Influence, appropriation, and plagiarism

Recently, there have been a number of high-profile lawsuits, internationally, that revolved around the practice of appropriation in art – the use and interpretations of existing images by other artists. One involved the 1984 Orange Prince painting by the American pop artist, Andy Warhol, which was based on a 1981 photograph of Prince by celebrity photographer, Lynn Goldsmith, and part of a series by Warhol on the subject. Ironically, this lawsuit was launched many years after the original art works were created, and, furthermore, Warhol had died in 1987.  The lawsuit was a complicated one, and pertained to the planned licensing of the silkscreen series by the Andy Warhol estate, but what was ultimately at stake, legally and quite belatedly, was whether Warhol’s interpretation involved sufficient transformation to amount to “fair use” of its photographic source. After a lengthy court battle, the Warhol estate lost the case when the US Supreme Court ruled in favour of Goldsmith.

In a recent documentary, “WHAAM! BLAM! Roy Lichtenstein and the Art of Appropriation” (2022), another American artist of the same pop art generation, Roy Lichtenstein, who died in 1997, was accused of stealing the images of comic strip artists such as Hy Eisman and Russ Heath, to produce paintings which now sell for millions of dollars, while most of the comic strip artists Lichtenstein cited struggled financially. To put this in its proper context, Lichtenstein’s sales record, thus far, amounts to US$165 million dollars for his painting Masterpiece (1962), in a 2017 private sale.  A significant part of Lichtenstein’s oeuvre involved such appropriations, from comic strips and well-known art works, and they were often much closer to their sources than Warhol’s.

Appropriation is, however, common practice in contemporary art. Many years ago, I wrote my master’s thesis, at Ghent University in Belgium, about “Art about Art” in the context of pop and concept art, much of which involved exactly the sort of appropriations and interpretations under discussion here and none of which were challenged, legally, at the time of their creation. Appropriation has, if anything, become even more common in contemporary art since then, and so have the contentions that surround the practice. The use of artificial intelligence (AI) in visual production, which actively appropriates available images, has only added to the anxieties that surround the practice, and the National Gallery of Jamaica, for instance, recently prohibited the submission of AI produced work for its upcoming The Face of Us exhibition because of copyright concerns.

Most, if not all art is of course influenced by other art, directly or by means of shared cultural context. That has always been so, as an integral part of how art functions, socially and culturally. Active appropriation of existing art works takes this a step further but also allows for various kinds of commentary on the original and its cultural significance. It can, for instance, be a powerful form of critique. The African-American painter and sculptor Kehinde Wiley, best known for his Obama portrait, cites well-known works of art from the classical European canon, with artists such as Anthony van Dyck, Peter Paul Rubens, Diego Velazquez and Jacques-Louis David. He reinterprets these by replacing the original subjects by Black models in contemporary clothing, in what is a powerful critique of the White supremacist assumptions that are embedded in the sort of art he cites. Wiley’s references involve significant visual transformations, however, whereby the link to the historic work of art that inspired it is often evident only through the title, in which he always credits his sources (and this credit is, in fact, an integral part of the work’s critique). A number of Black artists, such as the Cuban-born, Chicago-based painter Harmonia Rosales (who also has Jamaican family connections) are producing similar critical appropriations.

A Caribbean perspective

These considerations are also relevant to the Caribbean, as artistic appropriation is also practised here, while images that have been produced here are widely cited elsewhere. Just browse the International Reggae Poster Contest website and you will see how many posters involved the appropriation and interpretation of widely circulated photographs of Reggae musicians, most of which are almost certainly not in the public domain. There is the famous case of Guerrillero Heroico (1960), the famous portrait of Che Guevara by the Cuban photographer Alberto Korda, which is regarded as one of the most famous photographs, globally, and certainly one of the most commonly reproduced and appropriated ones, on posters, paintings, T-shirts, tattoos etcetera. It represents the ultimate image of the romantic, and handsome, revolutionary hero.

The photograph was taken at a memorial for the victims of the La Coubre explosion in Havana on March 5, 1960, and is actually a crop of a somewhat larger image. Korda made it available for use by other artists to produce memorial images after Guevara was executed in 1967 in Bolivia. Since then, the image has led a life of its own although Korda never earned a cent for the use of the photograph. Korda, who died in 2001, took the position that the image could be used for purposes that were consistent with what Che Guevara stood for, ideologically. There have, however, been a few lawsuits against the unauthorized commercial use of the image: in 2001, for instance, Korda successfully sued Smirnoff Vodka which had used the image in one of its advertising campaigns (and donated the settlement to the Cuban medical sector).

Some years ago, a young Jamaican painter produced a painting that made reference to the famous painting Lawdy Mama (1968) by the African-American painter Barkley Hendricks. When the work was shared on social media, a “lynch mob” quickly gathered, ready to “cancel” the young artist as a plagiarist. I had to intervene with a more detailed comparison of the two works, which illustrated that there was, in fact, significant interpretation and that the Jamaican artist’s work was substantially different from the original, although it made clear reference. The only thing that was missing at the time was that he had not credited his source and he subsequently modified his title accordingly. And that, I believe, should be the norm with such appropriations.

And, more recently, there is a lawsuit against the Barbadian-Scottish artist Alberta Whittle (who represented Scotland in the Venice Biennale last year) for her alleged unauthorized use in a new work of manipulated zinc fence panels that had previously been part of an installation, The Venny The Jumps (2018) by the Scottish artist Mary Redmond. The latter had, allegedly, left the panels for disposal with Hospitalfield House Arts Centre, also in Scotland, where she had been artist in residence, and the organization subsequently allowed Whittle to use the sheets as material for a new work. What is at stake here is whether the zinc sheets ought to be regarded as a substantive part of a work of art, or discarded material that could be recycled freely. The matter is presently before the courts, and it is best not commented on too much, but it seems to me that this whole unfortunate affair could have been avoided if the institutions involved had relied on clear written agreements between the artists involved rather than vague and possibly misconstrued understandings.

More broadly, the recent controversies have significant implications for the use of third-party sources in the visual arts, in a context which is becoming more insistent on enforcing intellectual and creative property rights and far more litigious, especially when big money is involved. The big question arising is, however, whether the current trend of hard-line, litigious responses to appropriation is good for artistic creativity, and where exactly the lines should be drawn between ethical, creatively productive influence and appropriation on one hand, and copyright infringement on the other.

Or to put it differently, we need to ask when influence and appropriation shade into plagiarism. None of this, however, means that artistic influence is necessarily suspect or appropriation out of bounds but those who want to appropriate the work of other artists should do so with greater care and consideration, especially when the source is still in copyright or subject to other ownership claims, and safeguard mutual interests with acknowledgements and written permissions where this is appropriate and possible.

Dr Veerle Poupeye is an art historian specialized in art from the Caribbean. She works as an independent curator, writer, researcher, and cultural consultant. The second, revised and expanded edition of her best-known book “Caribbean Art” was recently published in the World of Art series of Thames and Hudson. Her personal blog can be found at veerlepoupeye.com.