차용미술(appropriation art)과 저작권

Appropriation art is an important post-modern movement. But the artistic practices of appropriation artists, which involve copying images of earlier art works or popular media or advertising, come into conflict with the traditional copyright law. So there are many disputes and litigation. 'Someone v. Koons' is a good example. But appropriation art is not the evil itself. It's not nothing. Even though it's not everything, it's something. One of the appropriation artist, Rauschenberg said that he had received many letters from people expressing their happiness and pride in seeing their images incorporated and transformed in his work. Of course someone who are appropriated, said that he(she) was stunned to see one of his images so obviously borrowed without recognition. But some appropriation art is a viable art form that ultimately benefits society by adding new works to the culture. So it should be protected and preserved. It should Not be destructed and destroyed as the infringing article. One who has a legal profession should be an arbiter and think out the solution. There are 2 meaningful proposed solutions to the conflict between appropriation art and copyright law. One is an expansive reading of fair use defense, the other is the adoption of fine art compulsory license. This paper proposes the latter. In that scheme second artists could appropriate a first artist's work and pay a compulsory license fee. For the introduction of compulsory license there needs to amend the current copyright law. For the amendment this paper introduces Judith Bresler approach. The revised copyright act would create guidelines that both the courts and artists could follow.