The other day, I asked why stealing a wallet was not appropriation art. Maybe it’s too obvious a question, but unless I’m missing something the number of reactions was rather small (if you exclude a minor flurry of tweets). But regardless, there were some great posts, here’s what I found. (more; updated below)

Darren Campion published a post the same day I published mine, talking about what makes some of Richard Prince’s work very relevant (emphases in the original):

Yet all this attention being given to his methods rather than the content of those images he is so often accused of stealing conceals the rather inconvenient fact that his best work issues a daring set of challenges to our understanding of photography as a social currency. In dealing variously with cowboys, girlfriends and celebrities Prince reaches into the most profound archetypes of American culture, seeing how the proliferation of such images, their endless reproduction, effects how we might build a particular vision of ourselves - and how that vision inevitably becomes a commodity understood in photographic terms.

Well, there it is, the transformative aspect - included in the “fair use” clause of (US) copyright law. That transformative aspect is the crux for most appropriation cases in the visual-arts world.

Needless to say, once you talk about physical objects - as I did - people will inevitably say that of course taking a physical object is not the same as taking something intangible, in particular since intangible stuff often can be reproduced in an infinite number without taking away anything from the original (in fact the idea of an “original” even is flawed). Donn Zaretsky went straight for it and asked:

What if, after I took your wallet, you still had your wallet?

This had Sérgio Muñoz Sarmiento respond:

The rabbit in the hat to this argument is this. If I photocopy or rephotograph a copyrighted image exactly as it is, or with little to no transformative change, and use it to make paintings, t-shirts, mugs, postcards, or heck, even three-dimensional sculptures, then what harm is there to the copyright holder of that image? Presumably, none. The original copyright holder still has the image. True, but not so fast.

The problem with the above hypothetical is that makes property law and intellectual property law synonymous, while simultaneously eviscerating copyright doctrine and its mandatory “fair use” analysis.

That is really where my little analogy - stealing a wallet versus stealing an image - breaks down. Sérgio Muñoz Sarmiento (emphases in the original):

Still assuming we’re not in a Star Trek episode, we don’t use property law to dissect the above scenario; we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright’s “fair use” schema and its four non-exclusive factors.

As Donn Zaretsky notes in a follow-up post:

That’s quite right, and there is no analogous schema when it comes to personal property: we don’t ask whether taking someone’s wallet was educational, or a parody, etc.

Michael Rushton responded to the exchange of posts writing (my emphasis)

it is not an all-or-nothing problem, since some appropriation, some fair use, increases creators’ abilities to make new and interesting work. The optimal fair use provisions establish a balance between maintaining incentives for new work and for the ability to build upon existing work.

In a nutshell, that’s exactly what I was after when I wrote my original post, that “balance between maintaining incentives for new work and for the ability to build upon existing work.”

You cannot claim that taking someone else’s image(s) is always fine, just like you cannot claim that taking someone else’s image(s) should never be allowed. It’s all about the balance.

If I find other comments/reactions to my original post, I’ll add updates here.

Update (5 May 2011): This is a very worthwhile read.