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13 Colum.-VLA J.L. & Arts 103 (1988-1989)
Culture Ventures: Artistic Appropriation and Intellectual Property Law

handle is hein.journals/cjla13 and id is 109 raw text is: Culture Vultures: Artistic Appropriation and Intellectual Property Law by JOHN CARLIN* A person has as his substantive end the right of putting. his will into any and every thing and thereby making it his, because it has no such end in itself and derives its destiny and soul from his will. This is the absolute right of appropriation which man has over all things.1 For the past twenty years neither matter nor space nor time has been what it was from time immemorial. We must expect great innovations to transform the entire technique of the arts, thereby affecting artistic in- vention itself and perhaps even bringing about an amazing change in our very notion of art.' It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illus- trations, outside of the narrowest and most obvious limits. At one ex- treme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.- INTRODUCTION Mass reproduction and its dissemination through the media has changed the nature of modern art and life. After almost a century of * J.D. 1988, Columbia University School of Law. Associate, Paul, Weiss, Rifkind, Wharton & Garrison. John Carlin taught art history at Yale University, Williams College, Connecticut College, SUNY Purchase and Columbia University. He has curated exhibitions at the Whitney Museum of American Art and elsewhere. He currently practices corporate and en- tertainment law. 1. G. HEGEL, PHILOSOPHY OF RIGHT § 44 (1969). 2. P. VALERY, THE CONQUEST OF UBIQUITY IN AESTHETIcS 225 (1964), quoted as the head- note to Benjamin, The Work of Art in the Age of Mechanical Reproduction, ILLUMINATIONS 217 (1969). 3. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). The context in which Holmes uttered this statement related to copyrightability, not to infringement. Still, the underlying idea that judges should remain sensitive to aesthetic criteria that they might not completely understand or agree with remains relevant in the context of whether appro- priation should be considered a fair use or an infringement. 4. Marshal McLuhan was among the first to note that modern means of mass reproduc- tion have shaped our consciousness, and not just entertained us or made our lives more effi- cient. See, e.g., M. McLUHAN, UNDERSTANDING MEDIA: THE EXTENSIONS OF MAN (1964). One of

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