9.3.15 TITS AND POPE

This article was originally published in the 9.3.15 issue of Metroland.

            You’ve no doubt caught wind of the painted topless ladies cavorting around Times Square in New York City.  It’s a hilarious coda to the decades-long reinvention of Times Square from a seedy porn mecca to a big garish tourist mall that real New Yorkers avoid like the plague.  And despite the Governor and the Mayor both registering outrage over these pubic displays of boobage (one of the few things they seem to agree on) it’s universally agreed that, in New York anyway, it’s perfectly legal.  It goes back to a short 1992 Memorandum-Decision by the New York State Court of Appeals that ruled that a state law criminalizing the exposure of a woman’s, but not a man’s, breasts was unconstitutional.  The only thing about this that’s perplexing is why it took so long for this topless deal to become mainstream.  That is, if you consider Times Square mainstream.

            Actually, there’s a pioneer in our midst who blazed the way for this sort of behavior.  A few years ago I was hired by local film-maker Chris Stearns to review (for legal issues) his film Topless Shock Syndrome about the travails of Schenectady native Holly Van Voast, a photographer and conceptual artist who, in 2011 and 2012 went around New York as her alter-ego Harvey Van Voast, “the topless paparazzo”.  The film follows Harvey, generally topless, with a painted-on mustache, as she (he?) talks to strangers in the subway and on the street, is hassled endlessly by police, etc. and so on.  Harvey was arrested numerous times, forced into a mental hospital for a psychiatric evaluation, and always, every time, she was set free, mainly because of this 1992 court decision.  She eventually sued the City in federal court, received a nice settlement, and the lawsuit resulted in New York police policy being changed to allow for women going topless.   The documentary is equal parts hilarious and thought-provoking, not to mention extremely timely, and if you’re interested you can find it on Amazon.

            Moving on.  The Pope’s coming and you know what that means:  official Pope merchandise!  The World Meeting of Families organization, a Vatican-sponsored organization that is apparently bringing his Popeness to Philadelphia, commissioned a pop artist named Perry Milou to whip up some nice Pope images.  One in particular, of the Pope throwing a kiss, is available at the WMF site adorning a tote bag, a coffee mug, a t-shirt, a paperweight, and a couple other tchotchkes.   Over on Milou’s site, the image is on a wide variety of expensive limited edition prints (including an “Andy Warhol-style” version), and the “priceless” original painting is up for a cool million.

            There’s just one problem.  As Buzzfeed first reported, the image is a direct cop of a photograph owned by Getty Images.  Oops!  And it’s an extremely realistic painting, wrinkles, warts and all.  Our friends at Techdirt compared this to the Shepard Fairey “Hope” Obama imbroglio from 8 or so years ago, going so far as to say that a painting of a photograph is almost always transformative and therefore fair use and not infringement of the photograph’s copyright owner’s copyright.

            I’m not so sure.  As we’ve discussed here before, I think Fairey would have won his case against the Associated Press (if he hadn’t destroyed his case by hiding evidence and lying to everybody, including the court) because he so drastically altered the original Obama photograph.  By the time Fairey got through with it, there was little left of the original photo other than the contour of Obama’s face and the tilt of his head.  Because the copyright can’t possibly protect these things, I don’t think Fairey’s poster was non-infringing.

            In contrast, the Milou painting, as I just said, is a slavish reproduction of the photograph, really down to minute detail.  While Milou used only the Pope’s head in his painting (the original photograph had some composition in the placement of the Pope and a background of blurry flags), the level of detail is so great that I think Getty has a good claim that Milou ripped off the photograph and that the rip-off constitutes copyright infringement. And it pains me to say this, because I don’t like Getty Images and their nonsensical bullying tactics in chasing around every John Q Public who sticks a precious Getty image on his website.

            Apparently, as we speak, Milou and Getty are “in discussions” and I suspect Getty will get a significant chunk of Milou’s and World Meeting of Family’s proceeds from the sales of this stuff.  Which will probably be pretty huge, Catholics being who they are, and this wonderful Pope being who he is.  We’ll see whether Getty does the right thing and gives the money to charity.  And we’ll see if any of Milou’s other Pope images (there are several) are infringing as well.  Yikes!

Paul Rapp is an entertainment lawyer who over the weekend ignited a nasty online incident over the propriety of horse racing.  So nasty that he decided not to write about it here.  Maybe next year.