Absent permission from that person, a museum that displays the work could be held liable for invasion of privacy, defamation, or other applicable torts. The public display may also violate other applicable laws, including laws prohibiting dealing in child pornography. 9 While the “public display” right may permit a museum to display an otherwise infringing work without first obtaining the consent of the imputed copyright owner, by doing so the museum may be at risk of a contributory infringement claim.10 In addition, if the infringement claim is successful, the museum could conceivably be required by the court to relinquish control over the display and disposition of the work.11

Of the principal strands of postmodern art, appropriation art has proved to be the most problematic from an intellectual property law perspective and has generated the most litigation. Works by notable artists such as Andy Warhol, Robert Rauschenberg, and Jeff Koons have been the subject of intellectual property disputes. 12 Other artists, such as Sherri Levine, David Salle, Susan Pitt, Richard Prince, and, most recently, Shepard Fairey, have made the incorporation of copyrighted works in their own works without permission a central element of their artistic statement. These unpermitted uses may violate intellectual property laws and, by doing so, put museums interested in acquiring and displaying these works in a difficult legal position. As a practical matter, museums go to great lengths to shift the risks associated with the acquisition and display of such works though the use of warranty provisions and indemnity language in their purchase and loan agreements.

Understanding the applicable ethics codes and policies to acquiring and displaying appropriation art

Ethics codes establish the conduct considered essential in order to uphold the integrity of a profession. In Why Ethics? Marie C. Malaro explains the relationship between laws and ethics codes: “The law, as a rule, sets a lower standard than that required by ethical codes, but the legal standard has clout.” Ethics codes represent higher standards accepted by the profession as a whole, but they generally have no enforcement mechanism other than the possibility that failure to live up to them may damage one’s standing within the profession. (Malaro 1994, 17). Legal requirements and ethics codes are both standards of conduct. As such, they reflect established norms rather than enlightened ethical conduct.

As public trust institutions, museums operate in a world that is as much, perhaps even more so, governed by the court of public opinion as opposed to the court of law. Museums both reflect the societies in which they exist and the aspirations of those societies. Their reputations depend on maintaining the highest ethical standards. As such, museums must weigh the ethical implications of their actions to a far greater extent than their private counterparts – including dealers, collectors, and donors. They also must constantly revisit the adequacy of adopted standards to ensure they reflect current ethical concerns.

Of the many types of ethical issues museums face, John Henry Merryman has identified two categories: governance ethics (those involving conflicts of interest, self-dealing and misuse of insider advantage) and acquisition ethics. Acquisition ethics, Merryman explains, “responds to the possibility that objects under consideration for acquisition may have been stolen, improperly excavated or illegally exported.” While the parameters of the debate over governance ethics are fairly well established, Merryman notes in the realm of acquisition ethics, the “terms of discourse and the definition of issues are still fluid and the probable nature of an eventual resolution still clouded.” (Merryman 2006). The fluid and nebulous nature of acquisition ethics is in large part due to the fact that these situations typically involve legitimate competing interests.

Chief among the issues, still hotly debated by museums under the rubric of acquisition ethics, are questions pertaining to works of art with Nazi-era provenance, illicitly acquired antiquities, and objects of national cultural heritage. The ethical concerns surrounding these types of collections are familiar to museum professionals. Although the factual circumstances giving rise to these ethical concerns differ, they share a commonality in that the works in question have been, or are susceptible of being, looted, stolen, or otherwise taken without the permission of the imputed owner. In each case, the rights of a third party are implicated. Similarly, in the context of appropriation art, the rights of the owner of the appropriated intellectual property have been infringed upon by the appropriation artist.

While these works may have been acquired on technically legal grounds, it is the way they became available for acquisition that raises ethical concerns. Often the legal technicalities involve applicable law in a given jurisdiction, such as is the case with import and export laws, statutes of limitation, and the like. The nature of the evidence and the degree of proof necessary to demonstrate the provenance of the work is subject to debate. However, there is general agreement that museums should not condone or promote illegal or unethical behavior, and that by acquiring, exhibiting, or otherwise trafficking in works which may have been improperly acquired, museums are perpetuating the wrongful acts associated with these works. It has also been argued that by dealing in such works museums contribute to or encourage illicit activities. (Gerstenblith 2008). Similarly, in the case of appropriation art, the role of the museum in facilitating illegal appropriations must be considered.

In response to concerns about acquisition ethics in particular collecting areas, key museum associations, including the International Council of Museums (ICOM), the American Association of Museums (AAM) and the American Association of Museum Directors (AAMD), have all provided general guidance with regard to acquisitions practices. They have also promulgated specific policies to address the acquisition of works with questionable provenance in specific collecting areas, including works with Nazi-era provenance, archeological objects and antiquities, and objects of national cultural heritage. These policies reflect the ethical principles on which there is general agreement by museum professionals. As such, they offer guidance on how museums interpret their ethical obligations. A review of existing ethics codes may help inform museums on how they should address the ethics of acquiring and exhibiting works of appropriation art.

In Ethics of Acquisitions, 1970, the International Council of Museums (ICOM) expressed the fundamental principal that “there must be a full, clear, and satisfactory documentation in relation to the origin of any object to be acquired.” The obligation to conduct thorough provenance research would seem to apply equally to the origin of any work incorporated into another work, such as is the case with works of appropriation art. Where a work which may be entitled to intellectual property protection is incorporated into another work, this should be clearly documented and disclosed.

Museum best practices for appropriation art

The AAM has promulgated a variety of standards and best practices which bear on the acquisition of works with disputed ownership. These standards and best practices address three interconnected principals:

  • the provenance of the work;
  • competing claims in the work;
  • museum stewardship.

The AAM Code of Ethics for Museums stresses the importance of ownership rights, declaring that “[s]tewardship of collections entails the highest public trust and carries with it the presumption of rights to ownership…” and specifically recommends that “competing claims of ownership that may be asserted in connection with objects in its custody should be handled openly, seriously, responsively and with respect for the dignity of all parties involved.” In addition, the AAM Best Practices for Collections Stewardship emphasizes the importance of taking “appropriate measures to protect against possible risk and loss” and states that accredited museums are expected to “legally, ethically, and responsibly acquire, manage, and dispose of collection items…” These principals appear to be equally applicable to the issues raised by the acquisition and exhibition of works of appropriation art which may infringe on the intellectual property rights of others.

The principal museum associations have also promulgated guidelines with regard to specific collecting areas which have proven particularly problematic from an ethical perspective. For the most part, these guidelines establish unequivocal prohibitions against dealing in works with questionable provenance. For example, the AAM Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era states that “If credible evidence of unlawful appropriation without subsequent restitution is discovered, the museum should notify the donor, seller, or estate executor of the nature of the evidence and should not proceed with the acquisition of the object until taking further action to resolve these issues.” Similarly, the AAMD Report on the Spoliation of Art during the Nazi/World War II Era (1933-1945) states that “If there is evidence of unlawful confiscation, and there is no evidence of restitution, the museum should not proceed to acquire the object and should take appropriate future action.”

Similar prohibitions pertain to incoming loans with questionable provenance. Both the AAM and the AAMD issued new guidelines on the acquisition of antiquities in 2008. These guidelines contain similar admonitions against acquiring works where there is evidence they may have been illegally excavated or exported, as well as a prohibition against acquiring antiquities which lack sufficient evidence to establish legal importation into the United States prior to 1970. Whether similar prohibitions against the acquisition and display of certain types of appropriation art should be imposed is a question that deserves serious consideration.

The history behind certain ethic codes

The history of how these collections-specific ethics codes have been adopted varies, as do the factors motivating their acceptance by the museum profession. For example, the guidelines concerning Nazi-era provenance issues represent a decision by art collecting museums to agree not to assert certain legal technicalities such as statute of limitations which would preclude otherwise legitimate substantive claims. The antiquities guidelines are principally motivated by concerns about the importance of preserving the context associated with archeological artifacts and efforts to discourage the illicit market in such objects. Politics are at the heart of much of the national cultural property debate. At best these collections-specific ethical codes represent an ongoing effort to address the ethical problems raised by certain types of museum acquisitions and exhibitions which may nevertheless be “legal” in terms of applicable law. The ethical problems raised by the acquisition and display of works such as the Obama “HOPE” portrait, similarly reflect the inadequacy of current ethics codes.

Most major museums have institutionalized current professional ethics codes as part of their own collections management policies. The acquisitions policies of most major museums now contain general guidance on conducting provenance research. Often this general guidance is presented along with specific guidance regarding the acquisition of Nazi-era loot and archaeological artifacts, and in some cases, objects of cultural heritage. Most major museum collections management policies now prohibit (albeit often with large caveats) the acquisition of works known or presumed to be associated with illicit activities in specific collecting areas such as Nazi-era works and archeological artifacts. Incoming loan policies also provide guidance on dealing with such objects.

In addition, major museum acquisitions policies often contain an obligation to comply not only with the laws applicable in their own jurisdiction but also with foreign laws bearing on the legal status of the object subject to acquisition. Consideration of the intellectual property rights of third parties is not specifically addressed in any major museum policies, but presumably these rights would also need to be considered as part of any acquisition since intellectual property laws are “applicable” laws under both US and foreign jurisdictions. Ironically, while at some major museums acquisition policies do specifically address the acquisition of intellectual property rights in works being acquired by the museum, these provisions are focused on the self-interested requirement that the museum be able to obtain reproduction rights to the work being acquired.

Some major museums go as far as to profess a “clear title” standard for acquisitions. 13 Broadly defined, “clear title” means that the object is free from all claims and disputed interests. Essentially a requirement to conduct a due diligence inquiry concerning the ownership of the work, the “clear title” standard implies an obligation to consider whether the rights to materials incorporated into the work have also been legally acquired. Clearing intellectual property rights in works is a standard business practice in the world of commercial media. Content providers are routinely required to show proof that they have acquired all necessary intellectual property rights for any third-party content appearing in their work, and to provide both warranties and errors and omissions insurance to protect the acquiring entity against intellectual property infringement claims.

In museums, on the other hand, intellectual property rights clearance has generally been limited to the licensing of photographic reproductions of the museum’s collections. Museums routinely rely on the “public display” right when faced with the need to clear intellectual property rights. Exhibiting museums often rely on shifting the risk to the originating museum as part of the loan agreement. However, clear title and provenance research requirements contained in most major museum acquisitions and loan policies suggest that existing museum ethics codes require more thorough consideration of the ownership of any intellectual property rights embedded in works of appropriation art as part of all of their acquisition and exhibition decisions.

What’s being done today

Increasingly museums are taking proactive steps to research the provenance of works being considered for acquisition, and have made transparency central to this effort. For example, the Indianapolis Museum of Art submits works being considered for acquisition to the Art Loss Register, and has made a commitment to openness and transparency in dealing with restitution and repatriation claims. Even so, museums are only beginning to conduct the level of legal review with respect to intellectual property rights which has long been common practice in the commercial world.

With regard to works of appropriation art, it would appear that acquiring or exhibiting museums arguably are obligated, under their own ethics codes, to carefully consider the underlying intellectual property rights in the work. A potential dispute over intellectual property rights in a work, such as one concerning copyright ownership or the lack of releases from clearly identifiable people appearing in the work, may be sufficient to prevent the acquisition or loan of the work under the clear title and provenance research requirements contained in most major museum collections management policies. Since appropriation art such as the Obama “HOPE” portrait involves the admitted use of copyright-protected images without permission, it would appear that the clear title and provenance research provisions contained in most major museum acquisition and loan polices would prohibit, prima facie, the acquisition or display of such works until any potential intellectual property ownership concerns have been resolved. Such a position would also be consistent with museum ethics codes in specific collecting areas including works with Nazi-era provenance and illicit antiquities, which unequivocally prohibit dealing in works with questionable provenance. This position would also be consistent with the museum’s role as a steward of the public trust.

It is possible to read some of the general statements in museum acquisition policies to prohibit, as a matter of museum policy, the acquisition of works which violate the rights of others – beyond the limited scope of Nazi-era looting, illicit antiquities, and works of national cultural heritage. The underlying principal of museum ethics codes is a concern for protecting the rights of innocent third parties. They strive to correct wrong-doing by eliminating technical legal barriers such as statutes of limitations, and by promoting due diligence and transparency. However, museums have done little to publicly address the ethical problems presented by acquiring or exhibiting works which may violate the intellectual property rights of others.

The National Portrait Gallery’s acquisition of the Obama “HOPE” portrait appears to be a case in point – to the author’s knowledge to date no public effort has been made to publicly explain how the acquisition and display of the Obama “HOPE” portrait complies with the museum’s legal and ethical obligations, nor how the acquisition affects the rights of the underlying copyright owners. Similarly, exhibiting museums, including The Institute of Contemporary Art, The Andy Warhol Museum, and the Contemporary Art Center, all of which have exhibited another copy of the Obama “HOPE” portrait as part of the traveling retrospective exhibition Shepard Fairey: Supply and Demand, have not made any public statement or provided any public programming addressing these important issues.

Museums and the free culture debate

The exceptions contained in intellectual property laws, including the “fair use” exception and the “public display” right, reflect the laws' attempt to strike a balance between the competing interests of intellectual property owners and users. Even so, there is a reasonable policy discussion to be had about whether current intellectual property laws are too restrictive or too liberal. Through their works of art, appropriation artists are actively engaged in this debate. Artists such as Shepard Fairey defend their actions in appropriating other works without permission by making policy arguments for the liberalization of intellectual property laws. In a statement posted on his website regarding the AP lawsuit, Fairey asserts that he is defending the rights of artists, “especially those with a desire to make art with social commentary.” The gist of Fairey’s statement is that he favors “more latitude” in the artistic use of otherwise protected works, without specifying to what extent such intellectual property rights should be respected. (Fairey 2009).

Fairey’s statement reflects one voice in the ongoing policy debate about the proper scope of intellectual property protection. Lawrence Lessing is perhaps the best known advocate of more liberal intellectual property laws. In the Preface to Free Culture, Lessing posits that the internet has altered traditional notions of how culture is created:

“As I explain the pages that follow, we come from a tradition of “free culture” – not “free” as in “free beer” (to borrow a phrase from the founder of the free software movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. But it does this directly by granting intellectual property rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture” – a culture in which creators get to create only with the permission of the powerful, or of creators from the past.” (Lessing 2004, xiv).

Lessing is a founder of Creative Commons®, an organization which has established a permissive licensing protocol through which content creators can give advance permission for certain prescribed uses. This is done through the establishment of standardized licenses permitting certain uses without affirmative approval by the rights owner. The result is a growing body of content that has been cleared for specified uses. The Creative Commons® licensing scheme provides an “opt in” system in which the covered culture may be freely used without the need to seek advanced permission from the rights owner, essentially establishing a new form of public domain for intellectual property rights.

In the internet age there is an increasing awareness of the role that intellectual property protection plays in the creation of culture. Commentators such as Michael Carroll, another Creative Commons® founder, have argued that the internet has exacerbated the tensions between freedom of expression and intellectual property protection. The origins of these tensions result in large part from changes in US copyright law in 1976: copyright now arises on creation of a work and the work remains protected for the creator’s life plus 70 years (120 years from the date of creation or 95 years from the date of publication in the case of works-made-for-hire). Under earlier copyright regimes, copyright owners were required to actively assert their ownership or the work quickly became part of the public domain. (Carrol 2007, 447). Changes in the law have affected artistic freedom of expression and the way in which culture is created.

The long history of the relationship between the creative process and the appropriation of images and ideas created by others is undeniable. The use of appropriated images in great works of art by great artists is well documented. The importance of protecting artistic freedom and freedom of expression cannot be discounted. However, when the rights of another intellectual property owner are involved, it is necessary to ask whose rights are more deserving of protection. While the obligation to ask for permission to use a protected work restricts the artistic process, such restrictions are necessary to protect the rights of the owner of the work being appropriated. The law attempts to strike a balance between competing interests while protecting the rights of the intellectual property owner. Voluntary schemes such as Creative Commons may be part of creating a more open cultural dialogue, but they do not alter the fundamental rights of intellectual property owners to control how their work can be exploited by others.

Museums which collect or exhibit works of appropriation art are finding themselves in the middle of the policy debate over the proper scope of intellectual property protection. Are museums that knowingly acquire or display such works serving as accomplices of the appropriation artist? It is well accepted that by purchasing and displaying an artist’s work, a museum helps to further the artist’s career and reputation. The so-called “museum effect” increases the value of the artist’s work. In situations where the work contains material that was wrongfully appropriated, the museum which acquires and displays this work is helping to perpetuate the wrong.

Similar arguments have been made with respect to the acquisition and display of works with Nazi-era provenance, illicit antiquities, and national cultural patrimony, which is why there is general agreement that the acquisition and display of such works by museums is considered inappropriate. In those cases, the general consensus is that museums should not deal in such works. Museum ethics codes reflect this unequivocal stance against dealing in works with problematic provenance. Should museums take the same position when dealing with certain works of appropriation art which may violate the rights of others? Or should museums position themselves as arbitrators in the policy debate – encouraging and facilitating an open and public discussion of the policy issues raised by works of appropriation art?

How a given museum answers this question may depend on how the museum views its mission. A museum which perceives its purpose as being a model of community norms and ideals will likely strive for strict compliance with legal requirements and established ethics codes. Such museums should engage in best practices aimed at assuring that the rights of all intellectual property rights owners are respected. On the other hand a museum that considers itself an advocate of artistic freedom or wants to foster a more open cultural dialogue will likely favor a more liberal approach to intellectual property protection – one which favors artist freedom and cultural exchange over protecting individual property rights. In either case, it is important for museums which are involved in the acquisition and display of works of appropriation art to establish a clear, mission-driven policy on how they will address issues arising from this important policy debate.

Important questions every museum must addresss

To uphold their public trust obligations, museums need to carefully consider their legal and ethical duties to thoroughly investigate provenance regardless of the type or origin of the work, to consider the legal and ethical implications of acquiring each work, and, wherever possible, ensure that the proposed acquisition does not infringe on another intellectual property owner’s rights. Not only may a museum expose itself to legal liability or reputational risk by acquiring and displaying potentially infringing works, but it may violate museum association ethics guidelines as well as its own collections management policies. While, in some cases, the “public display” right may provide legal cover, collecting and exhibiting museums must also consider how the acquisition and display of such works comports with applicable ethics codes and their own mission. The museum’s deliberations on these difficult issues should be conducted with openness and transparency.

Admittedly, there are situations where the issue of intellectual property infringement is not clear and obvious. In those cases, best practices dictate a careful assessment of the legal and ethical implications of museum acquisition and display. Best practices include a thorough investigation of the legal title to the work under consideration – including careful consideration of all potential intellectual property issues. Where intellectual property concerns are evident, the collecting or exhibiting museum must proceed in a way that will ensure that the interests of the putative rights owner are protected. This may require delaying an acquisition or foregoing a loan until a dispute over intellectual property ownership is resolved. In some cases, the museum may be able to secure a negotiated agreement with all putative rights owners which will allow for equitable display of the work. Such a license may provide a temporary solution while a permanent resolution is sought. In any event, the need to weigh the public and private interests involved is inevitable. In the interest of transparency, museums than deal in appropriation art are obligated to explain to their public why they came to the decision they did and how they will ensure that the intellectual property rights of all putative owners are being respected. Such explanations might take the form of public programming focused on informing and engaging the public in the intellectual property policy debate.

In situations where a bona fide claim of infringement has been alleged, such as is the case with the Obama “HOPE” portrait, the options seem fairly simple. Both acquisition and display should be deferred until all pending infringement claims are resolved. In the alternative, the acquiring or displaying museum should work out a negotiated license with all of the putative rights owners to ensure that everyone’s rights in the work are respected. Once the dispute between the putative intellectual property rights owners is resolved it is entirely appropriate for a museum to acquire and display the work. Museums that choose to be advocates for more liberal intellectual property protections should embrace their role as arbitrators and not shy away from engaging the public in an open and transparent discussion of this important cultural policy debate.

Acknowledgements

Thank you to Janet Marstine and the Institute of Museum Ethics.

Short biographical notes on all contributors

Walter G. Lehmann is the managing partner of Lehmann Strobel PLC where he practices art, entertainment and museum law. Lehmann received his Masters in Museum Studies from George Washington University in 2009.


  1. In the United States, the Visual Artists Rights Act (VARA) recognizes certain moral rights – principally the rights of attribution and integrity – but only to a very limited extent. For a discussion of moral rights and VARA, see Lehmann, Walter. 2007-2009. Art Interrupted: Legal and Ethical Implications of Exhibiting Commissioned Works. Available from http://www.lehmannplc.com/articles-downloads.
  2. While the thresholds for tangible expression and originality are generally very low (at least under US law), certain works have been found to lack sufficient creativity to warrant copyright protection. In Bridgeman Art Library v. Corel Corporation, 25 F. Supp. 2d 421 (1998), amended, 36 F. Supp. 2d 191 (S.D.N.Y. 1999), for example, the court likened slides and digital images of well-known public domain art works to copies produced by a photocopy machine and concluded that, since photocopying obviously fails the originality requirement of copyright law, so did the images in question. Originality and creativity are also essential elements under other intellectual property laws, including patents and trademarks.
  3. Before 1978, formalities, including notice and publication, were necessary to obtain copyright protection under US law, but the Copyright Act of 1976 eliminated those requirements. Today, copyrights arise on creation, and lasts for the author’s life plus 70 years. Intellectual property created under a “work-for-hire” arrangement is protected for the shorter of 120 years from the date of creation or 95 years from the date of publication.
  4. A recent wave of what has mistakenly been described as “creative copyright infringement” – which has led to such unlikely “mash-up” best sellers as Jason Rekulak’s Pride and Prejudice and Zombies – is in fact the lawful appropriation of work that is now in the public domain and no longer subject to copyright protection.
  5. The statutory four factor test in the US Copyright Act includes consideration of: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole: and (iv) the effect of the use upon the potential market for or value of the copyrighted work. 17 USC §107. Where any of these four factors is met, the “fair use” exemption relieves the user of a work protected by copyright from obtaining permission from the copyright owner in a limited set of fact situations.
  6. “Notwithstanding the [exclusive right of public display], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publically, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.” 17 USC §109(c).
  7. Under some “moral rights” schemes, the artist retains the right to control the exhibition of his or her work. French common law, for example, recognizes an artist’s “droit de divulgence” – the right of the artist to determine when a work is ready to be publically displayed.
  8. Under US law, trademark infringement depends on whether the use of the protected mark causes a “likelihood of confusion” for the consumer about the source of goods or services being used in connection with the mark. As such, the context in which the trademark is used is essential to the cause of action. If the use would not cause a likelihood of confusion, it is sometimes referred to as a “fair use”. However “fair use” under US trademark law should not be confused with the statutory “fair use” exemption contained in the US copyright law. Andy Warhol’s use of corporate logos – his iconic Campbell’s® soup cans for example – are generally considered “fair use” under US trademark law because there is no likelihood of confusion between his fine art objects and the products of the soup maker. In some circumstances other legal concepts, such as trade dress or business disparagement, may be applicable.
  9. For example, in September 2009, a work by Richard Prince entitled “Spiritual America” which included a naked image of actress Brook Shields at age 10 was withdrawn from public exhibition by the Tate Modern after the museum was warned by British police that the work might violate that country’s obscenity laws. The work had previously been displayed at the Guggenheim Museum in New York without incident. Higgens, Charlotte, and Vikram Dood. 2009. Tate Modern removes naked Brook Shields picture after police visit. Guardian, United Kingdom, September 30.
  10. “Contributory infringement” occurs where someone knows that infringing activity is taking place and induces it, causes it, or materially contributes to it. Thus, a museum which displays a work which it knows infringes on the rights of another person can be vicariously liable for intellectual property infringement.
  11. Damages for infringement may include statutory as well as actual damages, and the claimant may also be entitled to injunctive as well as equitable remedies, which may include preventing the distribution of the work and the requirement that all existing copies of the infringing work be destroyed. A successful claimant could conceivably seek to prohibit a museum from displaying the infringing work, and could conceivably even seek to have the infringing work destroyed.
  12. See e.g. Darman v. Andy Warhol Foundation for the Visual Arts, 1997 WL 337488, in which defendant’s motion to dismiss claim of misappropriation of a copyright image by the late Andy Warhol, which formed the basis for his work “Sixteen Jackies” was denied. Similarly, the publicity photo of Marilyn Monroe taken by Gene Korman used by Andy Warhol for his “Marilyn” series was the subject of a private settlement with the Warhol Foundation.
  13. Getty Museum Collections Policy, available at http://www.getty.edu/about/governance/pdfs/acquisitions_policy.pdf. “No object will be acquired without adequate assurance that valid and legal title can be transferred.”

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