Staking Claim Hypocrisy: Appropriative Fallacy

Joshua David Noiseux

It has become common in discussions of contemporary art to mention the concept of appropriation. It has become almost a mark of credibility for artists to utilize, often without permission of any kind, aspects (or whole pieces) of other people’s creations. This appropriative practice is nonetheless highly controversial, as it runs up against some very firmly entrenched values in our society, namely property and originality. Still, contemporary artists have often employed re-use and recycling techniques, especially using elements of pop consumer culture, to critique this propertarian society and the broader political system, perhaps partially because of the controversy it generates. With this increasing frequency and acceptance of appropriation of art serious questions have arose, both informally and from strict judicial standpoints, about the morality, legality and viability of these practices.

The question of appropriation in art, however, cannot be confined to an insular discussion from within the artificial confines of the “art world.” Because the concept of appropriation relies heavily, almost entirely, on legal precedents and governmental regulations, the question is necessarily a political one. By taking a closer look at what it means to appropriate we are approaching not only a better understanding of art making, but also of the social and political situation that surrounds and informs that artistic practice today.
At the core of the definition of the concept of appropriation is a striking paradox. While to “appropriate” is most commonly understood as: “to make use of without authority or right,” it is also, and this is the principle yet less frequent definition: “to set apart for or assign to a particular recipient, purpose, or use,”normally by some official legislative body.[1] A single concept can at once be representative of the property-making power of a governing body that decides who is allowed to own a given object or expression. Not to mention, the illegal, extra-legislative exercising by private individuals of that same property making power is illustrative of a wider paradox that is the entry point for understanding the problems of ownership, authorship, and copyright in art and society.

Appropriation is often seen as a negative extension of the artistic practice that incorporates foreign materials, although in post-modern circles the concept has become increasingly accepted.[2] Although Marcel Duchamp broke down many social barriers in art making by presenting his Fountain,[3] the negative connotation of appropriation still exists. Albeit, appropriation a normal aspect of creativity, but by token of its definition as an unauthorized right-less act, its incorporation in creative practices has gone too far. Where, then, can we find the divide between normal acceptable art practice and controversial, illegal appropriation? Appropriation as an immoral, illegal act is dependent on an external definition. Even if we were to follow John Locke’s concept of property as natural and intrinsic, we would still need to accept that the definition of what is acceptable use and what is unfair appropriation is not self-evident or inherent. It needs to be determined by an outside force, which is, in our case, the judicial system.

The criteria for considering art appropriation are dependent on the social, political, and legal climate, and as such are subject to change. Marcel Duchamp’s 1917 presentation of a urinal as art certainly brought into question the conventions of authorship and the meaning of art, generating controversy about whether or not the piece was morally legitimate, let alone a piece of art. It could be said without dispute that at the time his work was an appropriation of everyday materials, placed into the art world. This was, at the time, cause for serious disdain and derision. Later in the 20th century, however, Duchamp’s piece was accepted and admired for having ushered in a new age of freedom in art. Duchamp himself, though, was reported to have approved of the statement:

This Neo-Dada, which they call New Realism, Pop Art, Assemblage, etc., is an easy way out, and lives on what Dada did. When [he] discovered the ready-mades [he] sought to discourage aesthetics. In Neo-Dada they have taken [his] ready-mades and found aesthetic beauty in them, [he] threw the bottle-rack and the urinal into their faces as a challenge and now they admire them for their aesthetic beauty.[4]

While it would be less interesting and relevant as a result of the shifts that have occurred, calling an everyday artefact a piece of art will in no way elicit the same outraged response today that Fountain did in its day. Rather, it will probably be attacked on the basis of “copying” Duchamp’s gesture. The same can be said of Andy Warhol and his Campbell’s Soup Can of 1968, shocking, controversial, and revolutionary in its time. However, today, this kind of appropriative act has lost its radical power and is now a common and popular aspect of the very consumer culture system it once criticized. In this regard, it is perhaps due to the fact that the concept and definition of appropriation as a negative act, one that constitutes theft of artistic or intellectual property, is subject to social developments.

More recently, in the famous 1992 legal battle, Jeff Koons came face to face with the modern day legal definition of appropriation when he included one of Art Rogers’ photographs in his creation of String of Puppies (1998). Rogers successfully sued Koons over his use of the image, setting a strong precedent for the legal understanding of appropriation in art. In denying Koons’ argument that his use of Rogers’ photograph was fair criticism, U.S. district court judge Charles Haight claimed, “Koons’ sculpture does not criticize or comment upon Rogers’ photograph. It simply appropriates it.”[5] In this case, the representative of the state was unequivocal in his application of copyright law, forcefully articulating the implicit negative value of multiple-use and appropriation.

In a seemingly contradictory scenario, the Supreme Court of Canada ruled in March of 2002 against artist Claude Théberge, who was fighting a legal battle with a gallery in Montrealover the use of his images.[6] Théberge had licensed the gallery to sell poster reproductions of his paintings, but the gallery went a step further and converted the posters into canvas based fake paintings, for sale at much higher prices. What Théberge thought was a clear-cut case of very unfair use, the Supreme Court ruled was only a legal extension of fair use.[7]
Appropriation, and its legal pseudonym, copyright infringement, is a fickle beast, dependent on very subtle and particular cultural and legal specifics. But beyond the period-specific labels and definitions of what is and isn’t appropriated, all creative action is in some way constituted by a process of sharing and borrowing various artefacts of the experience of culture and history, collective and interpersonal. While not necessarily copying exact visual details, every artwork must be influenced by other creations and media, because every creator of art must be so influenced. It is impossible to live or create in a social vacuum. All that we are is the sum of all that we have been and all that we have seen, and any of our creative actions is informed by our interactions with the world, people, and medias around us.

Daguerre, even, who with his first photographic images inaugurated an incredibly new realm of practice, was dependent on his awareness of traditional painting and scene construction for his compositions and conceptualizations about his works.[8] From the Renaissance painters who reworked Classical themes in their historical paintings, to Picasso, whose early cubist paintings relied on traditional African mask portraiture, to John Cage, who incorporated sounds from everyday experience to make music, artist’s works have been influenced and constituted by the concepts and creations of others. Because the source of rights is ultimately society’s conception of them and their expression in law, appropriation as the “making use of without authority or right,” is only a label applied to the ongoing process of creative sharing and intermixing when it fails to meet certain cultural or legal expectations.

The naming of an art work as appropriated, thus emotionally linking it to the act of theft and robbery, is a special distinction given to a particular artefact from the general stream of shared, borrowed, loaned, remembered creative processes. It is a process of delegitimization and repression carried out primarily by the institutional judicial powers along with and in intercourse with general cultural/social climate, which is largely shaped by the institutional powers of media. If a work does not fit within the socially and legally acceptable boundaries of authorship and originality, it cannot be allowed to exist, and the author of the transgressing work must be reprimanded. In the case of Rogers versus Koons, the sculptor was barred from ever presenting his work, forced to give the sculpture to Rogers and to pay a series of hefty fines.[9] For the work to be considered appropriative, whether seen as illegal or not, is for it to be viewed as transgressing specifically the boundaries of the standards of ownership and property protection prevalent in that specific place and period, not any intrinsic valuation or proprietary association with an individual or group. This is to say that it is only our concept of property rights that enables the contemporary use and dissemination of the derogatory label, appropriation.

Whether considered acceptable and positive or not, it must be recognized that the constituting force of property and ownership, artistic and otherwise, stems from government power. Even if, as above, we accept the Lockean premise that the possession of property is a natural right, we must recognize the material basis for their practical reality. This material basis I will call real ownership. Real ownership derives from the power to assert ownership, which is: the armed force of the legislative state, or of brute force in pre- and post-state power groupings. It is not a metaphysical or divinely sanctioned right existing outside human relations and concepts of relations. As post-modern discourse has developed alongside post-colonial criticism (and not forgetting earlier trends in Marxism and Anarchism), we have seen that the institutional apparatuses that are the main real sources of ownership and propriety can themselves come under severe scrutiny.[10]

The state apparatus that defines property and copyright (thus, appropriation) also applies the label appropriation, revealingly, to the official and legal acts of staking claims or transference of monetary or other artefacts. Perhaps in this official jargon the state is making an ironic, self-conscious reference to its own illegitimacy. In any case, the great arbiter of property, and conversely, of what can be considered theft/appropriation, can just as easily be considered in its own terms.

The modern day Western/North American state is responsible both presently and historically for massive, systemic theft, murder (the appropriation of another’s life) and territorial conquest, which is perhaps the best summation of the state’s role when discussed in terms of appropriation. Examples abound but what follows are a few of the most striking: the conquest of the Americas and wide scale slaughter of Native populations; the wars of westward expansionism by the British and the U.S.A. against Native Americans; African slavery; the reservation and treaty system; the repression of labour unions, citizens’ movements and civil rights and anti-war activists, among others; the American Civil War; the purchase, conquest or theft of the territory of Canada from Native Americans; British and American Imperialism; World War I.

Native Americans in particular have struggled for hundreds of years against a government system that has legalized the theft of their lands. The territorial conquest of North America is only now beginning to be widelyunderstood for its forceful appropriation of First Nations land and so the term is being reflected back at its main originator (government) in a negative light.[11]

In this climate, the act of naming appropriation becomes an exercise in hypocrisy, one that reveals the shallowness and fragility of the assumptions upon which proprietary capitalist culture bases itself. In a social order that enthrones private ownership, specifically as defined and mandated by the state, any creative act that sidesteps the boundaries and taboos of property (conventions of authorship, copyright, and fair use rights) is necessarily threatening. It follows that all such violations of the sanctity of property must be avoided at all costs, punished if they arise and crushed if they dare to persist. This hypocrisy, of the calling out of theft by thieves, can be called the appropriative fallacy. Our assumptions rest on this fallacy when we say that an artist has used somethingwithout right.

Recognizing this hypocrisy does not necessarily entail that copyright law specifically or the concept of appropriation in general is necessarily wrong. We always need some framework within which to consider our actions and their impacts. Taking the creation of someone else and exhibiting it as our own may transgress arbitrary legal boundaries but more importantly it probably also transgresses personally held moral convictions. If Koons’ sculpture String of Puppies causes Art Rogers to lose standing or damages his ability to make a living from his own art, Koons could certainly reconsider his actions with injurious consequences in mind. But if the decision that Koons’ sculpture is inappropriate legally, it corresponds to an affirmation that it is inappropriately moral, it is coincidental, almost beside the point. This is because the institutions that uphold and define copyright and legality are indeed arbitrary, as the very different ruling against Théberge can indicate.

Some in the art community, including AA Bronson of the General Idea (1969-1994) triad, holds, “The key to contemporary consumer culture is copyright and the sanctity of (individual and/or corporate) authorship, today’s mega-economics would collapse – imagine Microsoft for example, without copyright.”[12] This non-altruistic adherence to moral standards is why the institution of property rights must be maintained by the legislative state. Recognizing this forces the discussion of appropriation of art to be seen in a different light. We can go along with the common notion of appropriation as it is defined by reigning legal and cultural systems, and limit ourselves accordingly (both in how we think about the creative process and how we allow ourselves to create), or we can question, as artists like Bronson have done, the very legitimacy of the copyright/property regime itself. Bronson states that, “Museums act as symbolic keepers of the virtue of copyright, and an art expert’s opinion on a work can send values soaring or crashing by vast amounts of money.”[13] This is the system General Idea was critiquing when it challenged Time-Life with FILEmagazine, and when they created fake copies of works by Mondrian, Rietveld, Reinhardt and Duchamp.[14] It is the same system faced by Koons and Théberge with their respective copyright cases.

We are all obliged to course within this system, living and creating, as we must subject to the conditions imposed by law and culture. It is only a critical understanding of the mechanisms and terms of this system (i.e.: the appropriative fallacy) that will enable us to reach beyond its inhibitive grasp.

Althusser, Louis. “Ideology and Ideological State Apparatuses.” Lenin and Philosophy and Other Essays. New York: Monthly Review Press, 1971. (accessed
November 14, 2006)
Barrett, Terry. “Modernism and Postmodernism: An Overview With Art Examples” in J. Hutchens & M. Suggs (Eds.) Art Education: Content and Practice in a Postmodern Era Reston: National Art Education Association, 1997, 28-29. Merriam-Webster’s Dictionary of Law, Merriam-Webster, Inc. (accessed November 13, 2006).
Bronson, AA. “Copyright, Cash, and Crowd Control: Art and Economy in the Work of General Idea” in General Idea: Editions, 1967-1995. Ed. Barbara Fischer. Mississauga: Blackwood Gallery, 2003, 20-23.
Buskirk, Martha. “Art and the Law; Appropriation Under the Gun.” in Art in America. Vol. 80, No. 6. June 1992, 37-41.
Cabane, Pierre. “Introduction” in Duchamp & Co. Paris: Editions Pierre Terrail, 1997, 8-14.
Crean, Susan. “Stirring the Creators.” in Collective News, newsletter of Canadian Artists Representation Copyright Collective. Issue 6. November 2002, 1.
Girst, Thomas. “(Ab)Using Marcel Duchamp: The Concept of the Readymade in Post-War and Contemporary American Art” in Tout-Fait: The Marcel Duchamp Studies Online Journal. Issue 5, 1. 2003 http://www.toutfait.
com/issues/volume2/issue_5/articles/girst2/girst1.html#ednref1 (accessed November 14, 2006).
Hurley, Mary C.; Wherret, Jill. “THE REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES” overview. (accessed
November 12, 2006).
Marien, Mary Warner. “The Origins of Photography” chapter in Photography: A Cultural History. New Jersey: Pearson Prentice Hall, 2006, pages 11-15.
Tarnas, Richard. “The Post Modern Mind” in The Passion of the Western Mind. New York: Ballantine Books, 1991, pages 395-410.

1 Merriam-Webster’s Dictionary of Law, 2006. (accessed November 13, 2006)
2 Terry Barrett, “Modernism and Postmodernism: An Overview With Art Examples” in J. Hutchens & M. Suggs (Eds.) Art Education: Content and Practice in a Postmodern Era (Reston: National Art Education Association, 1997): 28, 29
3 Pierre Cabane, “Introduction” in Duchamp & Co. (Paris: Editions Pierre Terrail, 1997): 5
4 Thomas Girst, “(Ab)Using Marcel Duchamp: The Concept of the Readymade in Post-War and Contemporary American Art” in Tout-Fait: The Marcel Duchamp Studies Online Journal. (Issue 5, 2003):1
5 The case (Art Rogers v. Jeff Koons; Sonnabend Gallery) started in October, 1991 and was decided in April 1992. Martha Buskirk, “Art and the Law; Appropriation Under the Gun.” in Art in America. (vol. 80, No. 6. June 1992): 39
6 Case: Théberge vs. Galerie d’Art du Petit Champlain Galerie
7 Susan Crean, “Stirring the Creators.” in Collective News, newsletter of Canadian Artists Representation Copyright Collective. (Issue 6. November 2002): 4
8 Mary Warner Marien, “The Origins of Photography” chapter in Photography: A Cultural History. (New Jersey: Pearson Prentice Hall, 2006, Marien, 2006): 12
9 Martha Buskirk,. “Art and the Law; Appropriation Under the Gun.” in Art in America. (Vol. 80, No. 6. June 1992): 40
10 Louis Althusser’s work on the subject provides exceptionally sharp criticism: “Ideology and Ideological State Apparatuses.” Lenin and Philosophy and Other Essays. (New York: Monthly Review Press, 1971.)
11 Mary C Hurley & Jill Wherret, “The Report of The Royal Commission on Aboriginal Peoples” (accessed November 12, 2006)
12 Bronson, AA. “Copyright, Cash, and Crowd Control: Art and Economy in the Work of General Idea” inGeneral Idea: Editions, 1967-1995. ed. Barbara Fischer. (Mississauga: Blackwood Gallery, 2003): 26
13 Id.
14 Ibid. 27