Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Last year, Andy Warhol lost an infamous copyright infringement lawsuit against photographer Lynn Goldsmith regarding an image of the pop singer Prince.  The focus of the conflict was the meaning of “transformative works” in the U.S. Copyright Act—whether Warhol’s print is transformative of the original photograph so that it qualifies as fair use. Both the and the   considered aesthetic characteristics of the two pieces, but such analysis seems to miss the point. As an avant-guard artist of his time, Warhol used the mechanical process of copying to challenge the conventional notion of art. It also engaged critically with rising capitalist culture and pop culture in post-war America. In this sense, the act of copying is the very medium of Warhol’s art.

There seems to have always been tension between artistic creativity and copyright law. Copyright, in the simplest terms, is “.” It protects the authors’ exclusive rights to reproduce and publish their creations. Artists, however, have long been engaging in deliberate and publicized copying as a form of artistic expression. The belongs to the long tradition of modernist art that questions the nature and definition of art itself. Terms like “ready-made” and “appropriation” appear in any introductory course to contemporary art. Besides Andy Warhol, other famous contemporary artists like and have also faced copyright claims. To many artists, copying is of critical artistic value because the action “” and “” of art. Yet the current law of copyright cannot fully accommodate the sophisticated theories of contemporary art.

New technologies, such as virtual reality (“VR”) and augmented reality (“AR”) further complicate things. Because of pandemic restrictions, many museums and galleries now rely on new media technology to attract audiences. The blockbuster Leonardo da Vinci at the Louvre, Mona Lisa: Beyond the Glass, gave viewers an interactive VR experience to explore the painting and its context. In other cases, museums invited artists to create derivative works based on museum collections. For instance, the National Museum of Singapore invited the Japanese art collective, teamLab, to create an using visual motifs from the museum collection. Similarly, Art Gallery of Ontario invited digital artist Alex Mayhew to create of the old paintings collected by the museum using AR technology. Exhibitions like these provide audiences with refreshing experiences, but they also require museums to exercise and navigate the legal problems.

The power and resources enjoyed by large art institutions do not go unchallenged. In 2019, a group of renegade artists developed an app called that mocked the iconic paintings by Jackson Pollock at the Museum of Modern Art (MoMA) in New 91��ɫ. Viewed through the app, Pollock’s paintings are either retouched or entirely replaced. The purpose of the artwork was to call attention to the power hierarchy and elitism in the art world. Although MoMA and the Pollock-Krasner Foundation stayed silent about the app, the paintings by Pollock are and technically could give rise to an infringement claim. It would be interesting to see how copyright law would deal with artistic creations that were meant to be offensive or even illegal.  

The authoritative nature of law seems to go against the inclination of art to break rules and challenge conventions. The law of “,” or “ in Canada, cannot satisfactorily address the questions raised by the changing practices of contemporary art. Luckily, the Supreme Court of the United States will further develop the law as it had decided to the dispute between Warhol and Goldsmith.

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Our very own Osgoode professors and feminist scholars, and presented a thought-provoking keynote entitled, “Copyright and the Moral Arts of Appropriation: Feminist and Postcolonial Perspectives”, at the Conference hosted by the of the University of Toronto on November 11, 2011. Linking the overarching conference themes of how appropriation affects different feminisms to the intellectual property rights of postcolonial societies, the presentation provided an intriguing insight into the conflicted worlds of economic rights, technology, knowledge-sharing and cultural preservation.

Speaking on the ideas developed in their paper “” (co-authored with Joseph Turcotte), both Professors Coombe and Craig explored the concept of digital appropriation with respect to developing societies, especially highlighting the impacts of the economics-based property rights management model of the contemporary global intellectual property regime on local communities. The concept of the ‘cultural commons’ here, they argued, was being eroded by the narrow application of intellectual property rights, which confined ownership to one or a few, effectively reducing the scope of societal development by the exclusion of crucial perspectives, especially those of women.

While Craig proposed that the WWW and emerging technologies could be used to enable the public to contribute to the creation of more egalitarian intellectual property rights, Coombe suggested that the very idea of ‘public’ needed an overhaul to include diverse voices, as the term was historically entrenched in gender and social inequalities. Both authors concluded that that “a more inclusive notion of stewardship” is necessary, and that intellectual property rights will only work favorably in postcolonial societies if they work symbiotically, not parasitically, with the communities they wish to benefit from.

Professor Coombe’s approach further involved a critique of North American public domain policies as “too individualistic with their emphasis on public freedoms,” and cited the incompatibility of intellectual property rights derived from these ideas with postcolonial societies. Intellectual property, she said, was more of an enclosure to these societies, and because of this, the notion of the ‘public domain’ itself became “a modern bourgeois term,” that restricted cultural development instead of freeing cultures. According to Coombe, current intellectual property concepts only supported the continued dispossession of local communities, effectively becoming a tool for recolonization. Citing the role of women in farming communities in the developing world, Coombe emphasized the importance of vernacular property rights, including knowledge of land use and agriculture that was passed down orally, “through networks of women’s trust.”

She also argued that with moves such as the patenting of seeds, or preventing cross-breeding of seeds, intellectual property rights were doing more than just preventing innovation in agricultural development— they were denying communities the means to propagate their own intangible wealth of social history, effectively debilitating the already-damaged fabric of postcolonial societies. The answer, according to Coombe, is to broaden the existing perception of private goods and the public domain, and to ensure that intellectual property rights are not just involved in protecting tangible expression, but that a novel “postcolonial ethic of stewardship” can give the intangible contribution of distinctive groups their due.

Professor Craig also drew on a relational theory of copyright law and suggested that, in order to be legitimate, a system of copyright must provide access to various cultural landscapes and must be modified to create spaces where the process of authorship enables “ongoing social dialogue as part of cultural conversation, which then helps shape communities.” The current practice of using copyright law to put forward proprietary claims is a form of Lockean possessive individualism, argued Craig, and only propagates the marginalization of the same groups that have suffered due to exclusion historically. This effectively creates the same problems in intellectual property rights as faced by real property management regimes, because copyright law "wants to believe that expression is created in a vacuum," rather than being a complex interplay of various influences. The solution, according to Craig, lies in open-access initiatives like the (A2K) movement, which is built on collaborative knowledge sharing across cultures. Craig also pointed out that feminism and open-access complemented each other perfectly, since both were concerned with “prioritizing the marginalized and countering private appropriation,” and were “optimistic about technology’s capacity to destabilize the existing power structure.”

Tied into one of the conference’s main concerns of how appropriation could be used in a positive context, the keynote focused on advocating for a more nuanced approach that preserved the uniqueness of postcolonial societies and the “need to protect the ‘we’ with more humility.” It provided a worthy segue into the conference’s second and final day, where many of the questions raised by Professors Coombe and Craig were discussed and debated, and created the background for further dialogue on feminism and the politics of appropriation.

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