Appropriation Art, Fair Use, and Metalinguistic Negotiation

Abstract

Abstract Appropriation art (AA) involves the use of pre-existing works of art with little to no transformation. Works of AA (often) fail to satisfy established criteria for originality, such as creative labour and transformative use. As such, appropriation artists are often subject to copyright lawsuits and defend their work under the fair use doctrine of US copyright law. In legal cases regarding AA and fair use, judges lack a general principle whereby they can determine whether or not the offending party has ‘transformed’ the original work. Further, it is not the case that there is some antecedent fact that could determine the outcome one way or another. I diagnose debates surrounding the transformative nature of works of AA as cases of ‘metalinguistic negotiation’ over what concepts we should attach to terms like ‘copy’, ‘transformative’, and ‘work of art’.