A History of Art as Power: Why Fair Use Is No Surprise
A History of Art As Power
Fair use has remained a subject of great debate and criticism. The fair use doctrine allows artists to utilize a limited amount of copyrighted material without acquiring permission from the copyright holder. It is based on a theory that the new work adds original expression, essentially transforming the original to emulate a completely new purpose or meaning. While scholars continue to resist fair use – some arguing it is a blatant acceptance of infringement without consequences – the concept seems to parallel years of art history. Perhaps the issue is that Intellectual Property (IP) scholars focus too much on the history of IP rights and not enough on the history of the treatment of artwork. Throughout this article, I will trace a line of inference from ancient art, to the 70’s feminist movement, to present day, showing how the attitudes and uses of artwork to emulate power and social and political opinion, rationally lead to modern adoption of the fair use doctrine. Understanding how art was utilized in history, it appears clear that fair use is not a farfetched IP concept, but one that mimics the systematic attitude towards and treatment of artwork for thousands of years.
It is long established that art is understood as power. It is the ability to portray and manipulate one’s images to maximize visibility of strength and authority. Used by the royals and high-ranking individuals for thousands of years, art and architecture stood as a symbol of wealth and power. Whether referencing the ancient pyramids of Egypt or the use of regal imagery on currency, people of influence have continuously depended on the ability to commission and erect art that stands as an image of their power.
Take for example the figure of King Menkaura and his wife Mycerinus from the 4th Dynasty of Egypt, dating back to 2490 – 2472 B.C (fig. 1). Looking to the structure of the legs, notice that King Menkaura’s foot is strategically placed affront his other leg, and those of his wife. The use of this projected left foot was systematically utilized to visually display regal power and authority. This tradition carried on through a multitude of cultures, even influencing early Japanese art.
Entering the Roman Empire, there are two notable discussions pertaining to Roman art. First, Imperial Roman statuary continued the tradition of utilizing art as a mode of artistic expression of power. Take the Augustus of Prima Porta (fig. 2). Art historians believe Augustus’s adopted son, Tiberius, commissioned this piece in 15 A.D. as a dedication to his father. Within the breastplate, scenes of the Roman victory over the Parthians were depicted as a form of political propaganda for the viewer to recall the significance of Augustus’ role in securing the Roman Empire.
The second point lies with our knowledge that the Romans were notoriously known for stealing Greek statue design, emulating these constructions with certain manipulations and additions. Art was creative capital and a way to implement artistic power in one’s culture by copying and modifying the works of another. Even Augustus of Prima Porta is believed to be a copy of a Greek bronze original, dating back to 20 B.C. However, Tiberius commissioned the copy with the addition of the victory scenes on the breastplate, transforming the ultimate purpose of the work from one of aesthetic pleasure to one of political significance. Starting to sound like the basics of fair use?
While dependence on prior existing works seemed like a form of flattery, there likewise existed a world of defacing and destruction as a mode of exerting power over the history of another culture or individual. Hatshepsut was an adored pharaoh of Egypt, and the first female ruler of her time. Following the death of her husband Thutmose II, she took the thrown over her stepson Thutmose III. Hatshepsut ruled until her death in 1457 B.C. and was buried in the Valley of the Kings in the Djeser-Djeseru mortuary temple. Thutmose III reclaimed the throne after his stepmother’s death. Angered by his previous denial of the throne, he sought to erase Hatshepsut from history. He defaced her image and titles, tore down her statues, and attacked her monuments as a symbol of diminishing her everlasting power and authority in Egypt (fig. 3). Not only did this damage the permanency of her power, but her ability to exist peacefully in endless death. Art in this context was more than a symbol of power. It was an essential component of her journey to eternal life.
This tradition of defacing and destructing art carried on as a powerful tool of stripping power from one and exerting it through another. Whether utilized in the context of 17th century Byzantine iconoclasm, Adolf Hitler’s destruction of art in World War II, or the most recent damage inflicted on ancient art in the Egyptian National Museum in 2011, control of past art is intertwined with control of power.
The 70’s Feminist Art Movement
This notion of reclaiming power through control of art translates into the 70’s feminist movement, where artists focused on modifying famous master works to empower sociopolitical messages. Take Robert Morrison and Carolee Schneeman’s, Site (fig. 4). The work is a live performance of Manet’s Olympia. Although Carolee Schneemann was no more than a model in this context, she was a famous feminist artist, known for her shocking and thought provoking performance pieces. While Robert Morris intended this piece to be a commentary on the relation of sight and sound, Schneemann had her own agenda within the work. Schneemann was subsumed with the history of Olympia. Olympia was an artist, displaying works in salons that sometimes refused the works of masters like Manet. Schneeman’s fame was not derived from her artistic ability, but instead, from her participation as a model in Manet’s Olympia. Schneemann found it rather appropriate to recreate the master using herself as the model, emulating the very fear of being remembered not for one’s talent, but for one’s beauty in a single work of another. Schneemann and Morris transformed the original Olympia into a commentary performance. It transformed the original purpose into one the original artist could have never intended. Here, transformation of the original gave power to Schneemann’s voice.
Likewise, in Mary Beth Edelson’s Some Living American Women Artists/Last Super, she depended heavily on prior existing works to emulate sociopolitical commentary. In this case, the artist took a group self-portrait to consider the gendered nature of Christian narratives, in particular through the western fine art tradition. She parodied Leonardo da Vinci’s Last Supper, a work of tremendous cultural importance, and utilized the context as a means of affirming the empowerment of women as artists. Each religious figure was strategically replaced by well-known female artists, framing the work in its entirety with images of famous female practitioners. It was a dual commentary on the paternal tradition of Christianity and the modern acknowledgment of empowered women. Again, transformation of the original empowered the political message engrained in Edelson’s work.
How Artistic Power Makes Sense of Fair Use
Throughout all of these historical pieces two points are clear. One, art has remained a mode of empowerment, giving artists a voice and their subject matters significance. Second, cultures have systematically depended on prior works to emulate their opinions and concerns. Modifying existing works is a direct means of empowering ones one purpose. Whether it is through defacing a work, transforming the original subject matter into a symbol of diminished significance (fig. 3); copying and adding to an existing work to enhance power and valiance (fig. 2); or recreating iconic masterpieces to transform the meaning to one of sociopolitical importance (fig. 4 and 5); artists have consistently depended on the ability to create new expression off existing works to establish their voice. Even in a modern context, Shepard Fairey’s Hope beautifully demonstrates use of a photograph to transform the work into a symbol of political hope and power (fig. 6).
The ability to transform existing works has remained a direct path to artist self-empowerment and empowerment of subject matter. Given this trend for thousands of years, it should not come as a shock that the law makes room for artists to maintain this artistic convention. Although scholars continue to argue the various reasons for eliminating fair use law, it would ignore the fundamental custom of artists to access prior works for their own artistic expression. So then, is fair use law really that farfetched? Or in reality, is it consistent with years of artistic tradition?
 Museos Vaticanos, Augustus of Prima Porta, available at http://mv.vatican.va/4_ES/pages/z-Patrons/MV_Patrons_04_03.html
 Dr. Joyce Tyldesley, Hatshepsut and Thutmosis: A Royal Feud?, available at http://www.bbc.co.uk/history/ancient/egyptians/hatshepsut_01.shtml.
 Priscilla Frank, Carolee Schneemann, Feminist Performance Pioneer, Talks “Olympia”, Deodorant and Selfies, Huffington Post Arts and Culture, available at http://www.huffingtonpost.com/2013/12/11/carolee-schneemann_n_4415261.html.
 Marsha Meskimmon, The Art of Reflection: Women Artists’ Self-Portraiture in the Twentieth Century, 58, Columbia university Press (1996).