UCLA Entertainment Law Review

For centuries, artists ranging from Renaissance painter Raphael to

surrealist Salvador Dali have embraced the concept of originality

through imitation, drawing heavily from the works of their predecessors

to create new and original works of art. Despite the role that appropriation

has historically played in artistic culture, art that borrows

substantially from other works is more likely to be punished than

praised under our current copyright system.

Following the decisions against appropriation artists in Cariou v.

Prince and Rogers v. Koons, the future of art appropriation is increasingly

unclear. Although the Supreme Court has warned that judges

should not employ aesthetic reasoning in assessing works protected by

copyright, recent copyright cases suggest that judges are doing exactly

that. After showing how the open-ended nature of the copyright and

fair use inquiries can make judges particularly vulnerable to various

cognitive biases, this Article relies on Rogers v. Koons and Cariou v.

Prince to illustrate how fact finders can be improperly influenced by

known cognitive biases such as anchoring, hindsight, and confirmation

bias and could be tempted to substitute their own value judgments

when assessing an appropriator'sw ork.