How can intellectual property rights, specifically copyright laws, impact artistic innovation, creativity, and trading on the secondary art market? In a recently published article in the Journal of Cultural Economics (Cuntz Sahli 2023), we are focusing on the Appropriation Art movement and make use of an important court ruling in the United States.
How can intellectual property rights, specifically copyright laws, impact artistic innovation, creativity, and trading on the secondary art market? At first glance, these interdependencies might not be obvious. The importance of copyright for artists and creative industries as an incentive for the creation and distribution of works has been well documented in the literature (Giorcelli Moser 2020). In a recently published article in the Journal of Cultural Economics (Cuntz Sahli 2023), we are focusing on the Appropriation Art movement and make use of an important court ruling in the United States. This ruling was described by the New York Times titled as “one of the most closely watched copyright cases to rattle the world of fine art’ and that it ‘set off alarm bells […] in museums showing contemporary art” (New York Times 2012). But what exactly is considered as Appropriation Art, how can we analyze such changes in copyright jurisprudence and what is their likely impact on the secondary art market?
The Appropriation Art movement is characterized by artists from the 1980ies, using pre-existing materials, such as photographs or advertising, to create new derivative artworks (Evans 2009). Prominent artists associated with the movement include Richard Prince, Cindy Sherman, or Sherrie Levine. An example of an appropriation artwork by Sherrie Levine is shown and described in Figure 1. What makes these artistic practices special is that they may infringe on the rights of original creators. This makes the movement a central ‘battleground’ for many copyright infringement cases. Generally speaking, copyright laws aim to balance economic incentives for, both, original and follow-on creators, while encouraging the commercialization of works and trading by art world intermediaries. As laws grant artists exclusive rights to their work for a certain period of time, other artists must obtain permission or license materials to reuse or build upon their predecessors’ work, often against payment of a fee or royalties. Accordingly, broader copyright terms and licensing cost hurdles might hinder cumulative creativity and limit follow-on innovation in art (Nagaraj 2016; Watson 2017; Reimers 2019).
Figure 1: Sherrie Levine, Fountain (Buddha) 1991. The artwork by Levine appropriates Duchamp’s original readymade, by transforming the object (back) into an ‘art object’. By appropriating original art from male artists historically dominating the art world, Levine’s work is also an expression of feminist protest. Image source: https://commons.wikimedia.org/wiki/File:Sherrie_Levine.jpg
Our paper examines the prominent Cariou v. Prince U.S. higher court case, which focused on the copyright infringement dispute between photographer Patrick Cariou and appropriation artist Richard Prince (Sarimento Haaften-Schick 2013). The 2013 ruling extended infringement liability to market intermediaries, such as galleries and auction houses, as we will argue, increasing legal uncertainty in the art market.
The research collects information on Appropriation artists and a control group of similar artists from roughly the same era which are not associated with appropriation techniques. We further collect a comprehensive data set of auction sales to analyze secondary market outcomes. Figure 2 shows the distribution of historic auction sales records by both group of artists. By visual inspection, we note that around the time of the court ruling, we observe diverging trends in the number of auctions. As a next step, in the empirical framework, we analyze and compare secondary market outcomes before and after the court ruling, such as the number of auctions, hammer prices, probability of listed auction sales, and the share of global auctions listed in U.S. auction houses. By using auction results from our control group of similar artists as a baseline, this empirical method sets up a so-called ‘differences-in-differences’ research design.
Figure 2: This figure shows the historic distribution of total annual auctions by appropriation artists (black line) and similar artists in the control group (blue dotted line), n=369’646. (Cuntz Sahli 2023)
We find robust evidence that global auction trade in Appropriation Art, at least temporarily, decreases and partially relocates to other, non-U.S. jurisdictions following the court ruling. Moreover, for artworks listed in auctions, the sales probability of potentially infringing (appropriating) artworks decreases in the same period. Effects are most pronounced for artists from the ’Pictures Generation’, an art movement that has pioneered appropriation techniques.
Our findings contribute to the understanding how market institutions like copyright can affect artistic innovation and cumulative creativity in figurative arts. In particular, the results show that broader copyright protection and extended liability rules can change market valuation (in terms of auction results). Moreover, whenever trading is responsive to changes in the legal framework, overall growth and general direction of certain movements in the figurative arts might change as well. As we have shown in the paper, the impact of legal uncertainty within the copyright framework trickles down to market intermediaries, such as auction houses and galleries, temporarily impeding commercial trade and limiting curation around follow-on innovation.
The research also adds to the policy debate surrounding the fair use doctrine (an exemption to copyright protection) under U.S. copyright law, which has been criticized for creating legal uncertainty due to its vague, standard-like nature (Beebe 2008). The paper provides quantitative evidence on the costs and market charges for imposing indirect liability on intermediaries within the fair use doctrine. Finally, the study documents how legal uncertainty around the fair-use doctrine, as reflected in U.S. copyright judicial decisions, can temporarily force the relocation of auction sales to foreign jurisdictions with less uncertainty. This finding is significant as it highlights the broader implications of copyright laws on the global art market and related industries.
The views expressed are those of the authors, and do not reflect the views of the World Intellectual Property Organization or its member states.
- Beebe, B. (2008). An empirical study of u.s. copyright fair use opinions, 1978-2005. University of Pennsylvania Law Review, 156:549–624.
- Cuntz, A., Sahli, M. Intermediary liability and trade in follow-on innovation. J Cult Econ(2023). https://doi.org/10.1007/s10824-023-09470-1
- Evans, D. (2009). Appropriation. Mit Press
- Giorcelli, M., & Moser, P. (2020). Copyrights and creativity: Evidence from Italian opera in the Napoleonic age. Journal of Political Economy, 128(11), 4163-4210.
- Nagaraj, A. (2016). Does copyright affect reuse? evidence from the google books digitization project. Evidence from the Google Books Digitization Project (May 8, 2016)
- New York Times (2012): https://www.nytimes.com/2012/01/01/arts/design/richard-prince-lawsuit-focuses-on-limits-of-appropriation.html
- Reimers, I. (2019). Copyright and generic entry in book publishing. American Economic Journal: Microeconomics, 11(3):257–84.
- Sarmiento, S. M. and Haaften-Schick, L. v. (2013). Cariou v. prince: Toward a theory of
aesthetic-judicial judgments. A&M L. Rev., 1:941.
- Watson, J. (2017). Copyright and the production of hip-hop music. Technical report, Working Paper.
About the authors
Alexander Cuntz heads the Creative Economy Section of the World Intellectual Property Organisation (WIPO) in Geneva.
Matthias Sahli is a research fellow at the World Intellectual Property Organization (WIPO) and a PhD candidate in economics at the University of Neuchâtel.
About the image
Generated with DALL E 2 using the keywords “copyright sign” and “andy warhol flowers”.