Another Appropriation Artist Loses Copyright Lawsuit; Are We Nearing The End Of Appropriation Art?

from the too-bad dept

Fri, Jun 10th 2011 7:14am — Mike Masnick

With Shepard Fairey settling his lawsuit with the AP over an appropriated photo of President Obama, and Richard Prince losing his lawsuit for appropriating a photograph and then adding some paint to it, it seems like appropriation artists are running into more and more legal troubles. And now there's another such legal ruling. Thierry Guetta, who was made famous by being the centerpiece of Banksy's Exit from the Gift Shop documentary, has failed to persuade a judge that his artwork does not infringe on the photograph by Glen E. Friedman of the band Run DMC. You can see Friedman's work and then two of Guetta's works works below:

Now, I'll be the first to admit that the second is clearly a direct copy of the first. However, some of the ruling is a bit troubling. Guetta tried at first to claim that the original photo did not deserve copyright, as there were similar photos of the band in the same stance, and Friedman, thus, had not added enough creative value to get any copyright. That line of reasoning seemed like a non-starter from the beginning, and the judge wastes little time dumping it, pointing out (as photographers always do) that the copyright on photographs is for things like the framing, light, shadows, clarity, depth of field, etc., which were artistic decisions by Friedman, in this case. Given the vast amount of case law on such things, this part is no surprise.

Where I'm a little more troubled by the ruling is on the fair use side of things. The judge went through the four factors, and didn't see any support for fair use. I can see how this reasoning came about, but I think the judge isn't being totally fair here. While you can't really see it in the image above, Guetta's work isn't only just an ink copy, but in that second image he glued 1,000 pieces of vinyl records onto wood to help make the image. To me, that seems transformative. It's making a statement, building off of an iconic image. In fact, one of the issues in the Prince case was that Prince wasn't commenting on the original work. Yet, in this case, it seems clear that Guetta is commenting on the original work, and has created something new and different that does not take anything away from the original. Updated: I updated the images and the description a bit. Guetta apparently did numerous works based on the Friedman image. One was with vinyl, but not all... But, still, it seems clear he's trying to make a statement about Friedman's work.

Why is that so bad?

Some, of course, will bemoan the so-called "lack of originality," but that's a silly red herring. Art is not always about originality, and while the image may not be original, how it was done was enticing and interesting, which should be the point of art. In the end, as with the Prince case, I'm left troubled by the idea that a judge gets to decide what is, and what is not, art. For anyone who is creative, that should be horrifying.

Finally, I have trouble with this part of the judge's ruling:

"To permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternative work would eviscerate any protection by the Copyright Act," concludes Judge Pregerson. "Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work."

That's simply not true. Creating a new work that builds on and transforms the old does not eviscerate the Copyright Act at all. It's actually very much in line with the purpose of copyright, which is to encourage the creation of additional works that benefit the public. And the last line is the most troubling: nothing in Guetta's work prevented or even limited Friedman's ability to "justly benefit" from his original work. If anything, it called more attention to it.

Still, with this growing trend, you have to wonder if the popularity of "appropriation art" is about to take a nosedive, as there's just too much liability involved. So, there we go: judges killing another art form. That should trouble anyone who cares about culture.

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Filed Under: appropriation art, copyright

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-, 10 Jun 2011 @ 7:17am

The end? The world is bigger than the US, so no.
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Kaden (profile), 10 Jun 2011 @ 7:31am

Wait... dude jigsawed that image together from pieces of vinyl records?

That's an absolutely fucking brilliant artistic, societal and technical statement.

Anyone who says this is not creative is a moron.
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Ninja (profile), 10 Jun 2011 @ 7:38am

R.I.P. creativity.

Copyright needs reform. Urgently.
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PrometheeFeu (profile), 10 Jun 2011 @ 7:47am

While I fundamentally disagree with this whole mess, (And copyright in general) I can see why transformative use cannot be enough. Otherwise, I could potentially transform the work away from the original, then take the new work and transform it back to the original. Yes, a judge could catch that, but things could get very fuzzy and I tend to like bright lines.
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Anonymous Coward, 10 Jun 2011 @ 7:50am

Scenario:

Artist A makes art.
Artist B takes Artist A's art, modifies it and sells it.
Artist A stops being able to sell his art.

What does this tell us? Did people immediately shift to the art made by artist B? Why? Maybe because it was better somehow?

Maybe artist A was already doing badly, but it wasn't noticeable until someone came by and did a better job than artist A did. Maybe artist B paid attention to what the market wanted and reacted accordingly.

But is this a bad thing? Should we settle with version one (which could be bad), or should we allow others to improve on an original creative work to try to bring it to it's full potential? Why should we artificially limit the Universe of potential artistic creations?
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HothMonster, 10 Jun 2011 @ 7:53am

If only the judge would have made him tell us where the truth begins and ends in Exit from the Gift Shop.
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Anonymous Coward, 10 Jun 2011 @ 8:03am

It is pretty much a dead on copy. Would you consider a photocopy of the original to be transformative? The medium he chose to duplicate the art onto isn't really relevant here, because it is only a duplicate and nothing more.

The judge got this one exactly right. He could have easily used 3 or 4 different images as inspiration and made his own original work. Instead, he just duplicated an existing image. Not very original, even if his technique is different.
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kirillian (profile), 10 Jun 2011 @ 8:24am

Re:
Straw-man argument again. The art in this piece is not the image that you see...the art is in how he expressed it...the image that you see is your connection point. The art is the 1,000 vinyl record pieces that made it. If you don't appreciate it, that's fine. But it's not your place, nor is it the judges place to determine if that is artistic.

The actual argument here is that copyright law and case law sets up a situation where the judge gets to determine if a piece is art or not. Whether or not you believe in impartiality of judges, this now takes the control in determining what art is away from artists and viewers BOTH and places it in the hands of a few judges. For artists, this is a SCARY proposition.

Arguing that this piece is not art is only straw-man - the argument has nothing to do with whether you or I believe that it's art. The argument only concerns whether a single judge should have control over this aspect of culture.
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Anonymous Coward, 10 Jun 2011 @ 8:30am

Friedman does not want to destroy it, or stop it, or remove it from public view. He wants paid. Somebody is making money off his work, so he wants a cut.

"Why is that so bad?"

These suits arise when someone is profiting with the help of appropriation. Artists likely enjoy people using their material, but if something hits, why shouldn't some of the value that they added come back to them?

If Guetta had called Friedman up front and licensed it, there would be no story. In effect, this decision is creating an after-the-fact license. So what?
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MrWilson, 10 Jun 2011 @ 8:30am

Re:
The issue is that the way commercial entities have approached copyrighted works is to intend them for long-term profits. They want to extract value from a work long after its creation. This is artificial.

This photograph is an old photograph. The original photographer has the ability to take more photographs. Realistically, no one should expect to be a one-hit wonder in any artistic medium and get paid for life. That doesn't incentivize creativity, just profiteering.

That the artist took that photograph and created a new work and put considerable effort into it (more so than the photographer) should be seen as a good thing. It seems as if the derivative nature of the second piece is just an aesthetic issue that people have turned into a legal issue. Some people like art that builds upon other art (see practically every Renaissance piece in the National Gallery of Art for centuries of beautiful, but completely unoriginal artwork).
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Kaden (profile), 10 Jun 2011 @ 8:30am

Re:
The medium is *entirely* relevant here. The subjective context of the medium is what makes the statement.
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Anonymous Coward, 10 Jun 2011 @ 8:39am

Re: Re:
The judge isn't deciding if the technique is artistic or not, just on where it came from. It may or may not be art (that is up to you) but it is a duplication or replication of an existing work.

It really isn't any different from masking off the background and making a photocopy, is it?

From the look of it, I wouldn't be shocked if the artist worked by putting the original image under the work, and filled in the spaces. I don't see that as being original, rather just a duplication of an existing work.

It is very obviously a knock off or copy, something that wouldn't exist without the original image that it copies from.
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Anonymous Coward, 10 Jun 2011 @ 8:51am

Re: Re: Re:
And this could have been avoided if the artist just asked permission and paid the appropriate licensing fee . . .

Oh! Appropriate! Get it!
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Kaden (profile), 10 Jun 2011 @ 9:03am

Re: Re: Re:
A copy would be another photograph, you pinhead. A knock-off would be a *cheap* photograph.

It's a shame that being willfully obtuse regarding the significance of the artists medium and subject matter is the best you can do.

Try to be more creative wouldja?
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Silent Bob, 10 Jun 2011 @ 9:07am

is this much different than photomosaics?
In a photomosaic, many tiny images are tiled together to emulate the intensity and color of small patches of a larger image, essentially forming a copy of the large image that you can see if you stand far enough away. That is unarguably a transformative art form. It seems to me that DMC-rendered-in-vinyl is a similar processm and even more hard to produce, since someone has to physically cut up and assemble the pieces.
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ChrisB (profile), 10 Jun 2011 @ 9:08am

Re:
> So what?

The market decides winners and losers, not judges. Lord help us if art is judged in a courtroom. Just another socialist situation where the state interferes with the free market. As long as there is no confusion about who did what, then the market will decide who the better artist is. Boring B&W picture of Run DMC or crushed-record impressionism? Let the consumer choose and quit subsidizing bad artists.
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Brad, 10 Jun 2011 @ 9:08am

Copyrights have become a government entitlement program
Copyright laws have become an entitlement program for artists. A retirement program for artists and a welfare program for their children.
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Prisoner 201, 10 Jun 2011 @ 9:16am

Re:
How can artists be expected to make a living if they have to produce products that people want?! Sheesh...
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ltlw0lf (profile), 10 Jun 2011 @ 9:22am

Re:
Artist A makes art.
Artist B takes Artist A's art, modifies it and sells it.
Artist A stops being able to sell his art.

Not saying you are making this statement...but why do copyright maximalists always deal in absolutes and always see this as a xor statement... In their eyes, if A = B, and A = 1, B can never equal 1...which makes no sense.

The world never works this way, not ever, never! Artist A makes an art, and sells it. Artist B takes the art, modifies it and sells it. Customers will find one or the other, enjoy it, and purchase it...thus both Artist A and Artist B get money for their work. And for some of us...we listen to the "artists like ..." suggestions, and buy both Artist A *AND* Artist B's work.

Hell, I see this all the time. I didn't know the band "Dream Theater" existed, until I started looking for more "Spock X" albums and the website I was on suggested that if I like "Spock X", I might like "Dream Theater" too. And surprise, surprise...I now own every Dream Theater album. Now neither has copied the other's work directly, but they both have elements that they share. In the copyright maximalist's world, either Spock X can exist, or Dream Theater, and so long as both exist, nobody can make money.

But is this a bad thing? Should we settle with version one (which could be bad), or should we allow others to improve on an original creative work to try to bring it to it's full potential? Why should we artificially limit the Universe of potential artistic creations?

Exactly...

Only the dark side deals in absolutes.

In the real world, both parties make money, and in some cases, if both works are commercially viable, both artists will be justly rewarded for their work. But we aren't talking about limiting the pool of artistic creations to make sure everyone gets their share when we are talking about the true intent of the industry...but to limit the artists so that they can be controlled and maximize the profits of the industry to the detriment of culture and reason.
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Chargone (profile), 10 Jun 2011 @ 9:51am

Re:
see, i get that this is clever, and would take a lot of doing. i can see the merit in it as a work of skill and so on...

but this whole 'making a statement' thing has always baffled me. there's no words, it doesn't say anything, it doesn't represent anything in a way concrete enough that someone else could understand without further explaination from the artist about what, exactly, they were going for...

what, exactly, is the 'statement'. are you 'making a statement' if no one knows what the hell you just said?

mind you, there's a lot of supposedly great art that leaves me baffled as to what it's merits actually Are beyond being vaguely decorative if you put it in the right spot. (which in no way explains how it's better or worse than any other similar thing)

this really has nothing to do with copyright or lawsuits and everything to do with the whole mentality behind art (as dissociated from craft or skill) baffling me.
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Chargone (profile), 10 Jun 2011 @ 9:53am

Re:
humm. you make an interesting, and somewhat valid, if downright weird, point there.

lotta effort for not much to do that though.
also, i think you'd probably have to have person A make the thing, person B transform person A's work, and person C to transform person B's work resulting in a clone of person A's work before that plan has any chance to... err.. work.
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Guy Thomas (profile), 10 Jun 2011 @ 9:54am

Not to give anyone any silly ideas...
But why has Hoover not gone after Jeff Koons? http://www.christies.com/LotFinder/lot_details.aspx?intObjectID=5074053

In what way is Koons work transformative over the original industrial designs of Hoover?
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Kaden (profile), 10 Jun 2011 @ 9:57am

Re: Re:
So the whole 'sampling/vinyl/Run DMC' context thing escapes you?

Words fail me.
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art guerrilla, 10 Jun 2011 @ 9:59am

Re: Re:
shorter chargone:
i don't understand the concept of art, but i know what i likey ! ! !
chirp chirp chirp
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A Monkey with Atitude, 10 Jun 2011 @ 9:59am

Re: Re:
I believe the statement, by making it out of old vinyl records, was that the "music/records" are the foundation that created the image that was Run DMC...

My thoughts 1) is a photo of a band, the other is art work used to show how the music made the image... the photo is just snapshot/capture of a moment in time, some are beautiful, others are gruesome (Jefferson Memorial), but photo's (IMO) do not make a statement, some one taking some (paint, records, concrete, wood, iron, stone) make the piece a specific way as part of the expresion they are trying make over all (be it babies or rappers).
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Anonymous Coward, 10 Jun 2011 @ 10:21am

Re: Re:
:D Somehow your statement speaks directly to the utter absurdity of the judge's quoted final words, but I can't properly elucidate why.

Maybe you just made some art!?

(being totally serious, btw)
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Anonymous Coward, 10 Jun 2011 @ 10:51am

Re: Re: Re: Re:
The artist's medium is wonderful, whatever. It isn't very relevant, because without the original image that he copied directly from, there would be nothing that you consider "art", just a bunch of broken record pieces spewed randomly on the page.

I would go so far as to say it appears that he put the original image down and laid the pieces over it.

Whatever "art" is added by the medium doesn't get past the fact that it is a blatant copy, a derivative work and nothing more. The court didn't fall for it.
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Anonymous Coward, 10 Jun 2011 @ 10:57am

Re: Re: Re: Re: Re:
Court-approved art is the best kind of art.
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Mike Masnick (profile), 10 Jun 2011 @ 11:19am

Updated
Hey everyone, I updated the post a bit, because Guetta did a few different takes on the Friedman image, with the main one being vinyl, but not all... I still don't think that changes the analysis.
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taoareyou (profile), 10 Jun 2011 @ 11:32am

Not a Photo
If the copyright on the photo is based on depth of field, framing, lighting, and all that, don't those apply to a photograph? If he put together his own version of the photograph, even if it is obviously based on that photograph, it is still his own manual interpretation. There are many details in the photograph which are and cannot be reproduced exactly in the method chosen.
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Kaden (profile), 10 Jun 2011 @ 11:43am

Re: Re: Re: Re: Re:
Again: the whole vinyl/sampling/Run DMC context escapes you?

I fear for your offspring.
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Anonymous Coward, 10 Jun 2011 @ 11:50am

This is very bad, though this is in America i dont want judges deciding on whats art or not. This will spread to the world if it catches on. Also Art is not about enriching lawers. >_
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Marcus Carab (profile), 10 Jun 2011 @ 11:59am

Re: Re: Re: Re: Re:
The artist's medium is wonderful, whatever. It isn't very relevant, because without the original image that he copied directly from, there would be nothing that you consider "art", just a bunch of broken record pieces spewed randomly on the page.

Okay, well then why does the photographer get a copyright? His medium is wonderful, whatever. It isn't very relevant, because without the original people he took a photo of, there would be nothing that you consider "art", just a sterile snapshot of a random brick wall.
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Anonymous Coward, 10 Jun 2011 @ 12:06pm

Re: Re: Re: Re: Re: Re:
A sterile snapshot of a random brick wall built by a bricklayer is art. The brick wall? Not art. A photograph of a brick wall? Art. A painting of a photograph of a brick wall? Not art.
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Huph, 10 Jun 2011 @ 12:17pm

Re: Re: Re:
There's a lapse in logic here. If simply recreating the original photo in vinyl is OK, then why shouldn't it be OK to recreate it digitally? Or with India Ink? Or pencils? What about a photo of the photo? What if it was a movie and I transferred it from film to tape? Where does it end?

I personally enjoy the statement made by using vinyl to recreate an image of Run DMC. It's a little pedestrian and "obvious" but, hey, whatever you like. However, I'm not going to say my taste should dictate what's legal. This is clearly a derivative work which wouldn't have existed without the original and is therefore subject to the laws that govern derivative works.

And to be clear, I don't see any statement from the judge saying this isn't art. Simply that it's infringent and not protected by Fair Use. Where everybody here gets the idea that something can't be art AND be infringent is beyond me. The terms are not mutually exclusive.

Artists who make derivative works know exactly what they're getting into when they work in derivative forms. Getting sued is sometimes our prerogative. It's excellent publicity.
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Marcus Carab (profile), 10 Jun 2011 @ 12:21pm

Re: Re: Re: Re: Re: Re: Re:
Hehe. Thanks - it all seems so clear now!

(for one terrifying moment - after reading this comment but before connecting it to your other excellent one above - I thought you were serious)
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MrWilson, 10 Jun 2011 @ 12:45pm

Re: Re: Re: Re: Re:
The medium is highly relevant. You could (if you had the artistic ability) paint an exact duplicate of the Mona Lisa with excrement and call it, "The Mona Lisa is Shit." That would be a new work and the medium would be essential to the artistic expression.

Of course it wouldn't be a copyright issue since the Mona Lisa isn't under copyright, but it still serves to point out that it could hold up that the artistic statement can be made in the choice of the medium itself rather than just the image being presented.

Your opinion that the medium is irrelevant is irrelevant because that's just an artistic judgement. Just because you fail to see the artistic expression the choice of medium doesn't mean it isn't art.
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ltlw0lf (profile), 10 Jun 2011 @ 12:58pm

Re: Re: Re: Re: Re: Re: Re:
A sterile snapshot of a random brick wall built by a bricklayer is art. The brick wall? Not art. A photograph of a brick wall? Art. A painting of a photograph of a brick wall? Not art.

Can we just say that everything is made by the creator (flying spaghetti monster, may his noodley appendages protect you and keep you safe,) and thus, all art is derivative of his original work, and thus not subject to copyright and call it a day? That would make things a hell of a lot easier for everyone.
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Anonymous Coward, 10 Jun 2011 @ 1:33pm

Re: Re: Re: Re: Re: Re:
I have to disagree. What you guys appear to be doing is confusing medium with the resulting product. You sort of have to separate them out to see why the court ruled like it did.

Quite simply, without the original image, there would be no resulting product here. The work appears to be an overlay of the original photograph, just put it under a clear sheet, and start building the "art" on top of it.

What is important here as well is that if the "art" wasn't a precise replica of the original image, right down to the shading and creases in the clothing, it might have actually come closer to art. But it is clear that it is exercise in technical ability, not in original creativity. That is why the court ruled as it did.
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Rose M. Welch (profile), 10 Jun 2011 @ 2:25pm

Re: Re:
It's just a phrase. A less confusing one would be 'an interesting juxtaposition', which is usually closer to what they meant.
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MrWilson, 10 Jun 2011 @ 2:54pm

Re: Re: Re: Re: Re: Re: Re:
You appear to be confusing the fact that medium is an essential part of the artwork. You've apparently never heard the concept of, "the medium is the message."

"You sort of have to separate them out to see why the court ruled like it did."

I agree, you do have the separate them if you want to see it the court's way. The problem is that the course was wrong to separate them. They're taking an artistic decision out of the consideration as to whether or not it is art or transformative.

It is an artistic decision to choose a particular medium. If you are using a different medium from the original, it can't be "a precise replica of the original image."

Your assertion that the work is an overlay of the original photograph and therefore doesn't qualify as original or creative means that photography, which just captures what you're looking at through the lens, with the supposedly uncreative choice of medium, lighting, focus, timing, framing, etc doesn't qualify as a creative or original work either.

What about portrait painting? "It looks like the artist just had a model sit there and they painted what they looked like! How unoriginal!"
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Anonymous Coward, 10 Jun 2011 @ 3:02pm

Re: Re: Re: Re: Re: Re: Re:
They should make tracing a crime.
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Marcus Carab (profile), 10 Jun 2011 @ 3:58pm

Re: Re: Re: Re: Re: Re: Re:
Quite simply, without the original image, there would be no resulting product here. The work appears to be an overlay of the original photograph, just put it under a clear sheet, and start building the "art" on top of it.

So I point you to my comment above. If what you say is true, why does the photographer get a copyright? Without the people he photographed, there would be no resulting product here. The work appears to be nothing more than an exact copy of the original reality.

Either both the photograph and the painting are art, or neither one is. I don't see how you can have it both ways.
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Robert Shaver, 10 Jun 2011 @ 4:02pm

Banky's doc title typo
FYI: Banksy's doc title is Exit Through the Gift Shop not Exit from the Gift Shop.
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Marcus Carab (profile), 10 Jun 2011 @ 4:08pm

Re: Re: Re: Re:
I love your spirit of going for it anyway, consequences be damned - and I see from your website you are a creator of sample-based music, a medium I am a huge supporter of. But I still don't quite understand why you are so complacent about this - in fact, samples make an excellent example, because it wasn't very long ago that you were allowed to use samples under fair use. That right was whittled away, first to "short samples only" and then to "NO SAMPLING, ASSHOLES!" within a little over a decade. Sample-based musicians face all sorts of legal obstacles, especially if they want to do almost anything that falls within the "traditional" ecosystem (record deals, getting on TV, etc.)

Now, don't get me wrong, I really think it's awesome that you don't care about that stuff and plan on making the music you want to make anyway (in fact I think that's by far the most important thing, so more power to you) but I also don't think it's right that artists' hands are tied in this way. And given how fast sample-based music went from kosher to kiboshed, it scares me to see the same thing happening to visual art. It doesn't have to be this way!
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1karbuni2 (profile), 10 Jun 2011 @ 4:11pm

Artist 1, plagiarist 0.
Deal with it!
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Not Stupid, 10 Jun 2011 @ 4:20pm

No.
Neither Fairey nor MBW are artists - they're illustrators. They don't have a statement. Rather, they have an act of disobedience attached to ironic imagery. That they make a buck off of it is only possible because those that purchase their work have no sense of meaning unto themselves. That there's an entire generation that thinks there's depth in this is inane. Your diet soda attachment to irony as meaning is no more meaningful than the iconography you think you're mocking.

Banksy is different than the other two. Can you spot the difference? That you can't is telling.
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Any Mouse (profile), 10 Jun 2011 @ 4:30pm

Re: Re: Re: Re: Re: Re: Re:
'Art' is a subject thing. What you consider art (A photo of a brick wall?) I might consider to be a waste of resources and time. It isn't for you to tell me what art is, and vice versa.
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Rob Sheridan (profile), 10 Jun 2011 @ 4:47pm

The funny thing is that celebrity photography is in its own way a form of appropriation art. The exact same photograph taken of three unknown people would likely have never been deemed artistically, culturally, or financially valuable. But this photograph is actually building off of the artistic achievements of its subject matter - it simply wouldn't be an interesting photo if the people in it weren't artists who had already made a name for themselves in popular culture through their own art. And much of their art relied on the art of others. And so on. Everything is a remix. In that sense, I find it really sad that the photographer would go after someone who had essentially done the same thing, just one step further down the line. And as a disclaimer: I don't even like Mr. Brainwash's art. I think it sucks. But that's not for me to decide. The market (in this case, the art world) has decided that it has value (even though they were hilariously tricked into it by Banksy). And Brainwash's piece, much like Friedman's photo, would have significantly less value if it weren't for Run DMC.
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Not Stupid, 10 Jun 2011 @ 5:16pm

Re:
Then why sell photographs, Rob? You know better than this because whether its coming from your boss or from an endpoint consumer, the photographer has to have some ownership of the image or there is no career in photography. There's no money. I'm no Randian corporatist, but who takes the fucking photos if no one gets paid? The ticketbuyer in the audience with his iPhone? I'm not exactly expecting the next London Calling cover pop up on Flickr.

Does this mean every hack studio photographer should sue when their client puts a senior photo on Facebook? No, there's no money lost in that. That photographer made their buck on it. But using someone else's image to make a ridiculous amount of money based on bullshit? At the very least, licensing fees should be paid out. If these "artists" had any sense of responsibility or integrity, they would have cut checks before the original photographers ever saw the piece.
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Not Stupid, 10 Jun 2011 @ 5:21pm

Re: Re:
And by the way, if they wanted an image of RUN-DMC, why not use reference material and draw a new image that didn't previously exist? Oh...? These people don't have the kinds of skills one acquires through art training? I see...
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Marcus Carab (profile), 10 Jun 2011 @ 5:24pm

Re: Re:
Why? The photographer takes a photo - he gets a copyright on it, and now for the rest of his life anyone who wants to use that photo has to pay him for it. If the photo is a hit, he doesn't go back and pay his model extra wages, or send a cheque to the celebrity he was following.

Now, an artist changes the photo into something new - a piece of artwork (and I agree, not a particularly good one - but that's not for me or you to decide). This artwork does not eliminate the market for the photo - very few people who are seeking a photograph of Run DMC would say "oh but a giant board with broken records stuck to it will do just as well". Meanwhile, the people who do want the broken records wouldn't be satisfied with just a photo instead. They are two almost entirely separate markets, and just because the artist was a success, I don't see why he should have to pay the photographer - any more than the photographer has to pay his subject.
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Marcus Carab (profile), 10 Jun 2011 @ 5:26pm

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Thankfully, I'm fairly sure he was being sarcastic. My initial reaction was the same as yours, though :)
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Rob Sheridan (profile), 10 Jun 2011 @ 5:31pm

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"Why sell photographs?" You're missing the point entirely. The point here is that the photograph is one piece of art, and an artist's interpretation of that photograph is a separate piece of art which has built upon and transformed the original piece. The photographer's ability to sell his photograph has not been harmed by this artistic interpretation. If someone was selling photocopies of the original photo, THAT would be an issue.
I happen to AGREE with you that Brainwash's "art" is uninspired and unoriginal. But that's beside the point. What he's doing here is "covering" or "remixing" the original photo, in a way. You don't have to like it, but arguing that it's against the law sets a dangerous precedent for artists. What's next? If I paint a picture of a building, am I infringing upon the rights of the architect?
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White Corn, 10 Jun 2011 @ 5:53pm

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Rob Sheridan's comment is on the money. Anyone else notice that the issue of appropriation usually gets two different reactions that split between practicing contemporary fine artists who are well versed in art history and critical theory, and the self taught or commercial artists? Commercial artists like Rob Sheridan are exceptions to the second group, and those exceptions are always artists whose work is unique and conceptually strong. They understand that art is about ideas and concepts, not about "product". "Product" is for consumers. Rob isn't churning out product, he's churning out well crafted, well conceived work. The people who are threatened by anyone appropriating their stuff view their work as product. An artist like Rob knows that what he produces is not a finite product but one piece of work in the larger process of being an artist. Artists who think like Rob are way more afraid of courts deciding what artists can and can not incorporate as imagery into their work than they are concerned with someone making bad art by tracing photos- even their photos.
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Not Stupid, 10 Jun 2011 @ 6:33pm

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Actually, I'm a fine artist and I disagree with Rob. My work, while for sale, isn't a commercial interest. It is borne of my hard-won conceptual wrangling and sketching. Its personal and it means something to me. I work digitally and I work with photographs. All of my photographs are mine, taken in my own studio. To let someone co-opt it without going through the hard work I did would be to say it never mattered how hard I worked on it because it would been easier to skip the hard work and borrow an original. If someone borrowed my imagery to make derivative work, I would sue the holy living fuck out of them. Maybe I'm excessively sensitive to this because my stake in the question is intellectual/emotional and not fiscal. Maybe all's fair in selling work.

The hang-up for the whole debate here is that there's celebrity being traded on. To me, that is irrelevant. If I work with a model who later becomes famous, if I am selling my work based on that fame, then I don't have a lot of integrity to stand on. But if my work just happens to feature someone who acquired fame later, suddenly my work is public domain because you can recognize them in the original work. This is a dangerous line to tread. I think you could point to the Fairey case and say the original AP photo was taken by a news reporter who was trading on Obama's celebrity, but until 1986, Run-DMC didn't have a lot of fame to trade on.

As for derivative works, it makes sense to release stems and let people make remixes if they're promotional tools. It makes sense to let someone use samples if they weave them together like Jack Dangers uses them. But to slap the chorus of one song into another track and make a million dollars off of it? It's not greed to object to that.

If someone were to take the Nine Inch Nails stems and make a million dollars off of a recognizable song via remixes, if that money actually got made, you don't think Reznor would sue the shit out of them? Really?
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Anonymous Coward, 10 Jun 2011 @ 6:39pm

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Paintings of buildings have been made for a long time Rob. You ever heard of this lawsuit happening? Slippery slope arguments are weak sauce.
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Not Stupid, 10 Jun 2011 @ 6:57pm

The paintings post was mine, by the way.

Look, I love Creative Commons. I think it's good to say, "No commercial interests? Feel free to use this for mutual creative endeavors." But to do so without the endorsement of the original artist (quality or intent, aside), is wrong. And I think if your face can stand to get a check cut in your name, your face can stand to cut a check in response. That's just integrity it should count for something.
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Rob Sheridan (profile), 10 Jun 2011 @ 7:17pm

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When the reaction to stuff like this becomes lawsuits and more lawsuits, you just start to put artistic expression into a smaller and smaller box of what's allowed and what isn't. I'm not arguing this from a legal perspective (although I think the fair use argument here is pretty strong), just from the perspective of someone who would rather keep art as open as possible, even if it means some people get away with some questionable appropriations here and there.

Regarding remix stems, that's not really a great example in this case because a song using a stems of someone else's music is using *actual* pieces of that person's work. That's a whole separate discussion. In this case it's an *interpretation* of the work, done in a different medium that changes the experience and the context. If Brainwash made a collage that included the actual photo (or part of it), that would be more akin to using a part of someone else's song in a new song, and this would be a different conversation.

Although, with regards to sampling music, the ability to sue someone for doing that is a relatively recent development - a lot of iconic music from the 80's wouldn't have been legally possible now because it was built using samples of other peoples' work.

All of this is a fine line, of course, and every artist will surely have a different emotional reaction to it. My personal feeling with regards to this case is that even if the photographer feels like Brainwash's art is too close to the source material, he should recognize that there are parallels to this type of thing everywhere in art, ESPECIALLY photography. Maybe he should be thrilled that he's built a successful career off of his photography, has made money off of photographs like this one that he took decades ago, and that his photo is iconic enough that another artist would be able to make a successful work based on it. He should also recognize that the money being made by Brainwash off of this piece of art is money that the photographer NEVER WOULD HAVE MADE. I don't think there's any argument that the photographer is losing money here, or that this is harming his business in any way. I guess his argument then, is, "I made this piece of art, why should someone else be able to take what I did, adapt it, and make money?" But in some way or another, that's what all art is.

One other question for those who think Brainwash should get sued for this: Should Andy Warhol get sued for appropriating the iconic design of Campbell's soup labels? Yes, what Warhol did was FAR more unique than what Brainwash is doing (and Brainwash appropriates the hell out of Warhol), but if you remove the quality or significance of the art from the equation, aren't they doing more or less the exact same thing?
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Marcus Carab (profile), 10 Jun 2011 @ 7:17pm

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Only some CC licenses are non-commercial. The good ones, the ones that the smart artists choose, allow commercial use.
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Spaceman Spiff (profile), 10 Jun 2011 @ 7:21pm

Where would Andy Warhol be today?
Giving all this copyright / image derivation cruft going on today, I wonder if Warhol would be able to practice his art today? It's time, IMHO, that this sort of cruft (claiming infringement against derivative artists) started getting shut down...
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Anonymous Coward, 10 Jun 2011 @ 7:40pm

I think we decidedly disagree about whether or not this is a new song. I don't, you do. Probably no real compromise to be found on that central disagreement.

That said, I don't disagree with much of what you're saying there, Rob. But I would counter that where the question of whether or not that money NEVER WOULD HAVE been made, my argument is that the question is whether or not it SHOULD HAVE BEEN MADE. What recourse does the original photographer have except monetary? Just because he came round looking for a payout doesn't mean it was motivated by greed. Maybe he just didn't like that there was another hack making money off of the hard work of others. Maybe the case came with the endorsement of the surviving members.

Also, I don't think I'd agree that all art is founded on taking an idea, adapting and making money. There's referencing and there's cultural, visual vernacular but biting a rhyme is biting a rhyme, plain and simple. You can say that the idea is the marriage of the new material with the icon, but then if that's true then the concept should be able to stand with another image. The owner of the original image says, "no." He should have been consulted before the piece was even made. It assumes he is complicit in the work's creation.

As for Warhol, I'm sure you've seen the letter sent to him by Campbell's? They were happy to have the publicity. Do I think he should have been sued had they been angry? Maybe. The pieces that he did later with corporate marks were far more damnable, but there was also a clear editorial voice attached to them (ala Banksy). Basically there was artistic merit to them and their fair use in that case would have been more substantive because Warhol's use of them was to critical of them in particular. Your cereal mascots fall into that category.

That said, do you mean to tell me that it would be appropriate for me to take characters from your pieces, make vinyl figures of them and sell them at HotTopic for $20 a pop? Under your reasoning this is okay because I wasn't using your illustration as an illustration but instead as a new thing that your illustration isn't.
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Not Stupid, 10 Jun 2011 @ 7:42pm

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Again, that tl;dr tirade was mine.
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Lawrence D'Oliveiro, 10 Jun 2011 @ 8:55pm

T S Eliot Quote
�Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.�

Found here.
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Anonymous Coward, 10 Jun 2011 @ 8:57pm

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It is so simple, I cannot imagine that you cannot see the difference.

The photographer starts with nothing. There is no existing work to copy from. There is no "art" that they can replicate and call their own. They have tools, but they don't have an outline traced or a setup created. The photographer captures an image, a moment in time, something that is both enduring and fleeting. The original image in question, example, represented a moment in time that will never recur, you will never have these three people together in the same place, in the same light, in the same clothes, at the same age every again (in part because one of them is dead).

If I handed you all the same tools, pointed you to the same location, even gave you the same outfits that these guys wore on that day, you could still not shoot a duplicate image.

The photographer started with nothing. He didn't have to duplicate anyone to produce his art.

Can you say the same about the derivative artist? I don't think so.
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Marcus Carab (profile), 10 Jun 2011 @ 9:18pm

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Yes. I can say every single one of those things about the appropriation artist. And you are really being quite silly at this point - you are arbitrarily drawing a line where YOU think creativity begins.

This was a photo of Run DMC, a hot topic in the media, a group of rising stars. They did a lot of work developing a style, and a way of carrying and presenting themselves. They picked those clothes. They struck that stance. They presented themselves as cultural icons that the world would latch on to. Yes, the photographer made certain choices in capturing that image of them - he chose his subject from a whole world of possible subjects, he chose a medium to present it in, then he made a series of aesthetic decisions within that medium. That is exactly what the appropriation artist did. The choice to use this photo is no less or more creative than the photographer's choice to choose this subject. The choice to work in vinyl on wood, and all the choices made therein while constructing the piece, are no more or less creative than the photographer's choice of location and lighting and framing.

I honestly do not see how you can argue that one is objectively more creative than the other. While I don't particularly like this art myself, we are talking about the law, and the law has to deal with the objective elements of choice that make a work creative. From that perspective, there is no difference at all.
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Marcus Carab (profile), 10 Jun 2011 @ 9:21pm

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Basically, you are saying photographers don't replicate. I am saying even a two year old could look at that statement and see that it's bullshit. That's what photography is. Photography is appropriation art. The source material is reality (and often other art, like architecture and fashion)
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dadais, 10 Jun 2011 @ 10:07pm

Brainwash guy's version is so close to the original that it doesnt add anything - even if it was painted with blood and cum.

That piece of "art" is merely entertaiment and a copy of a photograph. Who gives a fuck if this kind of shitty art-form dies, you guys still have the 100 channels on your tv right?
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White Corn, 10 Jun 2011 @ 10:42pm

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It isn't really all that close to the original at all, except in how the light and dark areas are defined in relationship and size to one another. The medium is different, the size is different, the range of modulations are different.

Who gives a fuck if this kind of shitty art-form dies, you guys still have the 100 channels on your tv right?

100 channels on a tv or the brain dead equivalent will be all that is left of progressive culture if the rules for what imagery is and is not allowed to be used in "art", shitty art or not, keep getting more and more restrictive. Say goodbye to a whole lot of art that used to be able to directly quote or reference anything in popular culture. Criticism or parody of corporate symbols? Subversion of any sort? Nope, sorry. The almighty dollar rules, and soon if you want to put McDonald's yellow arches in your painting you'll have to make sure those arches are sufficiently heroic, try to clear it with headquarters, and pay $$$ to the corporation for the honor of depicting them.
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Marcus Carab (profile), 10 Jun 2011 @ 10:44pm

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I can give you a very clear reason why: I love sample-based music, and copyright maximalists tend to decry it as shit and not real music. While I'm no huge fan of what I see here, I would be a pretty big hypocrite if I didn't stick up for it, if only in principle.

Do you honestly not understand the concept of supporting something without always liking it? Because that's central to just about every type of freedom there is...
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Anonymous Coward, 11 Jun 2011 @ 5:39am

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Marcus, I would have to say you failed because the difference is glaring, and yet you intentionally seem to want to miss it.

It isn't a question of just the choices the photographer made, it is that they started with nothing except what they could see with their own eyes. They didn't use someone else's work. They didn't use a pre-made setup. They didn't let someone else create the image. They created it.

The appropriation "artist", aka the guy copying someone else's work, didn't do any of that. He let the photographer be his eyes. He let the photographer create the original image, and then just rode it.

In simple terms, without the photograph there would be no copy image. Without the appropriation artist, there would still be a photograph. I can tell really simply which one is the original artist and which one is just a medium manipulator.
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Anonymous Coward, 11 Jun 2011 @ 5:48am

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That sort of shows why you cannot understand another point of view. Let's frame it in terms of sample music.

Would you consider it a good sample music song if an "artist" took someone else's song, and turned down the treble a bit? Maybe added "yeah" at the end of every chorus? Probably not, you would think of them as pretty lame, actually.

Would you consider someone taking a song, playing it slightly faster as original? Or would you think of it as pretty lame? Would it be more artistic if he did all the work manually, shifting the bits by hand with a calculator?

What was done with the photograph here. There isn't much new, even though technically he did plenty of work, he didn't really do all that much. It's technically wonderful, it's impressive that someone took the time to use that method, similar to watching someone manually calculate bit shifting to speed up a song. The end product, however, isn't that original. Technically I am impressed. The end result isn't all that impressive,and doesn't add much.

Sample based music is just lazy.
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1karbuni2 (profile), 11 Jun 2011 @ 6:05am

Once sampled based music ended and rap began writing their own sogs, the gendre took off. I myself though rap was dead, but rap really became an exceptional art form. The end of appropiation ignited that
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Jeni (profile), 11 Jun 2011 @ 6:42am

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"Artists likely enjoy people using their material, but if something hits, why shouldn't some of the value that they added come back to them?"

It more than likely would. With viral - totally free - marketing.

The only thing I can see being important here is that the author of work #2 make mention of the source of his inspiration, work #1. Which would lead to the free publicity for author of work #1.
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Anonymous Coward, 11 Jun 2011 @ 7:14am

Reminds me of the Amy Grant/"Dr. Strange" controversy.
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Anonymous Coward, 11 Jun 2011 @ 8:03am

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"...they started with nothing except what they could see with their own eyes."

Isn't that exactly what Guetta did?

I find it rather awful that you would deny another artist their own hand.
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Anonymous Coward, 11 Jun 2011 @ 8:07am

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Plagarism would entail Guetta claiming he took Friedman's photo. As far as I can tell, he did not.
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White Corn, 11 Jun 2011 @ 8:16am

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When you don't know much of anything about rap, its history, and its evolution, it must be easy to just make up statements as completely idiotic as this. The end of appropriation had nothing to do with rap "taking off" if by "taking off" you mean gaining broad mainstream radio play.
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Anonymous Coward, 11 Jun 2011 @ 8:22am

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What's lazy is dismissing an entire genre or niche because you prefer to focus on the trees instead of the forest.
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Marcus Carab (profile), 11 Jun 2011 @ 9:37am

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You don't seem to understand that the appropriation artist started with his own two eyes too. Every human being does. The photographer decided to pick up a camera and go out in search of bits of reality to capture. The appropriation artist decided to pick up unusual materials and go in search of pieces of art to re-imagine.

I think it is clear that we aren't going to agree on this, because we clearly have fundamentally different beliefs about art. You call one a medium manipulator, and I say that's exactly what the photographer is too: he manipulated objects, people and light to make images, the appropriator manipulated found imagery, wood and vinyl records.

You can draw the line between them if you insist, but I feel you are making a fairly arbitrary subjective judgement.
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Marcus Carab (profile), 11 Jun 2011 @ 9:54am

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Would you consider it a good sample music song if an "artist" took someone else's song, and turned down the treble a bit? Maybe added "yeah" at the end of every chorus? Probably not, you would think of them as pretty lame, actually.

Would you consider someone taking a song, playing it slightly faster as original? Or would you think of it as pretty lame? Would it be more artistic if he did all the work manually, shifting the bits by hand with a calculator?

In many cases, sure. Let's take the example of early MF DOOM tracks like "Rhymes Like Dimes" and "Who You Think I Am?" - the beats consisted of little more than a pitch-shifted song married with messy unsyncopated drums hammered out on a sampler. They were sloppy, simple, and amazing. Though the "transformation" was minor, there was so much creativity in the choices: at the time, hip-hop was really beginning to foment the "wannabe gangsta" trend that can be so annoying. Beats were "grimy and dark" but really clean and neat. DOOM flew in the face of that, choosing source material that sounded almost like elevator music and adding drums that encouraged melodic flows over simple rhythmic posturing. They made such an astonishingly good backing to his innovative lyrical style while being very unusual, and though they were objectively uncool by any possible measure, a lot of people latched onto them. His series of instrumental discs, Special Herbs, has been a favourite of underground rappers and DJs ever since. The creativity was all in the choices he made, not in the seemingly simplistic manipulations he performed.

Now, this particular piece of appropriation art doesn't resonate with me the way MF DOOM's beats do, but once again, I'm not here to only defend the art that I like. What Brainwash is doing is no different from what so many artists I love have done. MF DOOM was, of course, forced to license all the samples he used before releasing his tracks - and since he is such a prolific producer, I have no doubt that there are hundreds of beats he has created that he cannot share with the world because he is unable to secure the necessary licenses.

Today that is the situation for all sample-based producers. Even someone with millions of dollars like Kanye West faces it all the time, but he can afford to buy his way out by, as a last resort, paying someone new to re-record the sample he used (see: All Falls Down, Gold Digger).

I don't think it's right that artistic expression costs money - that fair use is replaced by the need to buy legality. I don't want to see it happen to appropriation artists the way it happened to sample artists.

It's annoying that you can't get past your own artistic tastes and look at something objectively. Nobody gives a fuck if you are "impressed".
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Marcus Carab (profile), 11 Jun 2011 @ 9:59am

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There's still tonnes of sampling in hip-hop...
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Marcus Carab (profile), 11 Jun 2011 @ 10:00am

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(not to mention beat-sharing, remixing and mashing up)
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White Corn, 11 Jun 2011 @ 10:16am

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It is futile to try to have a logical discussion with 1karbuni2, as a quick look at their past comments will tell you. If they do not even grok the difference between plagiarism and appropriation there's no way to discuss any of this with them without coming out of the exchange stupider than when you went in.

On topic, yes there's still tons of sampling in hip-hop and more restrictive licensing has meant that only hit machine major label stuff with big enough pockets to pay $$ for sampling are going to be winning this game. We all know how great the behemoths in the music industry machine have been at embracing and promoting cutting edge innovation and art. Ha.
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Marcus Carab (profile), 11 Jun 2011 @ 10:20am

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They didn't use someone else's work. They didn't use a pre-made setup. They didn't let someone else create the image. They created it.

Now let's address this complete piece of bullshit. Yes, the artist put together certain aspects of this image. But...

Did he dress Run DMC? Did he choose those hats and jackets, those iconic glasses? Did he cut their hair and trim their beards? Did he build that brick wall? Did he wear and weather it just so? No.

He made many creative choices in the course of putting these elements together, but many of the aspects that make his photograph what it is were NOT the product of his own creativity.

Again, you are drawing a subjective line. You are saying that finding a subject and a scene to capture counts as a creative choice, but finding an image to appropriate and a medium in which to do so doesn't. You say Brainwash is lazy for using someone else's image - well what if I say Guetta was lazy for using a camera instead of choosing a more creative way to capture the image in the first place? If Brainwash's art added nothing, then nobody would care about it - instead it adds an unusual choice of medium that clearly attracts and interests people. It doesn't replace the photo. Guetta will still get paid when hip-hop books and magazines want to run the most famous image of Run DMC. Brainwash will sell some of his pieces to people who like that kind of stuff, so he'll get paid too.

So not only do I not see the difference between the two artists, I don't see the problem with the situation either.
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Anonymous Coward, 11 Jun 2011 @ 11:01am

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That said, do you mean to tell me that it would be appropriate for me to take characters from your pieces, make vinyl figures of them and sell them at HotTopic for $20 a pop?

For me, as an artist, yes. Just spell my name right.
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Marcus Carab (profile), 11 Jun 2011 @ 11:12am

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pardon me - I messed the names up there. By Guetta I mean Friedman. I keep thinking Guetta is the photographer's name because it rhymes with Vetta, which I use often :D
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Androgynous Cowherd, 11 Jun 2011 @ 5:02pm

The judge in this case self-contradicted. First:

That line of reasoning seemed like a non-starter from the beginning, and the judge wastes little time dumping it, pointing out (as photographers always do) that the copyright on photographs is for things like the framing, light, shadows, clarity, depth of field, etc., which were artistic decisions by Friedman, in this case. Given the vast amount of case law on such things, this part is no surprise.

But then the judge rules that the art is a copyright infringement? What the art copied was Run DMC in that pose -- what it did NOT copy, since it was not a photograph, was the stuff listed above as the copyrightable elements of a photograph! It's not only transformative, but arguably not even a copy w.r.t. the copyrightable elements of the original. Where, in Guetta's work, is the "depth of field" from Friedman's photograph to be found, for instance?
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Gotcha, 11 Jun 2011 @ 9:26pm

Bottom Line
Bottom line: Artist 1, Plagiarist 0 Deal With It!!

Unquestionably infringer took the original work without permission and used it without permission to make a derivative therefrom for an unauthorized commercial purpose. Bad boy! That's not nice!

Blackletter law. That's copyright infringement. Not even a close case.

Lesson to be learned: Want to take a copyrighted photo and use it to make a derivative work of art? No matter how artsy the derivative, better get permission from the photographer.
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mar, 11 Jun 2011 @ 9:29pm

we need to rice art education in schools, because clearly these judge not have a sense in art. And we fast need to reform copyright laws or creativity will be death.
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Any Mouse (profile), 12 Jun 2011 @ 7:28am

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In my personal opinion, you aren't a real artist. You are building your art from your own experiences with other peoples' art. In a sense, your own work is still derivative of someone else's. You, sir, are a part of what I feel is wrong with the artistic community, these days.
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Anonymous Coward, 12 Jun 2011 @ 7:53am

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Nope. Guetta started with the photographers image, not what he could see with his own two eyes in the real world. He didn't get the three guys from run DMC together (can't do it, one of them is dead) and he didn't ask them to strike a pose, and he didn't do any of that.

He took a photograph, laid plastic over it, and make a duplication of someone else's work.

The difference is as plain as it gets. If you can't understand that, I can then understand why you cannot understand copyright law either.
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Marcus Carab (profile), 12 Jun 2011 @ 9:37am

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Lol, no. You just keep falling back on this same subjective statement.

You do realize that the Run DMC photograph wasn't sent to Guetta from heaven along with a note that he should copy it right? HE CHOSE IT - from a whole word of things he could have chosen to work with.

So answer me, simply: why is choosing a person as a subject more creative than choosing a photograph as a subject?

In fact, what if I want to assert that the photographer was the less creative one from a purely artistic standpoint? He relied on a camera to take a picture-perfect recording of what he say. He didn't even have the creativity to experiment with a new medium and technique the way Guetta did.

See what I mean? It's all subjective. If you are mature enough to rise above your personal tastes and opinions about art, you will admit that the objective elements of creativity are present to the same degree in both works.
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Marcus Carab (profile), 12 Jun 2011 @ 9:44am

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If someone were to take the Nine Inch Nails stems and make a million dollars off of a recognizable song via remixes, if that money actually got made, you don't think Reznor would sue the shit out of them? Really?

My guess is that Reznor would probably go on tour with them, release an album with them, and send them masters of the entire NIN catalogue to work with... He may indeed ask to share some of that money as well, but not via lawsuits - he would treat it as a business opportunity, and find ways for both of them to make even more money and even more music.
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Anonymous Coward, 12 Jun 2011 @ 10:26am

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Thought that was an interesting question, so I read through the FAQ on the NIN remix webpage/site last night and saw nothing regarding selling remixes specifically.

The FAQ has interesting things to say about record labels and restrictions, too:

http://remix.nin.com/

Some idle googling revealed his is the second time Reznor's tried sharing for remix purposes. The first was shut down by Universal over some MySpace copyright crap, then he escaped from Universal and tried again.

Radiohead did something similar but charged for the stems, unlike NIN, but they are still with a label.

I'd wager Marcus Carab's vision of what might happen would fall close to the truth. I didn't see anything addressing that situation during my short search last night, however.
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Anonymous Coward, 12 Jun 2011 @ 10:43am

Re: Bottom Line
The copyrighted work by Friedman was a photograph.

The purportedly infringing work was not a photograph.

It is therefore not plagarism. Copyright was granted to the fixed and tangible form of Friedman's photo only, not the idea or concept of the photo, which is what Guetta appropriated and then fixed in a different tangible form of broken pieces of plastic and the board to which he affixed them.

Guetta wasn't passing off Friedman's photo as his own photo. If he had, I'd totally agree with you that it was certainly an act of plagarism.

Had Guetta been present at the time the photo was taken and somehow convinced RunDMC to stand in that exact pose for hours on end while he constructed his work, would that make a difference somehow? Would Friedman still have a claim?
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Anonymous Coward, 12 Jun 2011 @ 11:42am

Re: Re: Re: Re:
It still goes to show: you are confusing technical ability with the actual creation of art. The ability to lightly transform something or to add very little to the existing art work isn't art itself. The judge recognized this very clearly.

It isn't a question of taste. I can enjoy drunken office workers doing a karaoke version of New York New York in a bar in Tokyo, but I can also understand that it is neither new or particularly artistic. While they could record it and release it as a song, they would still have to pay for the underlying song which is not theirs.

Which brings us to the key point here. The underlying work does not belong to the "artist", so it pretty much kills the discussion. He could have been original, he could have made his own from scratch, but instead decided to use someone else's work and just go from there - without getting the rights to do so.

The judged got it right. They didn't judge if his work or technique were or were not particularly artistic, just that it was too clearly based on the underlying work, which he did not have the right to use.

You are off debating relative skill. Try working from facts instead.
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Marcus Carab (profile), 12 Jun 2011 @ 12:04pm

Re: Re: Re: Re: Re:
Actually it seems like you are the one confusing technical ability with the creation of art. If you paid attention to my post, you would note that I said MF DOOM's beats involved very little technical ability - the art emerged from the choices he made. You seem to think that art becomes art thanks to the amount of measurable work the creator did - but copyright doesn't work by a sweat-of-the-brow system.
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Anonymous Coward, 12 Jun 2011 @ 3:15pm

Re: Re: Re: Re: Re: Re:
I am not getting confused at all here. You keep trying to circle around and ignore the obvious: MF DOOM's stuff would be just a bunch of random drum pieces (and probably dull) without the underlying music that is not his. His biggest initial choice is to copy someone else's work.

There is also no "sweat of the brow" in play here either. You are playing with the term art, when the rest of us are playing with the fact that art or not, the work(s) in question are not original, just duplications.
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Marcus Carab (profile), 12 Jun 2011 @ 3:49pm

Re: Re: Re: Re: Re: Re: Re:
And I say they express every bit as much originality as the pieces they appropriate. As I said somewhere else in this thread, we clearly have fundamentally different philosophies about art, so I don't see any point in pursuing this further.
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gdizzle, 12 Jun 2011 @ 11:27pm

The person who wrote this article is obviously a big fan of rip-off artists and/or is a rip-off artist himself. To use the euphemism "appropriation," is to disguise the fact that such art lacks creativity. If you think that originality is not the quintessential quality of a great artist, then you are not appreciating the gifts and talents of those artists who don't have to rip-off other artists to make great art. Think about it, the type of art that captivates society and lasts through the centuries are not rip-offs. The ripped off art eventually gets exposed and is scoffed at, or at best are marginal icons of pop culture (Shepard Fairey). The judge in this article did the right thing, and he elucidates the fact that it is just plain offensive and wrong to assume that another artists creations (e.g. photographs) are open source for other artists to alter and profit from. I am an artist, and whenever I embark on a new art piece I always ask myself "how can I make this original, creative, and unique." Let's evolve past this bullshit "appropriation" style of art. It's a total rip off. Think about this, if you were a scientist and you spent your entire career working towards a new discovery, would you be happy if your colleague claimed credit for your work? Like a scientist, artists should contribute to the great diversity of human knowledge and experience, but they should also have rights as to how their art is used and displayed.
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Jason, 13 Jun 2011 @ 6:43am

Re: Re:
"but this whole 'making a statement' thing has always baffled me."

Dude, just say that you don't get it.
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Jason, 13 Jun 2011 @ 6:53am

Re: Re: Re: Re: Re: Re:
No, court approved art with money on it is the only good kind.
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Jason, 13 Jun 2011 @ 7:04am

Re: Re: Re: Re: Re:
"The artist's medium is wonderful, whatever. It isn't very relevant, because without the original image that he copied directly from, there would be nothing that you consider art."

I agree. Like if you did a gelatin mold of an Andy Warhol painting, then Campbell's soup should TOTALLY get a slice of the jell-o!
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Marcus Carab (profile), 13 Jun 2011 @ 7:56am

Re:
You are making one major fallacy: you think that art cannot involve appropriation and also be original at the same time.

It can. Once you realize that, you will actually understand this stuff.
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Anonymous Coward, 13 Jun 2011 @ 8:07am

Re: Re: Re: Re: Re: Re: Re: Re:
Obviously there is little reason to go further, because while you understand why you have it wrong, you do still have that wonderfully silly idea that using someone else's hard work and claiming it as your own is okay.

It is more of the disrespect for the work of others that current culture seems to cling to, with a lack of any real creativity.
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Anonymous Coward, 13 Jun 2011 @ 8:10am

Re: Re:
You can appropriate and add some originality, but in the end, whatever originality is added is only relevant because of what was appropriated. Without it, it is meaningless. It is the artistic equivilant of the master framer claiming the Mona Lisa as his, because he added some originality to the painting. It's a laughable bit of logic.
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White Corn, 13 Jun 2011 @ 8:15am

Re:
To use the euphemism "appropriation," is to disguise the fact that such art lacks creativity.

No, that's not a euphemism. That's the technical term. It's helpful if we start a discussion with the assumption that specific words have specific meanings.

If you think that originality is not the quintessential quality of a great artist

Rookie belief and completely untrue. Self taught artists who have not bothered to study art history, particularly contemporary art history, beyond memorizing some dates and names in order to appear knowledgeable share this belief. You might want to go to the library and check out some decent books on the historical evolution of art.

Think about it, the type of art that captivates society and lasts through the centuries are not rip-offs

Which is why it's so difficult to ascertain whether a huge number of "Master Paintings" were done by the Master in question or by one of his students, how much of each "Master Painting" was painted by the master himself, etc.

I am an artist, and whenever I embark on a new art piece I always ask myself "how can I make this original, creative, and unique."

Inform yourself better. Read a few books and essays by art historians. I can provide you with a list if you're not sure where to start.

Think about this, if you were a scientist and you spent your entire career working towards a new discovery, would you be happy if your colleague claimed credit for your work?

Pretending someone else's work is your own is plagiarism. The issue at hand is about appropriation. If you have read the other comments, read the article thoroughly, and still don't understand the difference, I'm not sure what to say. Other than again, education is your friend.
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Marcus Carab (profile), 13 Jun 2011 @ 10:05am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I'm afraid it's you who is disrespecting and dismissing a whole tonne of art, because you think it isn't original enough based on your subjective standards. I'm the one who actually has respect for artists buddy, not you.
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Marcus Carab (profile), 13 Jun 2011 @ 10:11am

Re: Re: Re:
but in the end, whatever originality is added is only relevant because of what was appropriated

So? A great war novel is only relevant because the war actually happened. The photo of Run DMC is only relevant because they are one of the world's most famous hip-hop groups. No art exists in a vacuum of total originality - and often, the closer it gets the less relatable and resonant it becomes.

You argument continues to be plainly silly, holding no water at all.
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gdizzle, 13 Jun 2011 @ 12:44pm

keep typing away. appropriation = ripped off (no matter how you argue it, it's really just as sad attempt for rip-off artists (who don't want to invest the time and energy to be original) to garner attention and, most of all, make a profit.) keep defending appropriation, and keep making money off of it, but it's still a load of bullshit.
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gdizzle, 13 Jun 2011 @ 12:44pm

keep typing away. appropriation = ripped off (no matter how you argue it, it's really just as sad attempt for rip-off artists (who don't want to invest the time and energy to be original) to garner attention and, most of all, make a profit.) keep defending appropriation, and keep making money off of it, but it's still a load of bullshit.
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Marcus Carab (profile), 13 Jun 2011 @ 1:19pm

Re:
Wow you're so convincing... way to back up your arguments with well thought-out and supported points! No bullshit in gdizzle's mind - clean as a whistle!
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jagger, 13 Jun 2011 @ 1:27pm

"Pretending someone else's work is your own is plagiarism. The issue at hand is about appropriation. If you have read the other comments, read the article thoroughly, and still don't understand the difference, I'm not sure what to say. Other than again, education is your friend."

Mr. White Corn,

Apparently, you think you're much more intelligent than he who does not agree with appropriation. This is a classic example of a pompous individual, you, dismissing your opponents as dumb solely because you disagree with them. That's not going to fly here. Look, appropriation and plagiarism have overlapping definitions. In the case of Shepard Fairey and Thierry Guetta, there is definitely a strong tone of plagiarism. If they had used another's photos simply as a component in their work, then perhaps that's more permissible, but to just take a photo and tweak it, and say "it's mine, buy my art," is just absurd. So Mr. White Corn, get your head out of your ass, stop deluding yourself into thinking that you are superior just because you took some art history courses, and realize that pseudo intellectuals like you are the reason so many people think artists are full of hot air. You can take all the art history classes you want, but it doesn't take any amount of education to know what a rip-off is, and to see that people like you are peddling "bullshit."
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jagger, 13 Jun 2011 @ 1:30pm

Mr. Marcus Carab,

Do you have a life? It seems like you just stare at this website all day, waiting to add another pathetic comment. Half the posts are from you, wow.
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White Corn, 13 Jun 2011 @ 2:34pm

Re:
Hmm, Well, considering the fact you just posted as both gdizzle and jagger multiple times in this thread to support your opinions, you've really got no standing to be calling other people pathetic. Also, arguing for ignorance under the umbrella of "common sense" is what has held culture and scientific progress back in every area throughout history. See also: flat earth, power imbalances between social factions, etc.
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Elisha, 13 Jun 2011 @ 5:10pm

Re:
So what your saying is that if someone else writes a song, I make a better version, I shouldn't owe the first person any credit/monetary reward?

While I agree the vinyl image is a fantastic idea, I don't think it's enough on it's own.

If he went so far as to come up with an extremely interesting method of creation why could he not spend a little more effort to come up with an original image. Yes it's an iconic image. If he must use that image, why not contact the original artist?

I don't understand why it's so hard for people to just get permission. As with the example of a song, if the original songwriter did not write the song, "artist B" would not have anything to go off of. At the very least it's a collaboration and the original artist deserves credit.

I would love to see what all of these people would be saying if it was their art that was being stolen.

Usually it's the fact that people are not giving any credit to the original artist, i.e. portraying their artwork as completely theirs, that is the problem. It's a falsehood.
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Elisha, 13 Jun 2011 @ 5:22pm

Re: Re:
I think it's less about either/or and more about "if you use an idea that 'I' came up with and you didn't, you can not claim it as only yours."

Also branching off of another's work is considered fine, if it's done in a way that changes it significantly.

I don't understand why someone would want to just take someone's idea, modify it such a small amount, then pretend it was all their own idea.

Unless they are not creatively talented enough to stand on their own two feet. It's called credit where credit is due.

While I find your comment to be intelligent and an interesting take on the matter, I feel that the whole discussion is missing the point. The Cambell's painting was free advertising because it was a giant Cambell's can. Everyone knew where that came from. No one would have known the photographer of the original Obama image if there wasn't a lawsuit. I'm pretty sure no one does anyway, just that it was an AP image. It would have been great advertising if he would have said, "Image based on photograph by XYZ from AP." However, maybe said photographer thought his image was worth more than free publicity he didn't ask for. I think it's very presumptuous to assume another artist is going to appreciate the kind of publicity artist B is going to give him. What if I did a painting based on a Christian artists loving portrayal of Christ, but I made it Satanic. Do you think said Christian artist would appreciate my audiences interest? I think the artist is the person who should decide what their image is worth, not the person who is trying to steal it. Clearly they would undervalue it for their own purposes.
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ltlw0lf (profile), 14 Jun 2011 @ 10:48am

Re: Re: Re:
I don't understand why someone would want to just take someone's idea, modify it such a small amount, then pretend it was all their own idea.

You are being a hypocrite then, as Anonymous Coward has presenting this same idea for the last six years or so, and you come in here and post the same idea as your own and pretended that it was your own idea.

See how this works...

There are no new ideas...they have all been thought before. I welcome you to prove me wrong, if you can present an idea that is purely unique and that isn't based on previous ideas, then I will stand corrected.

Implementations of ideas...yes... Once you get passed this misconception that you come up with new and unique ideas 99.9999% of the time, you will continue to live in the dark ages.

Unless they are not creatively talented enough to stand on their own two feet. It's called credit where credit is due.

We all base stuff off of things that came before. Sometimes, we do the right thing and disclaim where we got the ideas from. Other times we pretend it is our own. And even other times, we think it is our own even though we heard it from someone else and forgot where it came from.

While I find your comment to be intelligent and an interesting take on the matter, I feel that the whole discussion is missing the point. The Cambell's painting was free advertising because it was a giant Cambell's can.

I think the discussion here hits the point directly...Ideas cannot be copyrighted, and neither can facts (a pose is a fact, whether it is drawn, photographed, video taped, etc,) no matter how much the news entertainment and sporting industries like to claim otherwise. Campbells may have had a trademark suit against Warhol, but they couldn't really do anything about him painting their product from a copyright standpoint. And whether or not the picture was easy for folks to identify isn't the issue there, nor here, in the fact that the artist took something in another format and created something new from it. And nowhere is it said, in the original article or in Mike's synopsis that the artist claimed the original work as theirs.

The sad thing, I believe, is that he still would have been sued had he posted the disclaimer as to where the photo came from.

What if I did a painting based on a Christian artists loving portrayal of Christ, but I made it Satanic.

The same can be said about any religion. Fanatics exist everywhere. If you did a picture of Jesus, and somehow did it Satanic, I wouldn't care...but many Christians likely would, not from a copyright standpoint, but from an Idol Worship standpoint. Copyright has nothing to do with this anyway...ideas cannot be copyrighted, and I know of no photographs of the Messiah. Bad analogy. Nothing in copyright would restrict you from creating a Satanic Jesus...it's already been done before.

On the other-hand, any picture of the Flying-Spaghetti Monster without expressed written permission of the FSM will likely get me angry -- not.
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Anonymous Coward, 19 Jun 2011 @ 8:01pm

he copied the work of someone else directly, his choice of medium matters little, nothing trans formative about it, hes trying to make a buck of someone's well known work
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Neetish, 18 Apr 2012 @ 9:56pm

what did he copy?
So he made a copy of what he saw in the picture using vinyl bits. He didn't copy the "frame", "depth of field", or any of that stuff the photographer holds so precious. He created a NEW art in the likeness of Run DMC, just as the photographer created his art by taking the picture. if that is a copyright violation, then so is the original picture. people, a photograph, by its very nature, is not original! eg: suppose you record yourself playing a beethoven sonata. then later you hear someone else's recording of the same. do you file a lawsuit against them for copyright violation?
and any originality that the original picture may have had was lost once it was transformed into the vinyl-scrap medium, since it's not an automated photocopy.
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Lune, 13 Jan 2013 @ 12:39pm

Re: Updated
I think it does change the analysis, iirc copyright law. The "commment" has to be on the artist's work which is being copied, not simply "a" comment made using the material. There has to be a reason that that particular piece and no other would do as source material.

There is some creativity and some new, unique expression in the copies, but the uniqueness doesn't come /from/ the copying.
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Oninoshiko (profile), 15 Nov 2016 @ 1:17pm

Art
Art
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Oninoshiko (profile), 15 Nov 2016 @ 1:34pm

Re:
Considering Marcus Carab WORKS FOR TECHDIRT, I would expect him to be on this website all day. It's kinda his job.
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