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.”[1] 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.[2]
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.
