Throughout history, the concept of appropriation has been understood as an act by which an interloper takes the work of another without consent and uses it for a different, typically self-serving, purpose. This concept, however, has become increasingly misapplied by courts in the context of art, and is particularly flawed when applied to fashion art. Recent federal case law purporting to clarify the appropriation doctrine for the art world has only served to muddle it further, as judges have struggled to make determinations on issues of artistry. As such, the existing rules are not only muddy, but also specious, when related to fashion. This Article analyzes the weaknesses in the current judicial framework governing art appropriation and demonstrates why the existing framework should not apply to fashion as a unique and transformative form of art.
 When France and parts of Italy banned Marithé+François Girbaud’s appropriation of Leonardo da Vinci’s “Last Supper” in its advertising campaign (Figure 1), it was not because of any ostensible copyright violation. Rather, the advertisements were banned because they made offensive use of religious symbolism. While Marithé+François Girbaud argued that the female version of the fresco showed “the place of women in society today, which is a reflection of our changing values,” a French judge ruled that it presented “a gratuitous and aggressive act of intrusion of people’s innermost beliefs.” Apparently everyone forgot that the advertisement was based on a painting, and not the Bible. No one seemed to care about whether the advertisement was a transgression against da Vinci. In fact, one might recognize the piece as an extraordinary transformation of his work.
 In the same vein, there were no concerns about copyright infringement when Yves St. Laurent appropriated Piet Mondrian in creating his iconic Mondrian dress (Figure 2). This is because art appropriation is recognized as a valid, and valuable, artistic endeavor itself. Respected appropriation artists such as Andy Warhol, Sherrie Levine, and Richard Prince have created famously provocative works of art by using the work of others. Many in the fashion industry likewise embrace art appropriation in their own works, as well as in the advertising of them (Figure 3).
 As discussed more thoroughly in Part I of this Article, fashion itself is art, and fashion artists have created truly remarkable pieces by appropriating others’ artworks. Take, for example, L’Wren Scott’s transformation of Gustav Klimt’s Hygieia (Figure 4). Scott appropriated the original work from a fragment of Klimt’s painting, Medicine, which is one of a series of paintings on the ceiling of University of Vienna’s Great Hall. The splendor of this artistic appropriation is undeniable.
 Lately, however, United States federal courts have sought to limit art appropriation. Recent rulings from within the United States Court of Appeals for the Second Circuit (“Second Circuit”) have prohibited artists such as Richard Prince and the foundation representing Andy Warhol from using the fair use defense to claims of appropriation, or more specifically, copyright infringement. By rendering artists’ works indefensible as such, courts threaten to stifle artistic creation, including beautifully inspired fashion works like those created by L’Wren Scott. These rulings may create a chilling effect on the fashion industry and would deny the world the benefit of some of the most superb works of art that fashion artists create.
 In this Article, I will argue that the existing legal framework governing art appropriation is overly restrictive and should be relaxed, particularly as applied to the fashion industry. The increasingly prohibitive common law governing the fair use doctrine is contrary to public policy intended to support the continuing inspiration of artists in our society, as specifically charged by the United States Constitution. Accordingly, Part I of this Article demonstrates that fashion is art, both culturally and legally. In the same vein, Part II illustrates how fashion has historically made uniquely transformative creations when borrowing from other works of art which, as explained in Part III, must be supported. In Part III, I examine the legal framework surrounding copyright law and the right artists have to use others’ works fairly. I conclude with a discussion of the fair use doctrine as applied to fashion in Part IV and entreat courts to recognize the inherently transformative nature of appropriative fashion. Courts should interpret the fashion industry’s right to fair use liberally, so as to follow, rather than thwart, the directive of the United States Constitution to “promote the Progress of . . . Art[].”
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Jun 19, 2023
Michael Da Silva 
Open Access
