12.13.12 STEALING AND TAKING

This article originally appeared in the 12.13.12 issue of Metroland.

            Let’s talk about stealing versus taking.  Let’s start with stealing.  While walking around Miami’s huge Art Basel fair last week, artist Jason Levesque spotted three paintings that looked familiar.  In fact, they were fairly precise copies of three of Levesque’s high-concept photographs that featured posed women, dressed and made-up unusually.  The paintings differed only in that the backgrounds were changed and some of the women’s clothing were different colors than in the photos.  Otherwise, the very realistic paintings were nearly identical to Levesque’s work.

            Understandably Levesque went bonkers, and posted on the web that the painter, Josafat Miranda, was a thief, and explained very clearly the nature of the theft:

What Josafat Miranda has done here reveals a total disrespect for photography as an art form. He’s quickly and with very little creative altercation, harvesting the yield of someone else’s hard work.

            Miranda issued a sad non-apology, stating that he hadn’t stolen anything, and that his only mistake was not crediting the photographers (he had copied some other photographers as well).  He then described how he was broke, how he’d apologized to Levesque and destroyed the offending paintings.

            Even in this age of appropriation art, what Miranda did was stealing.  He took Levesque’s creative vision and presented it as his own.  His paintings don’t comment on the photographs, or anything else for that matter.  There is nothing of consequence added to the images in the photographs.  The purpose of the paintings is exactly the same as the photographs: as decorative works of art. 

            So, yes Josafat, you stole.  And had you credited Levesque, that wouldn’t fix things, you’d still be a thief.  And the fact that you’re broke, well, that’s too bad, but you’re still a thief.

            An article on the always-excellent PetaPixel website compared this to the Shepard Fairey Hope controversy from a few years back.  But really, it’s vastly different.  I’m going to do something unusual.  I’m going to defend Shepard Fairey.  Sort of.  So now we move from stealing to taking.

            As you might recall, Fairey’s Hope poster, created for the 2008 Obama campaign and mimicked everywhere, was sourced directly from an Associated Press photograph.  There was a lawsuit that Fairey needlessly screwed up by destroying evidence and lying to the court and his lawyers (he was held in contempt of court fined $25,000 and sentenced to two years probation).  Which is too bad, because the lawsuit would have been interesting: did the Hope infringe the AP photo, and if so, was it fair use?

            I submit that it wasn’t infringement at all, because while Fairey obviously took something from the AP photograph, what he ended up using wasn’t something protectable by copyright law.  Copyright covers creativity, and so with photographs it covers only the creative aspects the photograph, things done by the photographer above and beyond just pushing a button, things that contribute to the photograph’s image.  The AP photograph was taken by a press photographer named Manny Garcia, who was shooting an event in Washington DC in 2006 where Obama was seated next to George Clooney.  Presumably, Garcia was doing what press photographers on assignment do: he was shooting a ton of pictures, hoping that one or some of them would capture something special.  Unlike Levesque’s photos, which were staged in a studio, with a chosen subject posing at the photographer’s direction, elaborate lighting, make-up, and clothing (and likely retouching afterwards), Garcia’s input consisted of getting into position, choosing the settings on the camera, and shooting away.  In terms of copyright law, there’s not a whole lot in the AP photo that’s protectable.  Compared to Levesque’s photos, which get strong copyright protection because of the level of the photographer’s creative input, the AP photo’s level of copyright protection is relatively thin.

            And what did Fairey take for Hope?  Nothing more than the outline of Obama’s face.  Which the AP doesn’t own, although it apparently thinks it does.  Fairey didn’t take the photograph’s composition, framing, depth of field, lighting, coloring, shading, or anything else that might qualify for some protection.  The AP argued that the image of Obama’s face was the product of all of these “choices” made by the photographer, like the angle of the shot, the timing of the shot, etc. and so on.  Give me a break.  Ferry took, but he did not steal.  It wasn’t infringement, and we don’t even need to get into that gnarly fair use analysis business, because what he took isn’t covered by the AP’s copyright in the photo.

            Too bad Fairey was such an idiot and screwed up the case.

Paul Rapp is an art and entertainment attorney who, along with Ted Potrikus, will be playing the worst Christmas music ever recorded on Friday, December 14 and Friday, December 21 at 3 PM on Great Barrington’s community radio station WBCR-LP 97.7 FM and streaming at Berkshireradio.org