Article by Alexandra E. Summa
Appropriation art is an American genre of modern art with roots to French Dadaism. In 2021, the United States Court of Appeals for the Second Circuit announced its decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, tightening the parameters of fair use in appropriation art disputes. This decision was especially controversial since it came from the Second Circuit, a court located in one of the most art-rich jurisdictions in the world. Conversely, in France, another region celebrated for its art, courts have developed a method of stewarding appropriation art that requires judicial inquiry into historical context. Mere months before Warhol, in Koons v. Davidovici, the Paris Court of Appeal analyzed a sculpture by assessing it under the French Intellectual Property Code and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, from the European Convention on Human Rights. In recent decisions, both U.S. and French courts have ruled against appropriation artists; however, elements of the French approach suggest it may be fairer. The Second Circuit failed to acknowledge the nuances underpinning appropriation art and instead focused on the visual similarities between artworks. This Comment argues that although France has yet to qualify appropriation art as non-infringing, its approach is superior to that of the Second Circuit because it compels courts to balance copyright law with artists’ fundamental right of expression. Studying how French courts adjudicate appropriation art disputes provides key insights for how this highly transnational area of law may be defined by the Supreme Court of the United States as it considers Warhol this term.
About the Author
Alexandra E. Summa, J.D. candidate 2023, Tulane University Law School; B.A. 2020, Harvard College. I would like to thank my advisor, Professor Elizabeth Townsend Gard, and all my wonderful friends and colleagues at the Tulane Law Review for their role in preparing this Comment for publication. I would also like to thank my family for cultivating my love for the arts, and especially my sister, Meredith L. Summa, for her friendship and enduring support.
Citation
97 Tul. L. Rev. 97 (2022)