The ancient complaint, from the Book of Ecclesiastes, that “there is no new thing under the sun” seems more timely than ever, as visual artists, musicians and writers reproduce work originally created by others. Whether works incorporating “found objects” breathe new life into Western art or sound its death rattle is open to debate—as is the legal status of art that remakes, with varying degrees of alteration, work that somebody else made previously.
With his 1917 work Fountain, one of the most influential artworks of the 20th century, French artist Marcel Duchamp (1887–1968) made a mockery of the artist’s role in creating art. Fountain consisted of a urinal from a plumbing-supplies outlet; Duchamp’s only interventions were to turn it upside down and sign it “R. Mutt 1917.” Fountain was one of Duchamp’s ready-mades, purchased or found objects that he designated as works of art. He altered some of these ready-mades (L.H.O.O.Q. is a reproduction of Leonardo da Vinci’s Mona Lisa with a mustache and goatee superimposed by Duchamp on the famous face), others he merely signed and titled. About one of them Duchamp remarked, “Don’t try too hard to understand it.” That’s sound advice, since interpreting these pieces isn’t just brain twisting, it may be missing the joke.
One of Duchamp’s many artistic heirs was collagist Ray Johnson—one of whose pieces shows Duchamp’s urinal with a bowling ball lodged inside. Johnson challenged the artist’s primacy in a different way with his mail art—collages he sent to friends, inviting them to make whatever changes they pleased, even to send them on to others and ask those recipients to do the same.
Ray Johnson’s collages—indeed all collages—are full of borrowings. Those he made in the 1950s often incorporated product trademarks (the Lucky Strike cigarette logo) and images of pop-culture idols (Elvis Presley, James Dean), and Johnson is rightly seen as a forerunner of the Pop artists of the 1960s. In fact, Johnson was a close New York friend of Pop impresario Andy Warhol, whose best-known early work appropriated images from supermarket shelves and movie magazines. Even with their borrowings, Johnson’s collages are obviously hand-made—often charmingly crude—and Warhol’s work is not entirely divorced from traditional notions of art making. (Warhol’s famous Brillo boxes are crafted of wood, and in his many silk-screened paintings of cultural icons ranging from Marilyn Monroe to Mao Zedong, Warhol significantly altered the images he pilfered from the mass media.) These qualities place Johnson and Warhol at some remove from later, more aggressively appropriationist artists such as Sherrie Levine (b. 1947), who in 1980 exhibited “rephotographs” of photos by Walker Evans that are virtually indistinguishable from the originals, and Richard Prince, who has sometimes done much the same thing, rephotographing pictures from advertisements and other sources and presenting the results as his own work.
The artist Richard Prince, punningly called “Richard, Prince of Thieves” by Interview magazine, has reproduced the photographs of the Marlboro cigarette ad cowboys; he has hand-copied jokes from humor books and presented them as drawings (and made a series of brightly colored, cleanly lettered paintings based on the same material); he has redrawn cartoons from The New Yorker magazine and used them in pieces that incorporate material from other print sources; he has even published an edition of J.D. Salinger’s coming-of-age novel The Catcher in the Rye with his own name as author on its cover. Any of these unauthorized uses might be construed as copyright infringement, but what landed Prince in legal hot water was a 2008 show, Canal Zone. At least some of the exhibited works—collage-like pictures combining images from several preexisting sources that, in their distortion and overpainting, show clear evidence of the artist’s hand—look a lot more original than many of Prince’s other pieces. Nevertheless, photographer Patrick Cariou, from whose book Yes Rasta (2000) Prince heavily borrowed, sued Prince for infringement. The closely watched case, with potentially huge implications for appropriationist artists, was decided in 2011 in Cariou’s favor; Prince has filed an appeal.
Literary and other artists have been borrowing from, even replicating, their predecessors’ work since just about forever: Virgil’s Aeneid (30–19 B.C.) cribbed from Homer’s Iliad and Odyssey, and much so-called Greek sculpture survives only in the copies that Roman-era artists so prolifically carved. The ancients didn’t have to worry about copyright law, which dates only to the 18th century. Given today’s copyright rules, if you’re going to legally incorporate somebody else’s original work in your own art, you’ll have to (1) make sure your borrowings abide by “fair use” restrictions, which allow for limited use of quotations and such, or (2) obtain the copyright holder’s written permission, or (3) confine your thieving to works, generally by people long deceased, that belong to what’s called the public domain. Several authors of postmodern “mash-up” literature have chosen that third option. Punk writer Kathy Acker (1947?–1997), a pioneer of the genre, unabashedly plagiarized from Charles Dickens and Miguel de Cervantes. More recently, Seth Grahame-Smith’s Pride and Prejudice and Zombies, which splices together chunks of Jane Austen’s undyingly popular novel with Grahame-Smith’s own horror fiction starring the undead, made the New York Times best-seller list and devilishly spawned several sequels.
The mash-up aesthetic isn’t limited to collage (which was pioneered as a fine art by Pablo Picasso and Georges Braque) or to hybrid literary efforts such as Seth Grahame-Smith’s Pride and Prejudice and Zombies or even T.S. Eliot’s 1922 poem “The Waste Land,” which appropriates text from sources ranging from the Buddha to Baudelaire. Nowadays, mash-ups are everywhere: in digital art, videos, film (Christian Marclay’s 2010, 24-hour-long film The Clock fuses together thousands of time-referencing movie and TV clips) and popular music. In the 1970s the first hip-hop DJs improvised on their turntables, inventing a set of techniques (scratching records, mixing songs, breaking down recordings into their constituent parts) that transformed music made by other artists into compositions that were simultaneously derivative and original. In ensuing decades rap artists sampled from other musicians’ work with increasing audacity. In 1990 Vanilla Ice hit it big with “Ice Ice Baby,” whose bass line is virtually indistinguishable from that of “Under Pressure,” a Queen and David Bowie collaboration from 1981, and MC Hammer’s “U Can’t Touch This” went platinum repeating the opening notes from Rick James’s 1981 “Super Freak.” Both rappers were later forced to give credit and compensation to the original artists.
Copyright law confers ownership of intellectual property on that property’s creator. The creator-owner is free to sell the rights to a work or to give someone permission to use it, but unauthorized use, called “infringement,” is forbidden, with certain exceptions. One of these is parody, which makes legal “Weird Al” Yankovic’s tune-thieving spoofs of songs by artists ranging from Queen to Michael Jackson to Coolio. Other exceptions, however, aren’t nearly as clear-cut, and lawsuits brought by copyright owners against artists who’ve sampled their music have produced mixed results. When jazz flautist James Newton sued the Beastie Boys—whose rap recordings are rife with sampling—for filching from one of his compositions, the court ruled against the plaintiff on the grounds that the three-note sampling did not constitute infringement. Yet when the rights holder of the Funkadelic song “Get Off Your Ass and Jam” sued the rap group N.W.A. for sampling an even smaller segment of music, the court found that any duplicating of a sound recording violates copyright law. That and other lawsuits have had a chilling effect on unauthorized sampling; today, musicians generally ply the safer route of obtaining permission before incorporating others’ work within their own.
Marcel Duchamp’s ready-made sculptures were essentially acts of theft. Though he sometimes slightly altered the objects he chose, Duchamp in most cases didn’t transform them; he simply presented them as his art. Nobody sued Duchamp: the objects were too humble and utilitarian—and the early 20th century wasn’t as litigious a time. Later artists who have made use of preexisting objects or images in nontransformative ways have, however, sometimes been slapped with lawsuits. The intentionally provocative American artist Jeff Koons (b. 1955) has several times been successfully sued for copyright infringement; he did, however, win one case in which the court determined that the alterations he made in transferring images from an advertisement photograph to a painting were sufficiently transformative to constitute fair use.
The sampling of bits and pieces of preexisting music by hip-hop performers differs from the wholesale ripping-off in which Duchamp so bemusedly engaged. But in the 1990s sampling had become so endemic and controversial that the satirical weekly The Onion (whose forte is the almost-believable fake news story) savaged the trend by reporting that rapper Sean “Puffy” Combs was releasing a song that sampled Michael Jackson’s smash hit “Billie Jean” in its entirety, adding nothing—a ready-made.