As Andy Warhol’s famous depiction of a soup can has demonstrated, the meaning of a work depends on its context. While the Campbell’s label signified one thing to shoppers in supermarkets, it raised new questions when presented as a work of art. Warhol’s work is just one example of what has come to be known as appropriation art, an artistic practice that borrows and repurposes images from the media, popular culture, and other sources. Unsurprisingly, this art form is in frequent tension with copyright law. This comment suggests that in analyzing the“purpose and character” factor of the fair use inquiry, courts turn to context—both the images and items surrounding the copyrighted work as well as the broader social setting in which the work was placed—as additional evidence of what a work of appropriation art may ultimately mean. It examines two cases in which courts considered context to determine whether a work of appropriation art was sufficiently transformative. In light of the Second Circuit’s Cariou v. Prince decision, which dispelled the notion that an author must clearly articulate his or her purpose, this comment also examines the difficulties that arise when courts rely too heavily on authorial statements of meaning. It proposes that courts use context as an additional clue to unlocking the difficult question of meaning.
Elizabeth Winkowski, A Context-Sensitive Inquiry: The Interpretation of Meaning in Cases of Visual Appropriation Art, 12 J. Marshall Rev. Intell. Prop. L. 746 (2013)