Slashdot Mirror
Can You Commit Copyright Infringement By Using Your Own Work?
Mrs. Grundy writes: Notorious appropriation artist Richard Prince has been in the news again with his show consisting of screen shots of other people's Instagram photos printed as large inkjets on canvas. These prints have reportedly sold for $90,000. In 2013 Prince successfully defeated a lawsuit for a previous appropriation by convincing the court his work was 'transformative' and it's likely this new work would also find a sympathetic ear in the court. Among the photographs whose work he used this time were several from the Suicide Girls Instagram feed. In response, Selena Mooney, cofounder of Suicide Girls, began offering exact replicas of Prince's pieces that used her photographs for a mere $90. Photographer Mark Meyer looks at the bizarre possibility that if Prince's use of Mooney's work is transformative and fair, Mooney's might be copyright infringement.
> screen shots of other people's Instagram photos printed as large inkjets on canvas
This is no way that this is "transformative."
It's simple, if it's copyrighted, it's copyrighted. It doesn't matter that it's a derivative of your own earlier works. That a screenshot (of someone else's work) is copyrightable is the problem. If you were to copy his method to come to a similar (or even identical) work, you'd be legal, but to copy his exact work, it doesn't matter that it's transformative of your original work.
These issues have been well explored in music, where "borrowing" from others is well known and broadly practiced.
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The whole act of putting the almost exact replica from the original copyright owner is a commentary on the issues of the weirdly selective broad reach of copyright. Thus it should be protected free speach.
Yes, you can commit copyright infringement by using your own work, since using your own work doesn't inherently mean also not using anyone else's work. Also, just because something is "your own work" in the sense that you created it doesn't necessarily make you the copyright holder at all. Next question please.
Drawing pistols at dawn.
If a court decided that it was a different work (IE: Not derivative of the original piece) and you make an exact copy of that piece then yes, that's copyright infringement. If it's so different that you'd never have had that idea on your own, even if all the component pieces are your photos, the arrangement of them is not. If the piece is so similar that you could accidentally replicate it by, say, printing your photos on one page or some shit, then the original court would likely have not found the piece to be sufficiently different to warrant its own copyright protection. God, I'm not even a lawyer and that seems clear to me.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Given that money can be considered speech, the fact she is reducing the price so much is, itself, transformative. No other alteration to the work was necessary: the price difference alone speaks volumes.
modern "fine art" artists are jerks. In stead of learning how to make masterpieces they are all about attitude and crap. All modern art is just a drug deal game anyways, it's all about laundering money it now appears. What, did you really think some screaks of blue paint was worth 100 million to some Eastern euro people when the old masters don't fetch that much? Also I bunch of tax doges.
I thought the rule was, when the headline asks a question the answer is always "no". This must be one of those rare exceptions.
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And nobody has yet mentioned John Fogerty? Slashdot, I am disappoint.
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"The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."
Because of people like him, photographers will need to watermark all their pictures even more thoroughly than before, and not just in some corner where it can be easily cropped out. Considering he's terrible at using photoshop, I doubt he will be able to remove a watermark well placed right in the middle.
If the barrier for what constitutes "transformative" is set very low, it's only reasonable for the courts to set the bar on what is considered "derivative" very high. If he has protection for transforming her own work then she should have similar protection for deriving from her own work. As soon as he does something transformative, it becomes obvious.
"The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."
I completely agree and wish that I had mod points. I see her response almost as a parody of the ridiculousness of the entire situation. I don't know how a court would decide, but I would definitely argue that the response is transformative in the same way as Prince's work. The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince’s.." and that would make the argument that they are a new work of art very difficult.
Copyright is a statutory right to exclude others from copying your expression. If a copyright owner accuses a third party of infringement. The accused infringer has some options. Two options are key and the distinction between the two make the entire blog and this discussion mute. The two options are, attack the copyright itself, or suggest even if something is copyrighted he/she enjoys immunity from copyright infringement. (You can argue both, and most folks do.)
The first, course of action divests the rights enjoyed by the copyright owner. The second course of action is immunity from infringement. So, if you assert Fair Use, you are being granted immunity from copyright infringement. While granting such immunity, the court considers the four factors. The "transformative nature" is merely a factor in a fair use analysis to grant you immunity. Fair use, does not grant you copyright protection, it merely lets you off the hook.
So, the entire blog post is %#%^$^$, and a waste of everyone's time.
Now the real argument for copyright protection of the twitter plus comments being converted into art lies in the fact that the original author of the picture did not create all the comments (I didn't bother checking). So, the final work in this case is an amalgamation of the copyright in the image, which you probably transfer to Instagram when you post, the layout of the post which is again owned by Instagram and any comments which are probably again owned by Instagram ( I haven't looked at the IP section of the Instagram user agreement, but you can check what you gave away when you signed up).
So really, just creating a copy of the Instagram "wall" is not a new work meriting copyright protection. His addition of a line is probably de minimus. So, really neither the original photographer nor the usurper enjoy protection.
Hope this clears things up. It's not as complicated as the blogger makes it out to be, and he is certainly wrong on the implications.
The key to this is that Mooney is "transforming" Prince's "work" in exactly the same way he "transformed" hers. If her use is infringing, so is his. The "transformation" of simply making a large printout isn't going to fly. Copyright doesn't depend on the size or transmission method.
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It's called "self-plagerism," and it most commonly occurs when someone publishes a paper in a journal that claims the copyright. Then, if the author uses their text without approval, it's a copyright violation.
You don't answer fire with fire but with a purple flock of flying Easter bunnies, attacking Godzilla's cloaca with their tentacle-like bunny ears. That is the way of novelty, Noveldo.
1. Yes, you can infringe your own work. Easy example. Write code for your employer. Your employer owns that code. Move to next employer and write the same code. The new code infringes the copyright in the previous code.
2. The concept of whether something is transformative goes to whether or not it can be considered fair use. Fair use doesn't require that the work be transformative, but it helps.
3. Usually fair use looks at things like commentary, satire, etc. You don't see much fair use selling for $90k.
4. If the Suicide Girls are doing exactly the same thing (i.e. taking photos of a computer screen) they might be able to argue fair use. Goose and gander, right? But simply duplicating Prince's work would seem to fall short.
Just add their logo in the bottom corner of all the movies and call it art.
But of course the law is about playing favorites ...
Since he got sued for sounding too much like himself and the court apparently ruled that no, he doesn't sound like himself.
Modern app appers protect apps using apps!
Apps!
I do not know what happened in the last case, but this new "art" is literally just a screenshot of a post. Since he added nothign to it, other than a pricetag, no one would buy the transformative angle.
Troll is not a replacement for I disagree.
and that situation depends is if you are a company or not. If you are not, you do not have any rights anyway.
Don't fight for your country, if your country does not fight for you.
this is fucking genious i'm going to try this
Copying a work verbatim is not generally 'transformative' (save maybe Google image thumbnails).
She should have put his collage into her own collage and sold THAT. Then she'd have more of a defense here.
Right now this sounds silly, but it could be a bad Slashdot summary too, so who knows.
The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince's.." and that would make the argument that they are a new work of art very difficult.
How so? They are alternatives, substitutes even. That is the point. The price for that piece of art is arbitrary and inflated by artificial scarcity, which she denounces and replaces with accessible art for the masses, thus showing us the true colors of the commercial art world, which, even when faced with appropriation art, still favors scarcity over impact. If the number of copies is so important to the art establishment, then how is changing the number of available copies not an artistic act? And to really drive it home, she does it in a performance that is thinly veiled as a commercial endeavor: Art posing as business in response to business posing as art. You'd have to be a complete philistine to not recognize it. (I'm not being facetious here: Obviously her selling these pictures is a comment on the appropriation of her own pictures, and should be seen in the same light. She did not open a business where you can buy replicas of just any piece of art, just replicas of the pictures related to her own pictures. That it elicits the most revealing response imaginable proves her insight.)
The problem is that copyright has been treated as a right similar to free speech and real world property rights, maybe not as essential but still something that a person "naturally" deserves. Sure copying is stealing in some non-legal senses of the word "steal", and of course, there are no really natural rights since even the right to life is forfeit in certain circumstances (like when you have a dynamite strapped to your waist and running toward a group of people threatening to blow them up). But copyright has no analogs or equivalents among other animal species.
A tiger or dog marks its territory in an act that parallels the property rights of a person living in a capitalist democracy or tribal rights in a tribal society. On the other hand, a monkey imitating another monkey's fruit gathering skills isn't attacked or harmed for the mere act of aping the possibly beneficial behavior. Copyright is clearly an artificial construct, a hack to "promote" technological or cultural progress rather than as an end into itself. Forgetting this goal is why we're in this copy-tyrannical mess.
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Wow, that was fun!
Sure, you can be sued for violating the copyright on your own creation. John Fogerty was, in one of the most egregious misuses of copyright law to date: http://mentalfloss.com/article... Yeah, John Fogerty got sued for writing a song that sounded too much like a John Forgerty song. Go figure...
I've abandoned my search for truth; now I'm just looking for some useful delusions.
So wait a minute... a lawyer managed to bring a case that would require the review of source material that consists of picture of scantily clad girls.... and they're getting paid for that?!?! BRILLIANT!
... to really drive it home, she does it in a performance that is thinly veiled as a commercial endeavor: Art posing as business in response to business posing as art. You'd have to be a complete philistine to not recognize it.
Brilliant! Everything is part of the performance! I really love it. It takes it to a whole new level of meta.Thank you for that insight.
I had never thought of framing it like that. I had approached the situation from the assumption that her actions were of anger/spite, but you're absolutely correct. I wonder how deep this rabbit hole can go...
They contain additional comments, making them transformative in the same way Prince's works were transformative.
It's no big surprise to see even something like a phone box in a major art gallery :)
http://cleowho.tumblr.com/post...
That's not relevant since the original photographer didn't sell the rights while John Fogerty did.
Stupid situation and an abuse of the legal system - yes.
The same thing - no.
My work is 'transformative' as well, when I re-encode blue-ray disks to .mkv
I have a feeling something like this would work...
1. Find image of appellate judge (in robes) that will preside over case. ...and somewhere out there, Charlie Sheen says "win win"
2. Find most provocative publicly shared image of judges closest female relative (or male, why not...we're about to be art'in it up)
3. Photoshop the image of judge with meme-tastic captions like "My ohhhhh my!" in the corner said scantily clad relative
4. Bring it to court with you as Exhibit A
5. Call the media and tell them what you've done. Tell them the original piece(s) will be for sale if the appeal loses and such "transformations" are deemed legal.
The sarcastic point here is... I wonder how the judge would feel if it were his daughter having her instafacebook photos raided and pilfered to be sold for tens of thousands of dolllars? Or if the photo-transformed-original-art was embarrassing to him/her in some way.
What about Shepard Fairey's iconic poster for Obama in 2008? That used a photograph taken by a reporter for the AP. They demanded compensation and it went to court and he lost. They wound up settling the case, but the reality is, even though he completely changed the nature and medium of the photograph it was considered copyright infringement not transformative or even fair use. This case seems to come to the opposite conclusion -- anyone claiming to be an artist can take any photograph I took and posted on Facebook or my blog and reprint it with one or two tiny changes and sell it, and he owns the copyright whereas I don't.
Just look at the GEMA in Germany. Artists playing their own songs on their own instruments at their self-organized concert have to pay GEMA fees to cover copyright requirements. The artists don't get a cent unless they are a member of GEMA...which of course costs money. Copyright control organizations like GEMA who operate in a gray area of the law and without any oversight nor transparency are nothing else than government accepted mafia.
Oh how I wish I had mod points! +1