Copyright in the Visual Arts

Richard Prince is an artist who has recently generated turmoil within the art world. Some argue that his work is not original given its use of photographic material produced by other artists. Prince used the artists Patrick Cariou photographs in a series and painting and other works.

In March 2011, Manhattan federal court judge Deborah Batts ruled against Richard Prince and the Gagosian Gallery. Patrick Cariou originally filed suit for copyright infringement against Prince, Larry Gagosian, Gagosian Gallery, and Rizzoli books in December 2008 after a number of his photographs were reappropriated without consent in Prince’s “Canal Zone” series. The photographs first appeared in Cariou’s 2000 publication, “Yes, Rasta” a photographic book produced after spending six years documenting Jamaican Rastafarians. Prince had used 41 images from the book for a series of artworks called “Canal Zone,” which were featured in a Gagosian show that opened in December 2007. Prince had never requested permission by Cariou to use his photographs in his artworks which sold for approximately 10 million. Judge Batts rejected the defense put forward by Prince and Gagosian that the artworks were “transformative” — thus constituting fair use — In her ruling, the judge also demanded that all works and materials relating to Prince’s “Canal Zone” be destructed.

Left: Photographs by Patrick Cariou. Right:  Richard Prince’s appropriation of the photographs

As appropriation is one of the most widespread forms of artistic expression this decision will greatly affect the art community.

You can read the whole story in detail at:

http://www.theartnewspaper.com/articles/Patrick+Cariou+wins+copyright+case+against+Richard+Prince+and+Gagosian/23387

In 2009 Shepherd Fairey was sued by Association Press for copyright infringement over the image used in Barack Obamas campaign in which the president is looking upwards in a red, white and blue tone with the caption HOPE. Shepherd Fairey who is a street artist based in Los Angeles designed this image based on an Association Press photograph taken in April 2006 by Mannie Garcia on assignment for the AP at the National Press Club in Washington. Associated Press claimed it owned the copyright and demands compensation from Fairy who has been selling multiple copies of posters and stickers fro thousands of dollars.

In this instance Fairty wanted to argue for fair use; however, as we know fair use is a legal concept that allows exceptions to copyright laws based on how much of the original is used.  In January, 2011, a judge dismissed copyright lawsuits between the artist who created the Barack Obama “HOPE” image and The Associated Press.

To read more: http://www.huffingtonpost.com/2011/01/12/shepard-fairey-ap-suit-dropped_n_807800.html

Jeff Koons wins the copyright lawsuit for “fair use” against Andrea Blanch even after he famously lost the 1988 “String of Puppies” copyright infringement against Art Rogers. Once again the artist is being accused of copying part of a photograph taken by Andrea Blanch titled Silk Sandals by Gucci and published in the August 2000 issue of Allure magazine to illustrate an article on metallic makeup. Koons copied the legs and sandals from the photo and used them in his painting Niagara, 2000, oil on canvas. A work commissioned by Deutsche Bank AG in consultation with the Solomon R. Guggenheim Foundation for the Deutsche Guggenheim, Berlin. Koons lawyer argued that Niagara is an entirely different expression for the sandal in the photograph.

 Niagara (from Easyfun-Ethereal), 2000. Oil on canvas, 10 x 14 feet (304.8 x 426.7 cm). Solomon R. Guggenheim Museum, New York.

The judge Louis L. Stanton of U.S. District Court found that Niagara was a new creation based on the raw material provided by the photograph. In addition, Blanch did not have the copyright over the Gucci sandal therefore the only thing that could be copied was the females leg which could not be deemed original in order to be protected by copyright.

Blanch wanted to have been asked for permission, as is the case with most artists whose work is being used by other artists even of it is transformed.

Art Rogers who is a professional photographer took a black-and white photo of a man and woman sitting on a bench holding 8 puppies called “Puppies”  He used this photograph on various greeting cards and other generic merchandise. Jeff Koons, one of the most important living contemporary artists found this postcard and made a sculpture based on the photograph. The resemblance between the photograph and the sculpture is undeniable. However, there are some subtle differences found as is the case of the exaggerated noses of the puppies and some other added elements such as the flowers behind the woman’s ears. Jeff Koons created his work of art in 1988 and entitled it String of Puppies. This work became a success and Koons sold three editions for a total of $367,000. However, in May 1989 Rogers came acroos Koons sculpture on the front page of the Los Angeles Times’ Sunday calendar section. Once Rogers discovered the existence of these sculptures he went on to sue Jeff Koons and the gallery that represented him during that time, Sonnabend Gallery on the grounds of copyright infringement. Koons did not deny that he copied the photograph; however he claimed that it was fair use by parody. Parody is defined as the humorous form of social commentary and literary criticism in which one work imitates another.

Left: Art Rogers, Puppies, 1985.  Right: Jeff Koons, String of Puppies, 1988. Polychrome on wood.

In October, 1989, when Rogers filed suit against both Koons and his principal gallery, the Sonnabend Gallery. He sought at least $375,000 in compensatory damages, and $2.5 million in punitive damages. Unfortunately Jeff koons had ignored the copyright notice on the postcard that he copied. Additionally, there was proof that he didn’t merely want to appropriate the photograph but to copy it, as per his instructions to the craftsmen who were constructing the works he specifically instructed them to do the work based exactly on the photograph. He also asked his craftsmen to exaggerate certain aspects of the puppies characteristics such as their noses in order to create something found between real life and animation. Koons’ defense was that the Rogers note card represented an accurate depiction for the couple and their puppies. He argued that he merely borrowed information from the work and not any expression. Koons sold the allegedly infringing works for $375,000. Art Rogers every incentive to pursue the issue to trial, it also made Koons a wonderfully inviting target.

On December 10, 1990, Judge Charles Haight of the federal District Court in Manhattan granted summary judgment to the plaintiff. The jusge denied Koons’ claims of fair use. Koons was ordered to turn over all “infringing materials,” including a fourth edition of the sculpture, an artist’s proof.

For a detailed account you could click on the following link where you would find an extensive narrative by James Traub about the Art Rogers vs. Jeff Koons legal case for a series titled, Subjective Reasoning. This is the link for this essay.

 http://observatory.designobserver.com/entry.html?entry=6467

Appropriation is very common in the Visual Arts, especially with the development of technology and the increase in accessibility to digital images. But how are artists to protect themselves and know how to recognize when they are in a vulnerable position to be sued for copyright infringement?

All the great artists used their predecessors work as the basis of their own work. Picasso, paraphrased Manet’s Le Dejeuner Sur L’Herbe, in an extensive series of paintings, drawings and sculptures he executed between 1959 and 1961, Les Dejeuners. A century earlier, Manet, had previously used part of Raphael’s Judgment of Paris (circa 1515) as the basis for his work Le Dejeuner Sur L’Herbe.

Manet, Le Dejeuner Sur L’Herbe, 1962-3

Picasso, Les Dejeuners, 1960

Ever since the Sixties, artists had been incorporating copyrighted or trademarked images into their works. By the late 1980s there was a sizeable group of artists whose work consisted almost entirely of appropriation. There had been disputes before, but they had always been settled out of court. Andy Warhol had settled with a number of photographers after using their work without permission. In the 1970s photographer Arnold Newman had sued Larry Rivers after Rivers used a Newman photograph of the Statue of Liberty in one of his drawings. David Salle had been sued in 1984 after including in a painting a portion of a drawing that was in turn based on the famous photograph of Jack Ruby shooting Lee Harvey Oswald — a daisy chain of appropriation. Salle’s dealer, Leo Castelli, agreed to give the artist $1,000, according to John Koegel, Salle’s lawyer. Salle was sued again in 1989 after using a photograph as the basis for a backdrop he painted for the opera “Birth of A Poet.” Salle settled that one, too, before it went to trial.

Copying is not always a violation of copyright. Some acts of appropriation constitute a “fair use” of the original, a use considered socially valuable enough to permit some encroachment on the copyright holder’s monopoly. Fair use has been determined in the past by judges based on the information they have at hand. Then, in 1976, when congress rewrote the copyright statute, the rule finally gained a proper legal pedigree, though it retained its open-ended character. Section 107 of the Copyright Act stipulated that “fair use of a copyrighted work . . . is not an infringement of copyright.” In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.