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Copyright Guide: Copyright and Art

Appropriation in Art, Cultural Appropriation and Infringement

Appropriation in Art, Cultural Appropriation and Infringement

DISCLAIMER

All of the following content is not to be considered legal advice.

It is to be considered as information ONLY.

Appropriation Art

Appropriation art is a practice, or strategy by which an artist makes use of another work of art, in whole or in part, in order to create a new work. The Tate Gallery has a very good definition and description of modern and contemporary appropriation art.

Please click this link to read: Appropriation – Art Term


Cultural Appropriation

Cultural appropriation is the practice by which the material, symbolic or spiritual expressions of one culture are taken, adopted, adapted or exploited by another culture. This type of appropriation may be deliberate or inadvertent and often employs stereotyping and other denigrating and exploitative intentions. A subjugated culture often has little recourse to challenge this type of appropriation. In Canada, the colonial framework of copyright law does not adequately address the customary laws of Indigenous cultural expression and traditional knowledge. 


Customary laws protect the use of cultural expressions that are specific to a nation or community. These laws can govern designs, music, dance, stories, etc. Some rights could belong to certain families, or be determined by seasonality, spiritual rites, or special events. The context is vast and assumptions should not be made without appropriate consultation. 

Please see the WIPO overview on Customary Laws:

CUSTOMARY LAW, TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY: AN OUTLINE OF THE ISSUES

Also, please read the CFLA-FCAB Statement on Indigenous Knowledge:

POSITION STATEMENT INDIGENOUS KNOWLEDGE IN CANADA'S COPYRIGHT ACT ISSUE: Canada's Copyright Act does not protect Indigenous

For further background of cultural appropriation in the context of Indigenous art, read the interview “Dirty Words: Appropriation” from Canadian Art:

Dirty Words: Appropriation – Canadian Art


Infringement

If you make use of a work that you do not not own or have permission to use, you may be violating one or more exclusive rights of the work’s copyright holder. This may include making reproductions of a whole work or part of a work, performing or exhibiting a work, or distributing a work. 

Infringing copyright has risks and if you are violating copyright you may be presented with an injunction to stop making use of the work, or you may be ordered to destroy the infringing copies. You may also be ordered to pay legal fees in a lawsuit, or pay for the loss of revenue to the copyright holder. 

The Art Law podcast has an episode detailing a copyright lawsuit between Lynn Goldsmith and the Andy Warhol Foundation. While based in US copyright law, it is a good introduction to the legal context of appropriation in art. Please listen here: Fair Use and Andy Warhol: The Line Between Appropriation, Copying, and Inspiration Is Not Clear – The Art Law Podcast

For more context to the question of when artistic ‘borrowing’ or ‘appropriation’ become copyright infringement, please watch the video “The Case For Copying”

Link to video: The Case for Copying