Abstract

The use of photographs in works of art has given rise to threats of litigation for copyright infringement. Four well-known artists, Robert Rauschenberg, Larry Rivers, Andy Warhol and Sherrie Levine, appropriated photographs in their works of art, and were forced to settle with the photographer, or to stop using the strategy altogether. The dissertation argues in favor of a fair use exception that would permit the use of photographs in works of visual art. When this postmodern strategy of appropriation is employed, the artistic statement usually takes a critical stance, setting up a dynamic relationship between two artistic statements that critiques the tenets of the modern aesthetic; the strategy is suppressed by copyright law which is squarely based upon those tenets. ;The first part of Chapter 1 presents an overview of the modern aesthetic. The second part of Chapter 1 develops the notion of an artistic statement, focusing on postmodern artistic statements that critique the modern aesthetic. The first part of Chapter 2 presents a brief history of photography; the second part interprets four artistic statements of Rauschenberg, Rivers, Warhol, and Levine. Chapter 3 provides background about copyright law, including a history, a summary of its fundamental principles, philosophical theories used to justify copyright law, and the development of the requirement of original authorship that assumes a sole, individual author as the originator of the work. Chapter 4 examines the case of Rogers v. Koons in which a district court and the Second Circuit ruled that the use of another's photograph as a model for a sculpture violated copyright law. Chapter 5 argues that artists who employ the strategy of appropriating a photographic image should be able to avail themselves of a fair use exception. The first part of Chapter 5 employs a traditional fair use analysis; the second part considers some limitations that might be imposed on the fair use exception. The overall purpose of the proposed fair use exception for the use of photographs in works of art is to strike a balance between the rights of the photographer and the interests of the public in the vibrant and discursive forum