UCLA Entertainment Law Review
Drawing Lines: Addressing Cognitive Bias in Art Appropriation Cases
- Author(s): McKenzie, Liz
- et al.
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.