Transformation of Art: something more than meets an ‘eye’ test.
As I sat here for quite some time trying to think up a catchy title encapsulating something about “transformers” and “more than meets the eye”, I am reminded at just how uncreative I am. Which only serves to underscore my amazement and appreciation of the artists I work with.
Recently I had the pleasure of working with Laura Spector and Chadwick Gray, the artists behind the compelling Museum Anatomy series and other related pieces of work – their work viewable on the website http://chadwickandspector.com.
I met Laura and Chadwick through unfortunate circumstance, as it turned out a so-called “artist” based in France was reproducing, offering to sell, etc. counterfeit paintings of their Museum Anatomy series via a number of online French galleries. What I told Laura at the outset is that taking an action here in the US and trying to accomplish a legal result in France would be nothing short of a miracle. However, through crafty legal work and utilization of the public report site, Copypedia, we were ultimately successful in getting each and every gallery to remove any and all of the infringing content. Success!
From a legal standpoint, the Museum Anatomy pieces are fascinating. Essentially the artists tour the world finding old paintings (“old”, as in, the works are well into the public domain) that are then transposed (or painted) onto a model. Then, a photograph is taken of the model, thus resulting in various original constituent elements that are now subject to copyright protection.
Here is an example comparison between the original ‘Wishbone’ work by Nicholas Gysis:
and the subsequent 2D visual art by Chadwick and Spector:
“Transformation” came up in my initial conversation with the artists, as they had been told (egregiously inaccurately) that because the French artist was selling paintings instead of photographs, it was not really copying. Huh?
First, it is true that “[n]ot all copying…is copyright infringement.” This stems from, among other things the balance between the copyright clause of the Constitution (“To promote the Progress of  useful Arts…”) and exclusive rights provided to creatives through the US Copyright Act (American capitalism at work: enjoy the fruits of labor, reap what is sowed, etc.).
Or put another way, preexisting works are not supposed to stifle new works, but instead inspire them; however, we also want to incentive people to be creative by allowing them to be paid for their time, toil, and effort. Thus in order to help strike a balance copyright protection only extends to original constituent elements of a work, not necessarily the entire work as a whole.
For a photograph, protectable elements of originality may include posing subjects, lighting, angle, selection of film and camera, shutter speed, evoking the desired expression, and almost any other variant involved.
While the Museum Anatomy works are more akin to authorized derivative works, what if the underlying works were not in the public domain? Would the new 2D visual art be “transformative” enough in the fair use sense? A difficult question to answer on first impression.
Transformation falls from a fair use factor codified in 17 USC 107:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”
I have heard artists discuss a “10 %” eye-test rule (“as long as you’ve changed the work 10%, that’s good enough”), which is nothing short of a myth. Perhaps a useful Rule of Thumb, but utterly useless from a legality viewpoint. Instead, to be transformative, the use of the old work needs to be altered with new expression, meaning, or message. This Nolo Article provides a nice overview of cases viewed as transformative/not transformative.
Unfortunately there is no "bright line test" to determine whether one work supersedes the purpose of another, and it will always be a case-by-case assessment. In the case of the French artist creating paintings based on Museum Anatomy photographs, there was nothing transformative – it was an exact copying of original constituent elements (e.g., printing the protected elements of the photograph onto a canvas medium). When there is no fair use exception, the typical analysis for an infringement will be “access to the work” and “substantial similarity” of copied protectable elements.
In cases where the copying is easily discernable to an ordinary observer, “striking similarly” (without access) is sufficient. The striking similarity in the French copying is without question, as shown here by example:
Whatever legal scope of protection is provided to the Chadwick & Spector Wishbone work (i.e., to the original elements of the new work), they were exactly copied.
These sequence of events then led us to discuss paintings by George W. Bush of various world leaders alleged to have been “lifted” from photographs. This UK Article discusses the matter. I was not aware of it until Laura brought it to my attention, but I found it quite captivating. In contrast to the situation faced by my Clients, I did not find the Bush paintings to include elements that were substantially, let alone strikingly, similar to what I would perceive as original elements in the photographs. Remember – it is not the entire work (i.e., the whole photograph) that receives copyright protection, but rather only the original elements.