Slammin with Jeff and Damien (2009)
Dear Jeff Koons and Damien Hirst: our stiletto-wearing legal correspondent, M. Contraband, Esq., is watching your moves in the mosh pit...
artdesigncafé | Professional development | Published 01 October 2009
PUNK is about shock and irony and anarchy, and generally treading hard on the toes of those who walk the boring middle line, culturally speaking.
But make art that embodies the punk spirit and suddenly you’re not hanging out in the gutter, you’re standing smack in the middle of the very straight legal world.
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Portrait of M. Contraband, Esq. If you steal this photo, this PUNK lawyer-artist may be totally on you!
For artists like Jeff Koons and Damien Hirst, shock and irony are their stock in trade. And in the process of creating iconic ironic visual statements they’ve occasionally tread on other people’s copyrights with a style worthy of Johnny Rotten himself.
Appropriation art sits comfortably alongside sampling and mashing in music but isn’t anything new. It’s straight out of the Duchampian tradition but goes well beyond the act of taking a found object like a urinal, placing it in an art exhibition and re-christening it The Fountain.
From a copyright law perspective, it’s fine to do whatever you want with an old urinal (unless it’s an artwork like Marcel Duchamp’s, in which case you might be violating the artist’s “droit morale”, the artist’s moral right against altering the work—but that’s another story). But it’s not fine to take somebody else’s work and basically just reproduce it, albeit every so much bigger and brighter and more expensive.
Two cases in point: Jeff Koons’s String of Puppies (1998) and Hirst’s Hymn (1999), each of which appropriated culturally mainstream images. In both instances, the artists took someone else’s copyright-protected work and instructed assistants/fabricators to make a large-scale, three-dimensional, colour copy of it.
In the String of Puppies case [Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)], the appropriated image was the work of a little-known commercial photographer who had made postcards with an image of a man and woman holding a large litter of puppies in their arms (very sweet and unpretentious, or kitsch and low-brow, depending on one’s point of view).
Damien Hirst’s Hymn is a powerfully iconic work based on a toy from a child’s science set designed to illustrate the internal and external anatomy of a man (get it? Him? Hymn?) Hmmm…
In both instances, Jeff Koons and Damien Hirst faced legal challenges for copyright infringement. Jeff Koons’s case went to trial and Damien Hirst’s didn’t as it was settled out of court, but both ended up paying compensation. So far, so punk—sometimes you take a chance and get a kicking. But there was an up-side in terms of high-profile press coverage, especially for Damien Hirst when Charles Saatchi bought Hymn.
And Punk Lawyer will be the first to give credit to Jeff Koons and Damien Hirst for arguing that artists should have the freedom to mine the rich and varied terrain of popular culture for the purpose of social comment and parody. They are certainly not the first to do so, and in many cases there’s no legal problem with it anyway. US copyright law (and to a somewhat lesser extent in the UK) has a pretty generous fair use exception for that kind of thing; otherwise, we wouldn’t have Two Live Crew’s classic re-make of Roy Orbison’s Pretty Woman, for example, and how could anyone live without that?
Jeff Koons, Damien Hirst & copyright: 1 | 2
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