{"id":17617,"date":"2013-09-28T23:49:32","date_gmt":"2013-09-29T03:49:32","guid":{"rendered":"http:\/\/www.nearbycafe.com\/artandphoto\/photocritic\/?p=17617"},"modified":"2015-02-22T14:20:52","modified_gmt":"2015-02-22T19:20:52","slug":"the-photographer-and-the-painting-3","status":"publish","type":"post","link":"https:\/\/www.nearbycafe.com\/artandphoto\/photocritic\/2013\/09\/28\/the-photographer-and-the-painting-3\/","title":{"rendered":"The Photographer and the Painting (3)"},"content":{"rendered":"

\"A.One-Way Street?<\/strong><\/p>\n

For every painter or graphic artist who appropriates or derives iconography and other content from photographs, there’s a photographer who imitates or otherwise bases work on paintings, as I indicated in my previous post<\/a>.<\/p>\n

Yet I find remarkable differences between photographers and other visual artists vis-a-vis this practice, differences that fall outside the actual craft and creative activities involved.<\/p>\n

\u2022 First, photographers and their representatives sue others for copyright violations at an astonishing rate, compared to painters and other graphic artists. They sue other photographers (see\u00a0Gordon v. McGinley<\/a>); they sue\u00a0videographers (see David LaChapelle v. Rihanna\/Melina Matsoukas<\/a>); they sue sculptors (see Rogers v. Koons<\/a>); and they\u00a0sue painters and graphic artists (see below). In some cases they prevail, in others they don’t, but photographers frequently turn litigious when anyone borrows from them.<\/p>\n

\u2022\u00a0Second, artists in other visual media generally turn a blind eye to photographers’ borrowings from their works (see previous post<\/a>). I haven’t researched this thoroughly, but a Google search for\u00a0“painter sues photographer copyright violation” turned up no single relevant result. (I’ll welcome instances supplied by my readers.)<\/p>\n

\"ASMP\u2022 Third, photographers \u2015 including those who sue others for borrowing from them \u2015 stay mum when their fellow practitioners of the lens-based media borrow from copyrighted works in other visual media. So do their professional organizations, such as the\u00a0American Society of Media Photographers<\/a>, though these collectives dependably rally around photographers whose work gets appropriated.<\/p>\n

\u2022 Fourth, some art critics and cultural journalists come down extremely hard on painters who work from photographs, as enumerated in previous posts<\/a>. However, they too usually\u00a0stay mum when photographers borrow from works in other visual media; in some cases, they celebrate these activities. Meanwhile, photography critics seem to have nothing to say on the general issue, though they offer opinions \u2015 generally praiseful \u2015 on specific instances.<\/p>\n

Whence this disconnect? Does the hypocrisy bother no one save me?<\/p>\n

Three Major Cases<\/strong><\/p>\n

The three most prominent 21st-century cases of unauthorized appropriations of photographs by painters are, in chronological order,\u00a0Joy Garnett<\/a>‘s 2003 interpretation, in a painting titled “Molotov,” of the central figure in the iconic “Molotov Man” photograph<\/a>\u00a0made by\u00a0Susan Meiselas<\/a>\u00a0in Nicaragua in 1979 and copyrighted by her; Richard Prince’s use in 2007 of some three dozen copyrighted images of Rastafarians by Patrick Cariou from his 2000 book Yes Rasta<\/a><\/em>; and Shepard Fairey’s 2008 adaptation for\u00a0his “Hope” poster<\/a>\u00a0of\u00a0an April 2006 Associated Press\u00a0photograph of Barack Obama\u00a0by freelance photographer Mannie Garcia, all rights to which are owned by the AP.<\/p>\n

Garnett\/Meiselas and “Molotov Man”<\/strong><\/p>\n

\"Harper's

Harper’s Magazine, February 2007, page 53, detail.<\/p><\/div>\n

The Garnett\/Meiselas dispute got resolved out of court, with the threat of a lawsuit inspiring a subsequent agreement from Garnett to remove the jpeg of that painting from her website and credit the photographer in all future showings and reproductions of this work, with no licensing fees involved. (Click here for\u00a0a transcription of a thoughtful exchange<\/a>\u00a0between the two principals, as published in\u00a0Harper’s<\/em>\u00a0in 2007.) I haven’t seen the original painting, but, from the reproductions, Garnett’s effort doesn’t strike me as significantly more “transformative” than Bob Dylan’s reworkings of a handful of photographs.<\/p>\n

The parallels with\u00a0Bob Dylan’s painterly practice<\/a>\u00a0(which triggered this series of posts) seem obvious, as do the disparities between their professional behavior: Dylan paid a licensing fee for his usages, Garnett simply took what she wanted. Yet Ann Binlot<\/a>, Richard Polsky<\/a>,\u00a0Mallika Rao<\/a> and\u00a0their ilk, who piled on Dylan for painting from photographs, haven’t accused Garnett of “ripping off,” “stealing,” “plagiarism,” “intellectual theft,” “line-for-line mimicry,” or any other sin. No, on this their lips remain sealed. So much for consistency, not to mention intellectual integrity, among these critics and cultural journalists.<\/p>\n

Prince\/Cariou\u00a0and Yes Rasta<\/em><\/strong><\/p>\n

\"Patrick

Patrick Cariou, “Yes Rasta” (2000), cover.<\/p><\/div>\n

The\u00a0Prince\/Cariou contretemps<\/a>\u00a0worked its way up the Federal court system; initially, the District Court sided with Cariou. Most recently, on appeal, this past April the Second Circuit of the Federal Court held mostly in favor of Prince, based on the “fair use” exception to the copyright law, using reasoning that I find opaque. (Click here for\u00a0a synopsis of the decision<\/a>\u00a0at LawUpdates.com.) As the\u00a0New York Art Law Blog<\/a> opines,<\/p>\n

“This decision represents a coup for appropriation art, and will make it more difficult for plaintiffs to prove that unauthorized derivative works constitute copyright infringement unless those works are almost identical to the original work. This is perhaps indicative of a shift in our society where creative works are routinely undervalued and appropriation art and illegal downloading are increasingly more common and more socially acceptable.”<\/em><\/p>\n

Fairey\/Garcia and “Hope”<\/strong><\/p>\n

\"Building

Building in Denver, CO, with Shepard Fairey poster of Obama, 2009. Photo by David Shankbone, courtesy Creative Commons.<\/p><\/div>\n

Shepard Fairey’s poster became an iconic image during then-Senator Barack Obama’s first run for the White House. Once the image’s source became identified, the Associated Press demanded compensation. (Freelancer\u00a0Mannie Garcia<\/a>, who had made the source image in 2006 while\u00a0on assignment for the AP, believed he had retained copyright, but later dropped that claim.)<\/p>\n

Fairey countersued\u00a0for a\u00a0declaratory judgment\u00a0that his poster constituted\u00a0fair use<\/a>\u00a0of the original photo. In January 2011\u00a0the parties settled out of court, when the judge told Fairey that, on the merits, he would lose; details remain confidential. Here’s the Wikipedia summation<\/a>\u00a0of the case.<\/p>\n

Fairey subsequently pleaded guilty in a New York federal court to destroying and fabricating documents during this legal battle. He\u00a0was sentenced to two years of\u00a0probation, 300 hours of\u00a0community service, and a fine of $25,000.<\/p>\n

Fairey’s done this before, with photographs by others. As with the instances above, the comparison with Dylan proves instructive: Dylan elected to pay for the appropriate licenses, Fairey took without asking or ponying up. (I should add that Fairey vigorously\u00a0defends his own copyright-protected works against use by other artists. Talk about gall.)<\/p>\n

\u2022<\/p>\n

In the first two instances artists and the art world rallied around the artists, in the case of Garnett waging what got dubbed\u00a0Joywar!<\/a>\u00a0on the original image and its maker, digitally flashmobbing Meiselas. The\u00a0Andy Warhol Foundation for the Visual Arts\u00a0filed an amicus brief<\/a>\u00a0in support of Prince, which figures, given Warhol’s penchant for appropriation.(Click here to\u00a0read and\/or download<\/a>\u00a0that document.) So did the\u00a0Center for Internet and Society<\/a>\u00a0at Stanford Law School. (Worth noting that, as pointed out in “No longer appropriate?”<\/a> Laura Gilbert’s May 9, 2012 report for The Art Newspaper<\/em>, Warhol faced lawsuits in the 1960s for unauthorized use of photographs by Patricia Caulfield, Fred Ward, and Charles Moore. he settled out of court in all three cases, deciding thereafter to license rights to photos by others.)<\/p>\n

\"Shepard

Shepard Fairey, “Hope,” National Portrait Gallery, installation, 2009. Photo courtesy National Portrait Gallery.<\/p><\/div>\n

For reasons unclear, Fairey’s case did not evoke substantial art-world support, though, in 2009, the Smithsonian Institution’s National Portrait Gallery announced<\/a> it had acquired his original hand-finished collage version of the image. During the legal proceedings he was represented by Anthony Falzone, executive director of the\u00a0Fair Use Project<\/a>\u00a0at\u00a0Stanford University.<\/p>\n

The Photographers Archive Council of America, which represents Corbis and Getty, and the American Society of Media Photographers, joined by 7000 individual photographers,\u00a0filed an amicus brief<\/a>\u00a0in support of Cariou. (Click here to\u00a0read and\/or download<\/a>\u00a0that document.)<\/p>\n

\u2022<\/p>\n

What, if anything, can we glean from the outcome of these situations?<\/p>\n

In the cases of Garnett and Fairey, lawsuits or the threat thereof resulted in out-of-court settlements in favor of the photographers or their agencies, Meiselas and the Associated Press, respectively. In the case of Prince, the courts swung like pendula as the case climbed the appeals ladder, ultimately resolving decisively in favor of Prince.<\/p>\n

So the threat of legal action may work for photographers, at least on artists like Garnett and Fairey, who lack the funds for a protracted legal tussle. But the law’s now on the side of those who borrow, not those who originate what’s borrowed, with an increasingly broad interpretation of the “fair use” exception to the copyright statutes.<\/p>\n

Moreover, by imitating paintings as freely and frequently as they do, and by tolerating and even endorsing such activity by their fellow practitioners, photographers undercut themselves and their colleagues who object to such infringements on the part of visual artists, abandoning any claim to the moral high ground. Were I the attorney for\u00a0John Currin, should he decide to sue photographer Peter Lindbergh for replicating my client’s 1997 painting\u00a0\u201cThe Cripple,\u201d I’d submit Susan Meiselas’s rationale<\/a> for her objections to the decontextualization of her image as supporting documentation.<\/p>\n

Can We Talk?<\/strong><\/p>\n

\""Seduced

“Seduced by Art: Photography Past and Present” (2012), cover.<\/p><\/div>\n

The interchange between still photography and the graphic arts has been extensive, flowing in both directions. Many books have annotated it, and exhibitions such as\u00a0“Seduced by Art: Photography Past and Present”<\/a>\u00a0at the National Gallery in London this past year have paired photographs with the works from which they derived, and vice versa. It’s a two-way street. (Laura Cumming’s nuanced review<\/a>\u00a0of this show in the London Observer<\/em> is worth reading.)<\/p>\n

For that very reason, what’s sauce for the goose must get treated as gander gravy. If, from a critical standpoint, it’s creatively disreputable for painters to replicate photographs with great precision or work from them more loosely, then the same must apply to\u00a0photographers responding to paintings and other works of visual art. Critics who denounce the first practice yet have nothing to say about the second define themselves as hypocrites. (Yes, Ann Binlot, Richard Polsky,\u00a0Mallika Rao, I’m talking to you.) As a critic, you either have a principled position on such usages in both directions or you’re simply opportunistic when castigating one while ignoring others.<\/p>\n

From a legal standpoint, if\u00a0graphic artists are required to seek permissions and, if granted, license rights for usages of copyrighted photographs, then photographers surely have an obligation to do the same when basing their images on works in other media. Failure to insist on this quid pro quo by establishing a principled position regarding appropriation by photographers brands the membership of the ASMP and other organizations of photographers as two-faced and self-serving. Shame on them.<\/p>\n

\u2022<\/p>\n

For an index of links to all posts related to this story,\u00a0click here<\/a>.<\/p>\n

\u2022<\/p>\n

This post\u00a0supported by a donation from Norbert Kleber.<\/p>\n","protected":false},"excerpt":{"rendered":"

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