This article originally appeared in the 12.13.12 issue of Metroland
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.
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.
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
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
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.
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.
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?
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.
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.
bad Fairey was such an idiot and screwed up the case.
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