APPROPRIATION ART E DIRITTO D'AUTORE

Appropriation Art is generally defined as a form of contemporary art which borrows images from popular culture, advertising, the mass media, other artists and elsewhere, and incorporates them into new works of art. By taking these items out of their contexts and presenting them in new forms, combinations, or contexts, artists transform their meaning and force the viewer to reconsider his or her former understandings about a certain image. Appropriation art traces its origins back to Conceptual Art and, before, to the “readymades” of Marcel Duchamp, works (objet tout fait) consisting entirely of everyday objects presented largely unchanged as “art.” The originality and artistic value of these kinds of works lies in the new meaning associated with the work and in the artistic gesture, and not in its external aspect or form. Under a legal perpective, the main question arising out of Appropriation Art is whether the second work is a copy (thus, a counterfeit), a derivative work (requiring the copyright owner’s consent to exploit the work of art) or, instead, a totally new and original work. To answer this question, this dissertation examines whether the appropriation artwork can be considered original under a copyright law standpoint, and analyzes the relationship between the appropriated work and the second work. Sometimes the works of Appropriation Art can be considered lawful as parody, insofar as they transform the meaning of a previous work for comic effect, creating a new artwork. This dissertation also analyzes the transformativeness relevant under the fair use analysis within US copyright system as well as the key fair use Appropriation Art cases handed down by US courts. In particular, the analysis focuses on the Jeff Koons and on the Mattel cases, and addresses the Cariou v. Prince case, relating to the alleged copy by renowned appropriation artist Richard Prince of Cariou’s portraits of Jamaican Rastafarians for use in a series of paintings by Prince titled “Canal Zone”. In this case, the court held that the message behind the use of Cariou’s photos in “Canal Zone” was so different from Cariou’s message in the original portraits that Prince had transformed their meaning and therefore created new art. Italian courts addressed Appropriation Art only in one case, concerning the use by appropriation artist John Baldessari of certain works made by Alberto Giacometti. Finally, it is necessary to analyze Appropriation Art also under a trademark law standpoint, to assess whether appropriation of a mark can be considered trademark infringement.