Copyrighting appropriation art?

The Jim Crow Museum of Racist Memorabilia has an interesting
discussion
on the copyrightability of segregation signs. 
 
Q: Does anyone own copyrights to
Jim Crow Era segregation signage, such as the famous “Whites Only” or “Colored
Entrance” signs?
 
–Jerome Ward
Hartford, Connecticut
 
The answer begins correctly, then veers into wrong/deep
theoretical water.  It correctly invokes
the short phrases exclusion, then incorrectly invokes the useful article
doctrine in claiming that “the signs would have to have artistic merit beyond
their simple function to be copyrighted,” though the related doctrines of
merger and the idea/expression distinction serve similar functions for
informational artifacts.  Finally, there’s
this statement:
 
Segregation signs can be copyrighted
if they are used, or can be claimed as being used, as art or as artistic
statement beyond their original function. 
In the mid-to-late 1990s, African-American artist Marchel’le Renise
Barber created a line of reproduction Jim Crow Era segregation signs and sold
them in her store “Martha’s Crib”.  She
copyrighted them as the Martha’s Crib Jim Crow Sign Series:  “Barber conscientiously marks her own signs
as reproductions.  Although she
meticulously imitates the lettering, shapes, colors, and borders of the
originals, she stamps her versions ‘Historical Reproduction’ and sells them at
the bargain rate of ten dollars apiece. 
She also stamps them with the name of her store, the copyright symbol,
and current date.  Her signature replaces
that of the companies that commissioned and produced the originals… the date of
the ordinance on the originals is displaced by the date of the copyright… it is
not the original object or language, but the copy that is copyrighted,
reserving to Martha’s Crib the exclusive right to continue to make copies.  The copy, apparently, is an original, a form
of intellectual property, whose originality resides in its conception and
execution as a copy.”
 
So, original Jim Crow Era
segregation signs are not copyrighted in and of themselves, but reproductions
or originals used in an art piece or installation can be copyrighted so long as
they are used in an original construction or context beyond their original
function.
 
While the author cited the Copyright Office for the short
phrases/useful articles points, he cites Brian Norman, Representing
Segregation: Toward an Aesthetics of Living Jim Crow, and Other Forms of Racial
Division SUNY Press 2012 pp 29-30 for this last claim.  But putting a new signature on a public
domain or uncopyrightable work won’t make that work copyrightable.  Amy Adler’s work on the functions of
appropriation art makes clear that these are recognizable art objects and works
of expression, even if they defy interpretation; whatever they are, they aren’t
“the same” as the originals despite their near-identicality.  Still, a work can be a work of art without
being copyrightable.  But I’ll admit, I’ve
had students argue to the contrary, allowing Duchamp to be the author of his
famous Fountain.
 
Also, to the extent the signs are assembled into an
installation that counts as a fixation, the installation itself may well be a
copyrightable compilation.  That just
doesn’t confer any rights in the individual signs themselves.
 
H/T Zach Schrag.

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