Some of you may have read about AP suing an artist, as the artist used a photograph (owned by the Associated Press) as a basis for the very well known Obama Hope graphic.
It started off an interesting discussion between me (into fine art and graphic design) and my husband (trained in photography) , read on for more on this.
To start this off, this is the image causing the problem, and the photo it is based on
Now, this particular case aside, we got on to the subject of artists using other artists work within, or as a basis for, their own work.
Which got me thinking about how often this happens, and whether or not it is acceptable or not.
To me the first one that springs to mind is work by Andy Warhol (for the record – I am not a fan), who obviously used photographs as a basis for his images, one of the most famous being the picture of Marilyn Monroe, based on a promotional photo by Gene Korman. I started with this one as it is the most similar case I could think of to the Obama Hope image. Should Gene Korman have sued Warhol?
What if we change the mediums?
If it is copyright infringement when someone uses photographs in their creation, is it also copyright infringement when a photographer uses someone else’s creation in their photograph?
Because if it is, where does the entire genre of fashion photography stand? The fashion they shoot is someone else’s creation after all. Same goes for architectural photographers, someone designed that architecture. Any photographs with anything designed by man would surely count?
So you couldn’t feature packaging, clothes, or in fact anything that wasn’t 100% natural. After all, your chairs are designed, your electronics are designed, etc.
How about when both images are the same medium?
Such as Duchamp’s version of the Mona Lisa?
Or Dali’s version of the Venus de Milo?
Now, looking up Copyright I find this definition,
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.
Derivative work, according to US law,
…is an expressive creation that includes major, copyright-protected elements of an original, previously created first work.
I’m pretty certain that all of the examples I’ve mentioned would fit that definition. Including fashion and architectural photography.
While I obviously believe that straight out copies are completely wrong and should be punishable, derivative work is a much greyer area. Changing a couple of small details, say, thinning a line , or tweaking a shade, doesn’t seem like a good enough reason to get around copyright. But what about the examples above? Where do they fit on that line?