Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original?

from the riddle-me-this dept

Fri, May 7th 2010 11:36am — Mike Masnick

Here's a fun one found via Boing Boing. It involves a band, named Elsinore, that is about to put out an album and has run into a rather bizarre copyright issue that highlights some of the insanity in today's copyright law. For the cover of the album, they used a painting done in an art class by a friend of the band named Brittany Pyle. You can see it here:

If this looks somewhat familiar to you, it may be because you've seen one of famed artist Roy Lichtenstein's paintings, called Kiss V. An image of that painting is here:

Now, just before the album was to be released, the estate of Roy Lichtenstein sent Elsinore a note, claiming that their cover infringed on Lichtenstein's copyright, and suggesting the estate was not at all happy about this. Somewhere along the line, the band went back and spoke to Pyle, the artist who did the painting they were using, and she explained that she had not actually copied the Lichtenstein painting at all, but as part of her art course about appropriation art, she was told to do a piece of appropriation artwork, and rather than appropriate Lichtenstein directly, she chose to appropriate from the same source material Lichtenstein had used. Lichtenstein was not particularly forthcoming about his own original sources, but a guy named David Barsalau has apparently spent years scouring old comic books to find the original images which Lichtenstein originally used, and has put them together in a project he's called "Deconstructing Roy Lichtenstein." His research turned up the following as the original source:

If you look closely, it quickly becomes clear that Pyle did, in fact, use the original as her source. There are a few key points in the image that makes this clear. For example, in the original and in Pyle's there's a line directly above the man's eyebrow. That's not in the Lichtenstein version. The woman's hair in the original and in Pyle's is very similar (beyond just the color). In Lichtenstein's it's different (in his, the woman's hair appears to be longer, whereas in the original and in Pyle's you see the ends of her hair curling up). In the original and in Pyle's you see a shadow beneath the point where the index finger and middle finger meet. That does not appear in Lichtenstein's.

Based on all of this, many folks in the comments to both the Boing Boing post and the band's post say that the Lichtenstein estate has no case at all. But... copyright law isn't quite that simple (and there are a few complicating factors). First of all, there's some question concerning the copyright on the original work. No one seems to know exactly where it's from. The only version people point to is the one that Barsalau has highlighted, but he doesn't seem to indicate the source as far as I can tell. And, to make matters worse, everywhere you find Barsalau's work on Deconstructing Roy Lichtenstein he has copyright notices all over everything. No, I'm not kidding. I'm not sure how he can claim copyright on any of that, but for right now that issue is probably secondary, unless somehow he really does own the copyright on the original, and can make a claim against... well... both Pyle and Lichtenstein's estate.

Leaving that aside, though, while common sense would suggest that the estate has absolutely no case, copyright covers the unique expression in an image, and one could potentially argue that Lichtenstein's work did some unique things from the original image... including (potentially) the decision of how to crop the image. Since no one seems to actually show the full source image, we don't know if the comic book image is cropped in the same way, or if that was, potentially, an artistic choice by Lichtenstein. If that's the case, the estate could make the argument that the copyright they hold is on the cropping choice, and while Pyle may have copied the image itself from the original, she copied the crop from Lichtenstein. Would that actually stand up in court? One would hope not, but stranger things have happened.

That said, the whole thing really is fairly ridiculous no matter how you look at it. It's ridiculously obnoxious for an appropriation artist, who relied on infringing on copyrights quite regularly to then turn around and claim that someone else infringed on his copyrights (or, in this case, to have his estate do the same thing). It's particularly obnoxious to basically say it was okay for Lichtenstein to do it to others, but anyone doing it to Lichtenstein is not allowed. And I won't even get into the ridiculousness of Barsalau then declaring copyright on his own efforts of matching Lichtenstein's work to the originals. Either way, it seems pretty silly that the band may now need to go find themselves a lawyer just to use a piece of artwork for their album cover.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: appropriation art, brittany pyle, copyright, david barsalau, elsinore, roy lichtenstein

30 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Bat Boy, 7 May 2010 @ 12:02pm

Ridiculous
The estate of Roy Lichtenstein is NOT right. They both ( Lichtenstein and Pyle ) used only the same source.
[ link to this | view in chronology ]
- Anonymous Coward, 7 May 2010 @ 2:43pm
  
  Re: Ridiculous
  What Lichtenstein's orignality was swiping the image in the first place.
  [ link to this | view in chronology ]
  - CheMonro (profile), 8 May 2010 @ 9:44pm
    
    Re: Re: Ridiculous
    You're right. Lichtenstein's estate should apply for a patent on the method of swiping other people's images.
    [ link to this | view in chronology ]
Anonymous Coward, 7 May 2010 @ 12:04pm

Or maybe the band could have used an artist that makes 100% original work, you know, all none of them.
[ link to this | view in chronology ]
Anonymous Coward, 7 May 2010 @ 12:23pm

17 USC 103(a) is pertinent to any claim that the estate may try to assert.
[ link to this | view in chronology ]
Jupiter (profile), 7 May 2010 @ 12:23pm

This is the most amusing copyright conundrum I've seen since... well, that Hitler thing.

The problem is that law can only deal in absolutes, and there's nothing absolute about art. You can't just easily wrap law around art and call it a day, which ironically makes lawyers happy, because it keeps them employed and they have no reason to fix the problem. It's the artists that suffers.

So where is the real copyright infringement?

Artist A draws a picture and prints it in a comic book. He makes a few bucks from it and is happy.

Artist B hand-copies the picture but blows it up really big and hangs it in a gallery. Infringement? Maybe, but sales of Artist A's comic book are not affected. If anything, sales could increase. The only problem is Artist A can't blow his picture up really big and hang it in a gallery too, so I guess that's infringing, even though Artist A had no intention of ever doing that.

In a twist, Artist B gets rich. Does Artist B owe Artist A part of the money? Presumably Artist B already paid Artist A for the comic book. It never becomes an issue because the world sides with Artist B because Artist B put his work in a gallery, making it more important and making what Artist B was saying different from what Artist A was saying when they made their art, plus Artist B is rich.

Making matters worse - Artist B dies, but since Artist B was rich, Artist B's work goes into the hands of a lawyer who won't be making any new art, but will surely use copyright to profit from the art of dead Artist B. Good luck getting any money now.

Artist C likes does what Artist B did and does the same thing, but instead of hanging it in a gallery (because that's been done), they put it on a CD. Infringement? Maybe, but Artist A can still sell the comic, and the lawyer representing Artist B can still sell the painting. The comic is now worth more and painting is now worth more. In fact, the painting is only valuable now because it was painted by Artist B, not because it was a copy of Artist A or copied by Artist C. Does Artist C owe Artist A and B money now? And how does the band on the CD get sued for Artist C's work?

Along comes Artist D. He makes a copy of Artist A's comic book and sells it. Infringement? Yes, even though Artist A died over thirty years ago and the comic book hasn't been available for sale in fifty years. It's owned by lawyers now, and lawyers can't make art. They can only sue.

When it comes to art, copyright is a mess. We need reform badly. The entire 20th Century has been locked up by lawyers and corporations and it's ruining our culture.
[ link to this | view in chronology ]
- Anonymous Coward, 7 May 2010 @ 12:50pm
  
  Re:
  Which is why more intellectual property lawyers should go to art school.
  [ link to this | view in chronology ]
  - ChurchHatesTucker (profile), 7 May 2010 @ 4:52pm
    
    Re: Re:
    "Which is why more intellectual property lawyers should go to art school."
    
    Instead of law school.
    [ link to this | view in chronology ]
- tracker1 (profile), 7 May 2010 @ 1:02pm
  
  Wow...
  That is probably the single best description of the problem with eternal copyrights I've seen.
  [ link to this | view in chronology ]
- Anonymous Coward, 7 May 2010 @ 2:00pm
  
  Re:
  Wow, that is one of the best convoluted descriptions of copyright on art I think I have every seen. Though I did see another analogy very similar a few months ago and I think I will go draw the same points from the original and post it on a shirt and make some money off the 20 Century lock down of culture by the lawyers and corporations. No worries though, I won't be plagiarizing you, I will just be paraphrasing the earlier analogy...
  [ link to this | view in chronology ]
  - Anonymous Coward, 7 May 2010 @ 2:12pm
    
    Re: Re:
    You won't post it on a shirt because no one would buy such a shirt but good luck on trying to get people to give you money.
    [ link to this | view in chronology ]
    - Anonymous Coward, 8 May 2010 @ 9:40pm
      
      Re: Re: Re:
      That whistling noise you just heard is the sound of someone missing the point...
      [ link to this | view in chronology ]
      - Anonymous Coward, 9 May 2010 @ 10:46am
        
        Re: Re: Re: Re:
        Yeah, that first anonymous coward totally missed the point.
        [ link to this | view in chronology ]
theyownus, 7 May 2010 @ 12:29pm

check the wiki page for Roy...
From wiki "Most of his best-known artworks are relatively close, but not exact, copies of comic book panels, a subject he largely abandoned in 1965. (He would occasionally incorporate comics into his work in different ways in later decades.) These panels were originally drawn by such comics artists as Jack Kirby and DC Comics artists Russ Heath, Tony Abruzzo, Irv Novick, and Jerry Grandenetti, who rarely received any credit. Jack Cowart, executive director of the Lichtenstein Foundation, contests the notion that Lichtenstein was a copyist, saying: "Roy's work was a wonderment of the graphic formulae and the codification of sentiment that had been worked out by others. The panels were changed in scale, color, treatment, and in their implications. There is no exact copy."[14] However, some[15] have been critical of Lichtenstein's use of comic-book imagery, especially insofar as that use has been seen as endorsement a patronising view of comic by the art mainstream[15]; noted comics author Art Spiegelman commented that "Lichtenstein did no more or less for comics than Andy Warhol did for soup."
[ link to this | view in chronology ]
TPBer, 7 May 2010 @ 1:47pm

Rent
I am going to start charging a storage fee for all of the bad music and movies I DL.

Wonder what the stats are for the content that gets thrown away right after discovering it's pure crap.

I for one DL a couple dzn movies/week and keep only 1 or 2. I know I am not the only one.

As far as music goes the keepers are much less due to lousy crap, like that thing G&R put out that was supposed to be all that. It did not last 2 minutes on my hd.
[ link to this | view in chronology ]
Anonymous Coward, 7 May 2010 @ 3:08pm

If that's the case, the estate could make the argument that the copyright they hold is on the cropping choice, and while Pyle may have copied the image itself from the original, she copied the crop from Lichtenstein. Would that actually stand up in court?

Wait, isn't that like the whole legal argument supporting copyrights on photographs? If you take that away then photographs are no longer copyrightable and no US court is about to make such a politically incorrect decision (or if they do it won't last long).

One would hope not, but stranger things have happened.

Stranger? That's the current norm!
[ link to this | view in chronology ]
Anonymous Coward, 7 May 2010 @ 3:08pm

Photographs
If that's the case, the estate could make the argument that the copyright they hold is on the cropping choice, and while Pyle may have copied the image itself from the original, she copied the crop from Lichtenstein. Would that actually stand up in court?

Wait, isn't that like the whole legal argument supporting copyrights on photographs? If you take that away then photographs are no longer copyrightable and no US court is about to make such a politically incorrect decision (or if they do it won't last long).

One would hope not, but stranger things have happened.

Stranger? That's the current norm!
[ link to this | view in chronology ]
Karl (profile), 7 May 2010 @ 3:28pm

VARA
Here's something that makes it all the more sticky.

In the U.S., visual art is the only form of expression that actually has moral rights attached to it. They were granted in the Visual Artists Rights Act of 1990.

So, the band may be able to get around the whole thing if the original artist is still alive and gives his approval.
[ link to this | view in chronology ]
Anonymous Coward, 7 May 2010 @ 3:46pm

So, the band may be able to get around the whole thing if the original artist is still alive and gives his approval.

The band is being sued by "the estate of Roy Lichtenstein". "The estate of" means he's dead, i.e. not "still alive".
[ link to this | view in chronology ]
- Mike Masnick (profile), 7 May 2010 @ 4:08pm
  
  Re:
  The band is being sued by "the estate of Roy Lichtenstein". "The estate of" means he's dead, i.e. not "still alive".
  
  I think Karl meant the original artist of the original comic...
  [ link to this | view in chronology ]
  - Karl (profile), 7 May 2010 @ 5:01pm
    
    Re: Re:
    Exactly, thanks.
    [ link to this | view in chronology ]
    - Anonymous Coward, 7 May 2010 @ 7:29pm
      
      Re: Re: Re:
      Exactly, thanks.
      
      Considering that "the original artist of the original comic" isn't a party to the lawsuit against the band, what difference would obtaining his "approval" make?
      [ link to this | view in chronology ]
  - Anonymous Coward, 7 May 2010 @ 5:02pm
    
    Re: Re:
    I think Karl meant the original artist of the original comic...
    
    Which would be kind of irrelevant as it is *not* the one filing the lawsuit against the band in the first place. I doubt that the Lichtenstein estate would much care what "approval" the other artist gave.
    [ link to this | view in chronology ]
    - Karl (profile), 8 May 2010 @ 1:59pm
      
      Re: Re: Re:
      The original comic artist is the one that holds the "moral rights" to the artwork. Lichtenstein does not have those "moral rights," because he's not alive anymore.
      
      Those rights are totally separate from copyright. I'm not sure which trumps which, but it would be an interesting battle.
      
      Aside from all that, it seems pretty ridiculous that the Lichtenstein estate would have a case, and if they do under the law, then obviously the law should be changed.
      [ link to this | view in chronology ]
James Vaughan, 11 May 2010 @ 7:40am

1. nobody has proven the Lichtenstein is actually a copy of original comic?
2. the students painting is an obvious and know copy of Lichtenstein.
3. the students copy is being used for a commercial money making purpose.
4. intent and usage have a lot of weight in copyright law.
5. if you copy something and them try to use it to make money without offering the original artist any compensation
it is like 'stealing'.
[ link to this | view in chronology ]
- Fred McTaker (profile), 11 May 2010 @ 5:18pm
  
  Re:
  James Vaughan just established he is either an aspiring IP lawyer, whose best interests are against reading this article intelligently, or he can't read at all.
  
  The "same crop" argument made towards the end of the article here doesn't even hold. Look at the dimensions -- the album cover painting is longer, and shows a part of the wrist that doesn't appear in the Lichtenstein. The colors, shading, and even the line styles are all unique to each of the 3 pieces.
  
  Getting lawyers involved in this level of interpretive minutia is the essential mistake of all IP law. Lawyers (including judges) are only good at two things: suing for obvious physical harm, or over written (and signed) contract violations. They often can't even get those right. Everything else is way over their heads.
  [ link to this | view in chronology ]
Steve greenslade, 2 Aug 2011 @ 3:21am

copyright
Isn't the situation with art if you change it 10% ITS YOURS ?
[ link to this | view in chronology ]
sprearson81 (profile), 9 Jun 2012 @ 5:52am

Nah, that's not right dude.
[ link to this | view in chronology ]
stellar, 14 Jun 2015 @ 2:12pm

the point is that no knows the original artist or source of the obscure images litchenstein pulled from when he re created and made small variations on the art he used...the key point being though he took obscure art, made variations on top of images, and through HIS choice of reproduced art, created his OWN iconic art style.

It doesn't matter that the images weren't fully his, his estate has claims on images through the small variations of art, cropping, etc in addition to the repeated style of images he chose to use and re create from thus creating his own unique brand of iconic art, which he DOES have copyright over. To say he simply infringed on other artists is a HUGE generalization of his overall art output.
[ link to this | view in chronology ]
- sladebarker (profile), 28 Sep 2016 @ 9:05am
  
  Re: stellar's not-so-stellar comment
  Everyone knows all the sources of the images, stellar. if you go to davidbarsalou.homestead. com/LICHTENSTEINPROJECT. html (remove spaces), you will see all of Lichtenstein's comic artworks, all of the originals from whom he adapted/appropriated/stole the images, and the name of the original artist.
  [ link to this | view in chronology ]