The practice of appropriation in the history of art among the fair use and the copyright in the Italian legal system

Over the past few weeks, Breezy, in collaboration with the Piselli and Partners law firm and the artistic duo Hackatao, took you on a journey to discover a phenomenon well known in the history of art, but often overlooked: the appropriation. It consists in the artist's identification of a particular finished object, to be rearranged (or remixed) and recontextualized, to create something that can deviate more or less evidently from the matrix, giving rise to a new creation.

It has been said, in fact, that this type of intervention can be more or less pervasive and a series of legal implications depend on this, some of which have been addressed in our column. In particular, when this process concerns a work of art protected by copyright, is it legitimate to consider this remix as a work of art in itself - legitimized by what the Americans call fair use, or rather the derivative work should have an authorization issued by the remixed artist (according to a more protectionist logic, espoused by the Italian legal system)?

While some cases appear to be easy to resolve, as seen for "Mona Lisa with Mustache", because the inspiring work, created by Leonardo Da Vinci, is in the public domain and therefore not subject to Copyright, most of the time respond to this question is not so simple and every single case from time to time will have to be evaluated.

The position of the US law, with the aim to encourage the greatest possible freedom of expression, coined the institution of fair use, by means of a work of art subject to Copyright can be used by third parties even without prior authorization from the author.

The Copyright Law of 1976 acts as a "legal framework" for the institution, establishing the criteria for identifying fair use and the purposes of using the protected material (such as criticism, commentary, news, teaching, research and parody).

US Code, Title 17, Chapter 1, § 107: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phone records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright .

Based on this article, the jurisprudence developed a test that considers 4 factors, in order to determine whether the use of a previous work constitutes fair use:

(a) The purpose and nature of the use, evaluating whether such use is commercial or whether it has a non-profit educational purpose;

(b) The nature of the author's work;

(c) The quantity and importance of the part of the work used in relation to the whole work;

(d) The effect of the use on the potential market or value of the work used.

It is still a question of criteria elaborated by jurisprudence from which opposing orientations can arise. In this sense we dealt with the two pronunciations of the American artist Jeff Koons.

In the sculpture “A String of Puppies” (1988), Koons makes an exact copy of the same subject photographed by Rogers in 1980, removing the copyright notice from the photograph. When Rogers learns of the fact, he sues Koons. The latter, already known to the Court for similar cases, tries to appeal to the fair use and the parodic use of photography, arguing, in fact, that his work was born as a critique of the consumerist economic system. A thesis that does not convince the Court, because it would not be a real criticism of society, having made a faithful reproduction in all respects to the previous work, without paying the rights due to the author.

In the work "Niagara" (2000), Koons uses the photograph of Andrea Blanch, created for a Gucci advertisement and depicting two crossed feet wearing sandals. The Court's ruling, this time, is in his favor: it establishes that in this case there is a substantial modification and reinterpretation of the original which justifies fair use, since the advertising quote is inserted in a large painting, among three further pairs of feet, on a completely different background and with a vertical reversal of the subject.

A margin of discretion so thin as to give rise to decisional inconsistencies even in the same case, as happened in Cariou vs Prince . The French photographer Patrick Cariou published in 2000 a collection of photos taken in the six years spent in a community of Jamaican Rastafarians, entitled “Yes, Rasta”. From this catalog, between 2007 and 2008, the American artist Richard Prince decided to draw 41 images with more or less important reworkings, to give life to a cycle of works entitled “Canal Zone”. With the circulation of some works from the collection, the photographer decides to sue Prince for copyright infringement. From the reading of the parameters of the fair use test (from the Copyright Act, 1976) and of the previous jurisprudence, the District Court takes sides in favor of Cariou, not finding any intention of dialogue on the part of Prince with the photographic images: so to apply the fair use, the subsequent intervention must be a "comment" on the original.

In the Court of Appeal this restrictive approach is overcome, giving space to the aesthetic needs and methods of appropriation until the requirement of the “comment” of the work of others disappears, focusing exclusively on the originality of the subsequent work in terms of meaning. With this decision, any link with the Copyright of Cariou's work is definitively severed.

The Italian legal system arises differently, which, as mentioned, is particularly stringent on the subject. In Law no. 633 of 22 April 1941 , in art. 18 reads: [is an exclusive right of the author to elaborate], includes all forms of modification, elaboration and transformation of the work.

And again, in art. 20: Regardless of the exclusive rights of economic use of the work, provided by the provisions of the previous section, and even after the transfer of the rights, the author retains the right to claim paternity of the work and to oppose any deformation, mutilation or other modification, and any act to the detriment of the work itself, which may be prejudicial to its honor and reputation.

From the combined provisions of the two articles it emerges that the author, according to the Italian law, always boasts the exclusive right to intervene on the original made by himself and any further modification by third parties must be authorized by him, without prejudice to his right to oppose any operation that he may deem harmful to his reputation.

Among the cases examined, the most interesting, precisely because it takes up the same logic of the American thought, dates back to 2011, with a sentence that saw as protagonists the Italian Giacometti Foundation, on the one hand, and the American artist John Baldessarri and Fondazione Prada, on the other. The latter presented, in its exhibition spaces, the series “The Giacometti Variations”, of sculptural forms taken from Giacometti's silhouettes, not authorized by the artist's Foundation.

The decision of the judge of the Milan court made use of principles derived from fair use, finding completely different intentions at the basis of the creative act: if the story that Giacometti intended to tell was about the privations suffered by the Italian people during the war period, the one of Baldessarri instead, criticizes the aesthetic ideal of the modern woman, in her excessive thinness. A divergence that also emerges on the expressive level, with the choice of the American artist to make a serial reproduction, enlarged and dressed in multicolored fabrics and accessories. These variations are therefore original works that have lost the hermeneutic and essential character of Giacometti's poetics.

Furthermore, Pablo Picasso himself wrote in 1952: Suppose you want to copy Las Meninas in a pure and simple way; The time would come when, if I were to undertake this work, I would say to myself: “What would come out of it if I put this character here, a little more to the right or a little more to the left?”. And I would try to do it my way without worrying about Velázquez anymore. This attitude would certainly lead me to modify the light or arrange it in a different way for having changed the place of a character. So little by little I would make a Las Meninas, which a painter specialized in copies would reject: they would not be Las Meninas, as they appear to him in Velázquez's canvas, they would be my Meninas.

In conclusion, we recall the last Italian case, the results of which are still suspended today.

The Italian-South African artist Alessia Babrow sued the Vatican for having appropriated one of her murals located in Rome - without having informed or cited her - for the creation of a series of stamps to be sold on the occasion of Easter 2020.

This case opens up to multiple profiles of law:

a. the artist has not been informed of the appropriation, not having even been cited as author, nor has she given her consent;

b. The original work has been modified, even here without consent, with the affixing of the price and the association with the symbol of the Vatican and the Holy See, as well as the words “Easter 2020”;

c. The destination of the work of art has been distorted, from free use to commercial purposes for the exclusive benefit of the Vatican (we are talking about 80 thousand stamps issued, at a price of 1.15 euros each)

Now, after suing the Vatican, Alessia Babrow is asking for compensation of 130 thousand euros.

Conclusions

With the evolution of the media communication, the circulation and transmission of information and metadata has assumed incredible speed, so much so as to make exchanges via the web uncontrollable.

The question we have posed with this column is whether it is possible and, if so, actually productive, to implement the traditional authorization and control tools.

In this sense, in fact, in order to support this fluidity of exchange, over time various realities have emerged that have been removed from the constraint of copyright, namely fair use, the public domain (presented there) and copyleft (in which the same author is to voluntarily renounce their rights, delivering the work for free reuse, possibly keeping some conditions and limitations - for example the need to cite the source).

However, there is still a strong need to protect artists and collectors from illegal appropriation practices, which can cause damage or compromise their moral and economic rights.

Currently, there is no single solution , but it is certainly necessary to foster the dialogue between the artistic community and the world of law, so that traditional legal instruments can be rethought in the light of new needs and the most modern technological tools.