The Status of Fair Use in the Jeff Koons Era

Jeff Koons, Fait d’Hiver (1988)

Interesting article on the five lawsuits brought against Jeff Koons for his appropriation of copyrighted works. Depending on who you ask, the doctrine of fair use has either been clarified or muddled. One thing the ’80s could not have foreseen was the ubiquity of the internet, and how it facilitated access to images and content. Given this technological invention, it is becoming clear to courts of law, and ipso-facto, to artists, that “intent” plays a major role in deciding whether a use of a copyrighted work is “fair.”

The concept of “intent,” along with licensing, might be the two areas that define appropriation art today. As a side note, one thing we have noticed in the last ten years (during panels and lectures on copyright and appropriation) is how artists have radically shifted their views on appropriation. In the late 2000s, artists were about 90% in favor of appropriation regardless of need or intent. Today, that tide has turned to about 90% against appropriation without intent or permission.