LONDON — Belgian artist Luc Tuymans, known for his paintings that rework existing photographic source material, has been found guilty of plagiarism in a European court for using a copyrighted photograph as the inspiration for an artwork. It’s rare that artists here in Europe look to the United States with any great sense of envy, but when it comes to copyright law it’s hard not to feel that we are lagging desperately behind. The legal environment here is so adverse for artists, it’s little wonder the United States continues to produce and attract many of the most influential appropriation artists.
Copyright was dreamt up in Britain in the 18th century, and at times it seems that it’s barely progressed since. The spirit of the law might be more or less the same today, but the way we view information and the way cultural products circulate in society has changed completely. We are all producers and appropriators, constantly sharing, reshaping, and sampling from this raging storm we call culture. Let he who has never retweeted a copyrighted photograph cast the first stone.
As a gentle nod to free speech and criticism, European copyright law includes a number of exceptions that function like a watered-down version of the United States’ concept of fair use. Among these is a rather limp parody exception, which might often prove the go-to defense for many artists challenged over their use of copyrighted material.
This was how it went in Tuyman’s case, but the verdict against him also demonstrates the trouble with this exception: it’s vague and deeply subjective. To qualify for it the work in question must change the original source material significantly, but it’s unclear if this means changing it materially, as Tuymans did, or visually, which he perhaps didn’t.
Not to mention the question of how the meaning of an image is changed in the process of the appropriation or reworking, which in the work of an artist like Tuymans is absolutely key to defining its originality and importance. To put an American example in context, an artist like Sherry Levine and her After Walker Evans series — in which she rephotographed Evans’s photographs and displayed them as her own — would probably fail to meet the exception criteria, despite having a new, original meaning.
Perhaps still more problematically, to qualify as parody a work must be considered humorous. The law functions with clear definitions and boundaries, but art and humour are two of the hardest concepts to define. Add to that the fact that humor varies widely across Europe, and that those in the legal profession are a notoriously humorless bunch, and we‘re left with a real mess. Deckmyn v. Vandersteen, the 2014 case which has helped to somewhat define the limits of the parody exemption, illustrates the problem: I don’t think the alteration made in the case is funny, but the Advocate General seemed to think so, and although the case has yet to be decided, it seems likely to go in favour of the appropriator.
This isn’t just a question of a rather quaint legal backwardness and vagary. The lack of adequate copyright exemption for artists has big implications. To paraphrase the remarks of Tuymans’s lawyer Michaël De Vroey following the verdict, if we look to artists to interpret, critique, and make sense of the world we live in, it seems deeply unrealistic to expect them to do this without referencing the visual media that have become central to our lives.
Many appropriation artists in Europe respond by simply shutting their eyes, ignoring the law, and hoping for the best, something that’s easier to do when you’re an artistic small fry than when you’re a big fish like Tuymans. A number of artists have fallen afoul of copyright law, including Damien Hirst, who in 2000 settled out of court over a similarity between one of his works, “Hymn,” and a children’s toy. Ironically, Hirst has also put himself on the other side of the courtroom, threatening creators he felt were breaking his copyright with legal action, including a 16-year-old. Breaching copyright can even become a political or artistic act in itself; in 2009 a number of artists flagrantly did so with with Hirst in protest against his litigiousness.
This need to take one’s life into one’s own hands in order to appropriate is particularly problematic for artists who want to make work about controversial topics. In these cases, the fact the artists have breached copyright might not be a real concern for the copyright holder (for example, a large multinational corporation), but the infringement might become a stick with which to punish the artists for their criticism, and a way to warn others from doing the same.
In a case like Tuymans’s, where there was a political commentary embedded in the work about the rise of the political right in Belgian, it’s conceivable that someone might take issue with the piece for reasons other than copyright. In effect, under certain circumstances, copyright law can become a danger to free speech.
Of course it’s important to protect the right of producers to profit from their work, but in societies where information has become such a key commodity, it isn’t realistic any longer to say that the maker of something can hold a total monopoly over it, and always define the terms of its use and appearance. As Mishka Henner, a Belgian artist known for his appropriation work, remarked on hearing the Tuyman ruling: “We might as well stop poets from using words they didn’t invent. Or photographers from photographing things they don’t own.”