A Critique of the Reasonable Observer: Why Fair Use Fails To Protect Appropriation Art

July 1, 2015Articles Colorado Technology Law Journal

Since the mid-twentieth century, modern artists have appropriated existing images and objects in consumer culture to create their own conceptual commentaries on the modern world. In his notorious piece Fountain, celebrated artist Marcel Duchamp bought a urinal from a plumber’s shop, turned it upside down, signed it “R. Mutt,” and submitted it as a sculpture for an open exhibition in New York. Duchamp’s gesture transformed a readymade and banal urinal into a work of art, deserving of its own pedestal. Fountain shows just one method of how the unconstrained appropriation of “readymade” objects can create a critical dialogue between art, consumer culture and socio-economic factors. One leading exponent of Conceptual art, Joseph Kosuth, cited Marcel Duchamp’s invention of the “unassisted Ready-made” as the single event that changed the focus of art “from the form of the language to what was being said,” or put another way, “from ‘appearance’ to ‘conception.’”

In order to successfully rely on a fair use defense under current copyright law, an appropriation artist must sufficiently “transform” the original (copyrighted) work from the perspective of a “reasonable observer.”

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