Contemporary Art on Trial - The Fundamental Right to Free Artistic Expression and the Regulation of the Use of Images by Copyright Law

This chapter reviews a set of recent court decisions convicting famous contemporary artists for copyright infringement in cases of appropriation art. It is argued that these decisions not only totally disregard the artistic context in which these takings from previous works occur but also wrongly assess the legitimacy of these artistic expressions with regard to fundamental rights protection in our democratic society. Denying the possibility of art to construct a discourse about a previous copyright protected work, about the act of copying itself or even about the copyright system and its conception of ownership amounts to a misuse of copyright for purpose of censorship, as it is the essence of art to be able to express ideas without seeking for permission by the state or by private entities. Moreover, these decisions endanger the exhibition of contemporary art worldwide as often museums or art galleries have been jointly convicted with the appropriation artists. As a consequence, there is a serious risk that cultural institutions in the future will be overcautious when choosing to expose certain artists in order to avoid repeated and costly copyright claims. In order to address these shortcomings of the copyright system, the chapter propose to rethink the boundaries of copyright law and to introduce into the European legal framework a flexibility clause based on criteria developed by the freedom of expressioncase law of European courts.