Can works of art be plagiarized?

«Art comes from art» - but where does the plagiarism start?

If there is one constant in art history, it is the so-called appropriation: Since ancient times, artists have been copying from other artists - for very different purposes. This practice is not always easy for lawyers, as the Law Faculty of the University of Basel demonstrated at a conference.

This Titian has it as a model and model: Two of the three speakers who addressed the principle of artistic appropriation at the “Art and Law” conference of the Law Faculty of the University of Basel referred to the great master of the Italian Renaissance deal with possible legal consequences.

The Heidelberg art law specialist Erik Jayme referred to Gerhard Richter's series of paintings “Annunciation after Tizian”, the title of which already indicates that the old star of the contemporary art scene appropriated the motif, composition and color of the original by Tizian. And yet the alienated paintings are clearly recognizable as typical Richter works.

Art historian Andreas Beyer presented Rubens ‘“ Fall of Man ”with Adam and Eve from 1628/29 as an example. The painting is recognizable as a typical Rubens, until it is contrasted with Titian's "Fall of Man" (around 1550), which was painted almost 80 years earlier. Rubens clearly copied from Titian, even if he changed Adam's body position.

Quoting allowed

There are two particularly conspicuous and, due to the popularity of their creators, spectacular examples of the artistic appropriation of motifs or entire works of other artists - a principle that runs through the entire history of art. Since postmodernism, one speaks of appropriation art. In contrast to plagiarism or forgery, the aim here is to create a new work of art in its own right. Law professor Jayme spoke of "second art" in his lecture.

With the “second art” you quickly find yourself in the “twilight of law”, as Jayme put it. When is a copy a forgery or a plagiarism that is objectionable under copyright law, when is it an independent work that can invoke artistic freedom or freedom of expression?

Aura of the original

And this is where it gets complex, as Jayme pointed out. Because while the first artist can invoke his copyright, the second artist is entitled to artistic freedom. At least when he parodies the first art, transforms it into a caricature or quotes it in a pastiche, i.e. in the style of other painters. In these cases, the first art is taken up to achieve another purpose.

Appropriation Art requires that one's own statement be evident.

Jayme argued that the law should not hinder the development of art. The Munich copyright specialist Gernot Schulz restricted: Just because copying is technically simple, for example through digital reproduction methods, does not allow effective making. Like Jayme, Schulz pointed out that with Appropriation Art, a separate statement must always be evident. The idea of ​​questioning the original term alone is not enough.

The legal assessment of whether artistic appropriations are permitted quotations or copies that are objectionable under copyright law is not easy - in the fine arts it is apparently even more difficult to assess than in music, where plagiarism cases are almost part of everyday court life. This is indicated by the contemporary examples presented in the presentations. In contrast to Titian and Rubens, these were not very spectacular examples by not particularly well-known artists. With Jeff Koons or Luc Tuymans, for example, there would have been more popular examples that have already been dealt with in court.

There was as yet no copyright law for the big names Tizian and Rubens that were put forward. The much-cited “aura of the original” from Walter Benjamin's famous essay “The work of art in the age of its technical reproducibility” did not yet play an essential role. So when Rubens came to work at Tizian's one way or another, he had no complaints about copyright infringement to fear. And even Gerhard Richter could have repainted Tizian with impunity, brushstroke by brushstroke, because the copyright protection expires 70 years after the death of the first artist.

The first copyright process

This of course also applies to the old master Albrecht Dürer (1471–1528), whom art historian Andreas Beyer presented with several examples. The artist, already very popular during his lifetime and therefore often copied, turned directly to potential imitators. To his engraving "Marienleben" he added a postscript with a harsh warning to copiers:

"Woe to you, fraudsters and thieves, for the work of others and ideas, don't let it occur to you to lay your brazen hands on these works",

It says there with the reference to the privilege of copy protection, which was granted to him by the Emperor of the Holy Roman Empire.

Because this protection against pirated copies was limited to the territory of the Reich, Marcantonio Raimondi was able to make copies of Dürer's wood engravings with impunity in Venice. At least that is how Beyer sees it, other art historians cite sources that say that one of the - the first - copyright lawsuit actually came about.

Expert judgment

Who decides when a legally permissible appropriation, i.e. appropriation art, is to be considered or a copy that infringes copyright? A basic principle of art history is touched here, namely that art comes from art, as Beyer put it. Each new work of art is ultimately based on existing pre-images. A court reaches its limits here and is accordingly dependent on experts.