차용미술과 저작권의 충돌의 해결방안에 관한 재고

Although appropriation has been a leading artistic feature since the modern era,appropriation art is not a new movement and there has been a time-honored tradition ofcopying and tradition in art community. For centuries, artists ranging Renaissance painterRaphael to Édouard Manet have embraced and employed the concept of originality throughimitation, drawing from presidents to create new art works. However, appropriaton art that borrows or even directly copies other artists’ copyrightedworks or other cultural materials is more likely to be in conflict with a current copyrightsystem protecting exclusive rights of a copyright owners. Especially appropriation artists donot hide the fact that they appropriate images from other artists and challenge viewers torecognize the “genesis” of their works. Following the decisions against in Rogers v. Koons,Balnch v. Koons and Cariou v. Prince, the future of appropriation practices in artcommunity is increasingly unclear. This article addresses an inevitable conflict of appropriation art embracing portion ofother’s copyrighted works and copyright law protecting copyrighted works and offerspotential mechanisms for solving this conflict. Part II provides a brief overview ofappropriation art and fair use doctrine under the U.S. copyright act. Part III analyzes keyappropriation art cases addressing fair use doctrine, focusing on Cariou v. Prince thatbrought about heated discussions among legal field as well as art communities. Part IVdiscusses issues involving appropriation art under the current Korean Copyright Act andproposes legal alternative to solve potential conflict.