Copyright or wrong?

10 04 2013
china-copyright-Capotondi

On the left: Claudio Capotondi, ‘Sferosnodo’, 1983. On the right: copy of ‘Sferosnodo’ outside Kunshan station, China. Image via The Art Newspaper (www.theartnewspaper.com)

I’m sure I’ve used that headline before. Actually, I know I have. But it’s too good to resist. Besides which – it was two years ago, and more of a subheading than a headline.

Anyway, another to add to my ongoing file of copyright/authorship conundrums… (a couple more linked here and here).

According to The Art Newspaper (TAN), Italian artist Claudio Capotondi has made inroads into the Chinese art world. A version of the work he produced in 1978, Sferosnodo, was selected for permanent display at the front of a station in the city of Kunshan, China.

The only catch? Capotondi had nothing to do with the creation of the sculpture on display in China. It is much larger than the artist’s own work, which he first made in bronze in 1978, and again in marble in  1983. He also had no idea the gargantuan version was being made.

But now here’s the mind-bending thing. Think about ‘authorship’ and what you think it means in the context of fine art. Well, Capotondi is now campaigning to have the new version attributed to him. Although I had a look, and it appears that his website is now offline, according to TAN, Capotondi lists the sculpture as his own on his site. He has also said that he admires the work. “There are excellent craftsmen over there. It is a complex structure and the copy is much bigger than my original.”

So according to this, blatant plagiarism can result in a work of art for which an artist can claim authorship, even if he or she had no idea it was being made, far less any involvement with its creation.

OK. So, does that mean that Gucci is going to claim authorship for the dodgy knock-off handbags sold in the streets? Unlikely, because they wouldn’t want to acknowledge such shoddy craftsmanship. Not to mention, their trade relies on the premise of ‘exclusivity’. Does that mean artists will claim authorship of a stolen design only if the object produced measures up to their exacting standards? And does that mean that if I were to whip up a completely excellent Damian Hirst, that he would claim authorship, and I’d be in possession of an original Damian Hirst, rather than a derivative Meaghan Wilson-Anastasios? Of course, there are laws in Australia and internationally that would make the latter scenario more complicated. But I’m talking theoretically.

Makes you think, doesn’t it?

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Prince and Gagosian up the creek without a paddle, part 2

31 03 2011

A small addenda to yesterday’s post about the finding against Richard Prince and Gagosian Gallery. Patrick Cariou, who successfully challenged Prince for infringing his rights as an artist, has given an interview to Andrew Goldstein of ArtInfo Read the rest of this entry »





Richard Prince and Gagosian up the canal without a paddle: copyright or wrong?

31 03 2011

In a ruling that should strike fear into the collective heart of artists worldwide, Richard Prince and Gagosian Galleries have failed in their defence of the case brought against them by photographer Patrick Cariou for copyright infringement (Cariou’s photo is on the far left, and Prince’s painting is on the right).

Prince acknowledged that he used at least 41 of Cariou’s photos from his publication, Yes, Rasta, as the basis for his Canal Zone series of paintings, exhibited at Gagosian’s West 24th Street branch in 2007. Echoing the case brought against Shepard Fairey by Associated Press for his use of Manny Garcia’s photo of Obama in Fairey’s now iconic Hope poster (a case that was settled earlier this month), Cariou claimed that Prince didn’t satisfy the terms of ‘fair-use’ under copyright legislation.

In summary, four main tests are applied to determine whether or not the ‘fair-use’ defence applies (the full finding is available here). The first point for consideration is whether or not the artwork is sufficiently ‘transformative’ – in the words of the presiding judge, the derivative artwork must result in something that is ‘plainly different from the original purposes for which it was created’. The precedent to which the judge referred was established in the landmark case, Rogers v. Koons, in which Jeff Koons unsuccessfully defended a similar claim made by photographer Art Rogers.

One of the other factors that came into play in the ruling is the ‘nature of the copyrighted work’, meaning that the appropriation of design work produced for commercial purposes is more likely to be covered by the ‘fair use’ defence than ‘fine’ art. Although the defendants attempted to claim that Cariou’s work was more documentary than creative, the judge rightly ruled that fine art photography is rightly protected under the copyright legislation. Cariou could also show that his own market had been substantially damaged by Prince’s appropriation of his work – although he had booked an exhibition of prints from Yes, Rasta with Manhattan dealer, Christiane Cele, she cancelled the exhibition because, according to papers lodged in the hearing, she did “not want to be seen to be capitalizing on Prince’s success and notoriety…and did not want to exhibit works which had been ‘done already’ at another gallery”.

The outcome? The defendants have been ordered to: “deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, films, negatives, discs and other articles for making infringing copies.” All current and future owners of Canal Zone paintings must also be informed that the artworks infringe Cariou’s copyright, and that they cannot legally be displayed.

What does this mean for artists? For one thing, best seek copyright permission before making significant use of someone else’s work in your own. Or, only make use of material that is not subject to copyright. If you find yourself getting defensive about an artist’s right to free and unrestricted expression, just give yourself a gentle reminder that the purpose of the law is to protect all artists’ moral rights – that is, the right to be acknowledged as the maker of an artwork. It’s been this way in the music industry for ages. I’m open to any rational arguments as to why the visual art world should be exempt from these laws.

This is all part of a very interesting ongoing discussion about whether or not art, and artists in particular, are above the law. This is always the question that pops up when the “art or porn” debate rears its ugly head – the Bill Henson fracas is the latest example of this. Until very recently, artists have usually been given a leave pass when it comes to laws such as defamation, pornography, and copyright. These test cases suggest that the times might be a’changing.  That this ruling has gone through in the jurisdiction that is the strongest advocate for freedom to speech is particularly telling.

(image: ‘The Art Newspaper’)





Is it right to copy? Visual artists and copyright.

7 05 2010

I’m not going to go over the well-trodden ground that is the appropriation debate, covered here and here. But I am going to throw this one into the ring… After the on-air discussion at the ABC earlier in the week, I asked Sam Leach a question that has been puzzling me for some time: what his response would be if an artist whose work he did not particularly admire – for argument’s sake I used Ken Done as an example – appropriated one of his works of art, altered it slightly and signed it, presented it as his own, then started selling postcards and t-shirts down at the Rocks in Sydney embellished with said image.

I won’t influence your thinking on this conundrum by repeating Sam’s very reasonable response. But the subtext to the question is – are the laws of copyright in the visual arts set to one side in instances where the appropriator is an artist whose work the progenitor of the image admires? If we’re to look at the cold, hard legal facts of the matter, the appropriated artist’s copyright is infringed where substantial portions of their work are reproduced by another artist without their prior consent. But it is up to the artist to enforce their rights – if they approve of the outcome of the appropriation, they’re hardly going to prosecute the artist who has referenced their work. But what if the maker of the original image is unhappy with the altered image? Or does not approve of the way the image is being presented or sold? Appropriation and the use and alteration of imagery that, according to strict legal precedent, can be subject to copyright laws is a central tenet of many contemporary artists’ work both in Australia and internationally. But the practice is characterised by many and varied shades of grey. Should the question of whether or not the matter is prosecuted depend upon the artist’s discretion, or should there be a more objective set of standards and procedures in place?

The debate has been well and truly sorted out in other arts sectors. The case in music is clear-cut – just ask Men At Work, who are no doubt cursing that now infamous flute riff in ‘Land Downunder’ (can the flute riff? Hmm). As it is in theatre and dance – if you stage a performance, the creator will be given due recognition, even where the director and cast may have dramatically reinterpreted the author’s original production. In that instance, all contributors to the production will be given due credit. But it will be promoted as “so-and-so’s production of such-and-such’s ‘thingumy-jig'”. In the visual arts it has, to date, mostly been an ad hoc approach based on artists willingly waiving their rights to accommodate the practice of appropriation. But it is interesting to consider what would happen in a case such as the example given above.

(image: Marcel Duchamp, ‘L.H.O.O.Q.’, via http://www.eng.fju.edu.tw)





Nothing new under the sun: lessons in appropriation 101

16 04 2010

Ever since Marcel Duchamp signed a (thankfully, factory-fresh) urinal ‘R.Mutt’ and presented it at the 1917 Society of Independent Artists’ exhibition in New York (illustrated at left), art has been as much about ideas as it has been about the objects that artists make. For many contemporary artists, the object itself is a by-product of the artistic process, and far less important, if not virtually irrelevant, to the action of making the artwork which for many artists is the principal artistic activity.

Artists like Sam Leach, whose Wynne prize-winning painting is attracting such controversy at the moment, appropriate other artists’ imagery under the very reasonable assumption that there is nothing new under the sun, and that the premise of ‘originality’ is something of a furphy in the world of art. For example, renowned American artist Sherrie Levine uses her own camera to take photos of famous works of art, and then signs and exhibits them as her own. Her best known series, one of which I reproduce below, is after the photographs of Depression-era photographer, Walker Evans. Levine took her photos from  a book in which the Evans photos were reproduced. So, she printed a photo she had taken from a print of a photo in a book which was printed from a photo of a photo… see what she’s doing there with your idea of what is original?

The most exciting contemporary artists make works of art that are a whole lot more than simply technically proficient visual representations of something else. After all, we’ve got photography to do that these days. Appropriation challenges our preconceptions about originality – what does an artist’s ‘signature’ really mean? For example – when Picasso’s Weeping Woman was stolen from the National Gallery of Victoria in 1986 by a group calling itself the Australian Cultural Terrorists, Juan Davila painted a perfect replica of the painting and presented it to the NGV. He wrote a letter to the gallery to accompany the painting, saying that he was presenting it ‘to allow you to have the same masterpiece at no cost’ and so that the gallery could ‘direct your attention to contemporary art in Australia and the plight of young artists, ignored for so long by your gallery.’ Needless to say, the NGV declined Davila’s gracious offer and, much to the gallery’s relief, the painting was returned intact.

The question of arts funding aside, it cuts to the heart of one of the issues that artists who appropriate other artists’ imagery have been wrestling with for decades – if it were an exact replica of Picasso’s painting, how would it diminish an audience’s experience if they were viewing the replica rather than the original? What is it that differentiates one from the other? If art really is about visual experiences, why should it matter if you stand in front of a faithful copy of a famous painting? In a physical sense, the object you are looking at differs in no way from the original. One of the ideas that these artists are playing with is that the very idea of  the ‘original’ and ‘authentic’ object is perpetuated simply because it serves the market’s best interests. For various reasons, I don’t totally agree with this – humankind’s propensity for worshipping genius as embodied in art objects goes back much further than that – but that’s for another day.

Sherrie Levine.jpg

In short – the argument that Sam Leach should be stripped of his prize because he has ‘copied’ another artist’s work is, to be polite, painfully simplistic (although, see yesterday’s post for my ponderings on the question of copyright, which is another issue altogether). It does still leave open the question I raised about whether or not he was eligible to enter the competition under the terms of the prize, however. But that’s one for the AGNSW trustees to figure out.

(images: Marcel Duchamp, ‘Fountain’, via: http://www.tcf.ua.edu; Sherrie Levine, ‘After Walker Evans’, 1981, copyright Sherrie Levine, via: www.artsjournal.com)





Does Sam Leach’s Wynne prize entry suck? The art of appropriation.

15 04 2010

File:Boatmen Moored on a Lake Shore 1668 Adam Pynacker.jpg


Well, yet again we find ourselves in the midst of a full-blown Australian art prize pickle. Not since Bill Dobell caused a fracas with his Archibald prize-winning portrait of Joshua Smith in 1943 (is it a portrait, or is it a caricature?) have so many newspaper column inches been dedicated to a debate about what, exactly, constitutes ‘art’. For your consideration – on the top we have Sam Leach’s winning entry, Proposal for landscaped cosmos. Below that, Adam Pynacker’s 1668 painting, Boatmen moored on a lake shore.

Anyone who knows anything about Leach’s theory and method would not be at all surprised by the nature of his Wynne entry. A cursory glance at his website makes it very clear that he is appropriating (for that, read ‘borrowing’) imagery directly from the great Dutch painters of the 17th century to pass comment on the nature of affluence and, to a lesser degree, the close relationship between the workings of the art market today, and the boom in the art trade that took place in the Netherlands during the 1600s, coinciding with the speculative lunacy of tulipmania where single tulip bulbs were selling for the price of a house. Sound familiar? Leach isn’t the first person to draw parallels between our very own recently deflated stock market bubble and the irrational exuberance of the 17th century Dutch economy. Which also ended with a crash, by the way.

But there are a couple of questions that I’d like to throw into the ring. One is the question of copyright – clearly not an issue in this instance as Pynacker is long-deceased and so not in a very viable position to prosecute Mr. Leach. But, on a broader level, it is an issue worthy of consideration. Reproduction of a work of art or literature is permitted under law if it can be shown to be subject to ‘fair use’ – so, for example, for the purpose of research, criticism and reporting news. Seems pretty straight forward. But, what if an artist takes an image made by another artist, alters it (however imperceptibly), presents it as his or her own, and accrues financial gain from said activity? Although market commentator, Michael Reid, has said in an article in The Age today that “artistic licence lets you cross any copyright boundaries. It’s open slather”, the same is certainly not true for other art forms. The case in the music industry is very clear, as witnessed by the enormous payments made to musicians when another artist ‘samples’ their work in their own – most notable recent-ish example (showing my age, now) was when The Verve was forced to pay The Rolling Stones all of the royalties from ‘Bitter Sweet Symphony’ for using the hook from ‘The Last Time’. And things for visual artists may also be-a-changin’. In the US of A, artist Shepard Fairey, who made the now iconic Obama ‘Hope’ election poster, is embroiled in a far from straight-forward legal case with Associated Press, which claims he infringed copyright by using an AP photograph as the basis for his artwork. Borrowing an observation from a colleague, why are the visual arts treated as different when it comes to issues of copyright? I’m not saying it’s wrong, necessarily – just suggesting that it’s a question worth asking.

Final thought –  Pynacker spent three years studying in Italy before returning to the Netherlands and settling in Amsterdam. He became one of the most renowned Northern painters of Italianate allegorical scenes inspired by the Italian Baroque. He painted landscapes such as this one, showing a romanticised genre scene infused with warm Mediterranean light, and framed by verdant foliage, informed by plenty of plein air excursions in the footsteps of Claude. But the setting itself is, most likely, allegorical and imaginary. So – can a scene conjured up in the imagination of a 17th century Dutch painter qualify as “the best landscape painting of Australian scenery in oils or watercolours … completed during the 12 months preceding the [closing] date …” which, according to the Prize website, is what is required of the winner? Perhaps the rule itself is rather archaic and silly. But, it’s a rule nonetheless and one that, presumably, the other entrants stuck to. Again, it’s a question worth asking.

(Images: top – Sam Leach, ‘Proposal for landscaped cosmos’, via: http://www.thearchibaldprize.com.au; bottom – Adam Pynacker, ‘Boatmen moored on a lake shore’, via: http://commons.wikimedia.org)