This article examines visual art in light of the letter and the spirit of the Constitution's Copyright Clause and the Copyright Act of 1976 (“Act”) and concludes that artists should have the freedom to copy works, not only of popular culture, but of all kinds. In other words, people creating art should be permitted to copy anything and everything. This is not to suggest that copyright serves no purpose: destroying the copyright edifice merely to protect the ability of certain artists to create would be dangerous and foolhardy. Practical limitations on an artist's privilege to copy can be imposed to preserve copyright's incentives for creation. An artist's privilege to copy may at first seem extreme, but closer examination will reveal that both copyright theory and copyright owners can accommodate such copying. To test the proposed privilege, this Article will use a genre of art--appropriation art--that has gained some notoriety in the art and legal worlds because of its obvious and deliberate copying. Appropriation art will therefore serve as a paradigm; if the proposal can justify copying by an appropriation artist, then it will also justify less extreme copying. Let us begin, then, by examining two scenarios involving artistic appropriation as it is presently practiced.
15 Cardozo Arts & Entertainment Law Journal 249-280 (1997)