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.
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.
It is if you have the right lawyers.
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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.
People said exactly the same thing about Prince's use of Patrick Cariou's photos where he reproduced Cariou's photos with a few objects pasted on. But the court saw it differently.
Pencil drawings? Copyrighted?
> screen shots of other people's Instagram photos printed as large inkjets on canvas
This is no way that this is "transformative."
Nor "art":
> appropriation artist Richard Prince
Appropriation (art)
Antisthenes: "Wisdom begins by examining the words/names." - excuse my English, i am (slightly...) better with my Greek!
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.
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.
That is a good point......and it truly communicates more than the Richard Prince's 'transformation'
"First they came for the slanderers and i said nothing."
You should actually read the articles, because the issue at hand is somewhat more complicated.
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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TFA specifically mentioned that this would be unlikely to work. However, you could argue that the irony in the concept of 'copyrights all the way down' might be sufficiently transformative so as to enjoy copyright protection.
Thus, it would really be 'copyrights all the way down'. Or perhaps recursion.
Faster! Faster! Faster would be better!
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."
You should actually read the articles, because the issue at hand is somewhat more complicated.
I wish I still had mod points today, because while I find what Prince is doing to be disagreeable and slimy... you're absolutely right.
Now, regarding his high-end clientele - it's funny how often it's demonstrated that "a fool and his money are soon parted". Wealth is so obviously not a proxy measure of intelligence.
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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.
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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 ...
there's no way that that is fair use, regardless of transformative.
Transformative doesn't mean you don't need the originial copyright holder's permission. Only fair use does.
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.
Yep, there are a few transformative angles you can take.
First thing to note, is that it is unlikely that Richard Prince would sue. I guess that for the price tag, each print is unique. Why would he print twice the same thing when it takes him all of 10 minutes to find a decent image, screenshot it, print it and sign it (apparently for the Instagram copies, his comment is the signature, he doesn't even bother to sign) ? There is no loss of sales for him, and he's able to find suckers for his "unique" prints. Why would he risk losing a case ?
But in the hypothetical case... the courts say that an use is transformative (Firefox's spell checker doesn't like that word...) when it is "altering the original with new expression, meaning, or message".
About the expression, given that Suicide Girls have the original image, they could "reinterpret" the print by enhancing it with the original quality instead of the screenshot quality, and argue how it's adding depth, or adding contrast with the surrounding low-res text or whatever.
Or if it is about the context changing its meaning, at first it was an Instagram post, then it was a part of an art exhibition, then it is a re-appropriation for a charity. Hence I'm arguing that Mark Meyer's comment on how "While Prince’s use of Mooney’s photos adds new and significant context, Mooney is simply selling copies of Prince’s work with no additional contextual commentary" is wrong. In the end, the "context" is only about your capacity to convince that, really, "it isn't what it looks like". And Richard Prince is much more seasoned at that game than Mooney ever will.
About the message, I was thinking along the same line as you did. Something like, this is the actual message (the $90,000 / $90 poster), and the sold prints are only parts of the overall artwork, as so many parts of the message. With both Prince and Mooney, it's the same relation between the individual print and the "meaningful context" (art exhibition / re-appropriation for a charity).
However, I agree with Mark Meyer on that point, the "we added the "suicide girl true art" message" is probably not going to cut it.
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and that situation depends is if you are a company or not. If you are not, you do not have any rights anyway.
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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.)
When he brings the screenshots into the physical world via large prints and specific arrangements in a gallery I can see an argument being made for it being transformative though it he does seem to be a very disingenuous artist to me.
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They didn't exactly duplicate his pieces, they did to his pieces exactly what he did to theirs: copied the piece exactly except for adding their own comment(s) at the bottom. That'd put him in a bind, he can't win against them without guaranteeing everyone whose work he appropriated a win against him. IMO Meyer's fear-mongering on that point.
There's another twist too. The only part Prince significantly changed is the comments on the images. But the comments and the copyrights on them aren't owned by the Instagram users whose images Prince used, they're owned by the people who posted them. Certainly I can use work A for purposes of commentary on work A, but can I use work A for purposes of commentary on work B by a different creator?
so much of what passes for art these days is degenerate shit.
Snowden and Manning are heroes.
Keep in mind that to many artists the place you see an object is a big part of the work. Simply by converting the photos from an electronic format on Instagram into large canvas prints in a gallery he transformed the works. There are actually entire schools of art devoted to taking random shit, placing them in galleries, so everyone can stand around speculating about what you meant when you decided to display your bed*. And if if the new photo counts as a transformation then it's a completely new work and the original owner's copyright does not apply. In other words he can almost certainly get as many Doctors of the Fine Arts as he wants to write impassioned essays defending his right to do this shit.
Always remember: the law is 100% logic, 0% common sense.
That said, I'm pretty skeptical that the Courts would buy it. The case he won he actually changed a guy's pictures to the point that you can instantly tell the Prince version from the Cariou original even when both of them are digital reproductions on your monitor.
*The bed in question sold for 150k GBP top a collector, who just sold it for $4,351,969 so clearly this bed is art and not pretentious BS from lazy people who mistake a tendency to over-analyze with intelligent commentary.
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.
Does this mean pirated movies are transformative if you add a border containing weird art? Can you re-sell Beatles music if you "transform" it by adding a track containing cowbell?
Sounds weak.
so much of what passes for art these days is degenerate shit.
I agree - and i think this is happening because we are "forced to respect" every degenerate shit, without the propper criticism (which must be done with respect, but must be real criticism) that seperates shit from art.
Antisthenes: "Wisdom begins by examining the words/names." - excuse my English, i am (slightly...) better with my Greek!
Yeah, I saw one "artist" who took a radio, as is, and called it art. Well, it might be art, but it wasn't her art. It belonged to the uncredited industrial designers who made the thing. She also blew up some images of the literature accompanying the radio and called that her art too.
I hope one of the Instagram photographers does sue him. $90,000 ought to be worth it.
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.
This is NOT your work as it is done for an employer so you agreed to their terms. Therefore you didn't infringe on YOUR work because it wasn't YOURS to begin with.
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.
The problem is Prince has no original work. If he is copying so preexisting thing off a screen and converting the media that doesn't change the content only the media. What he is doing is no different than taking the colorized version of 'Its a wonderful life' and making it 3d, and then claiming its his because behe made it 3d.
so much of what passes for art these days is degenerate shit.
The technical term you're looking for there is from German, "entartete Kunst".
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...
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... 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.
Could Ms. Girl take Prince's work and add, in tiny letters in the corner, "Can you believe someone paid $90,000 for this?" and then sell it?
I often don't like the choices people make, but I like the fact that people make choices. That's why I'm a conservative.
Hey, if it is "transformative art" for some, it is for others too!
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
He adds comments below them, and this he claims makes it both transformative and art. The problem I have, though, is this idea that "transformative" somehow means its no longer a derivative work, because the rights of original creators are supposed to be protected in derivative works under the Berne Convention.
Got them moderator blues I blieve I walk out the do', With these mod-points I been gettin', I 'most never post no mo'
I think he claims transformation as in "adding a personal message in the art" or something intangible.
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.
so much of what passes for art these days is degenerate shit.
Plus ca change.
Always remember: the law is 100% logic, 0% common sense.
I totally disagree. There are many, many places where common sense shows up in law, perhaps more than any other profession (esp. the sciences). You have something like jury nullification, or even just read any court decision. The judge will look to apply a common sense reading of the law to the actions. When laws are written and read down to the letter, what they are looking for is clarity and a lack of ambiguity, so we can say for sure those specific actions are what we intended to prohibit. Sure, laws are passed which dictate certain ranges of responses from judges, but that's just codifying justice and I don't see how that makes it "100% logic".
Another concept you're probably confusing with that of logic is strict liability.
godwinning a thread about shitty art? bravo, your trolling is maximum
Snowden and Manning are heroes.
idk about Goering, but Roehm was quite fond of little boys.
Snowden and Manning are heroes.
No I mean logic. There is a very rigorous framework everyone but the Supreme Court has to follow, and you have to be able to connect every decision you make to that framework. US Courts are not allowed to do common-sense solutions such as threaten to saw a baby in half to see which person loves it more. They have to base their decision on rigorous logic.
They can include some elements of "reasonable man" judgement, but the circumstances that require Reasonable Man's judgment are pretty well-known, and it's very unusual for anyone to read a Judge's opinion on what Reasonable Man would say and disagree. On the other hand, common sense is constantly debated.
In this case it's relevant because common sense would indicate that if he has the right to do it under Fair Use, so does she. But if you actually get into the legal tests it's not that simple. There are four. I'll go through them:
1) The "did they change the work enough to count as transformative?" test. He can make this case, given the change in format, the new context, and the art communities endless ability to rationalize ridiculous BS. She is selling her version as interchangeable with his work. Either her version is a replacement for his work (and not transformative) or it isn't. I give him a 50% chance of winning this test (at best), but she simply can't.
2) This is the test where they apply special rules to factual works, unpublished works, etc. It is irrelevant to this case.
3) The test of how much of the copyrighted work was taken for the copy. In both cases it was 100%. But it only applies if the other three tests are tripped. If he can skate on tests one and four he's fine, and we've established he might be able to skate on test one. She didn't pass test one, so the fact that her work includes 100% of his means she's fucked.
4) The test of the actual damage done to the original work's market. The work he copied is a Instagram post which she may not have retained copyright on. Even if she's making money off it, it's impossible to claim that her income from selling mas-produced copies of it on the internet would be reduced by him selling a single copy for $90k. And as I pointed out back in test one, her entire marketing pitch is "pay this $90 rather then the $90,000 that asshole charges," which makes it rather difficult for her to claim she isn't actively trying to destroy the market for his work.
The article actually describes a case in which he took somebody else's photos from a book, made some small (but noticeable) changes, and then sold them for millions. Once he convinced the Appeals Court he'd passed the first test, the rest were irrelevant, and he forced a favorable settlement. I suspect he'd have trouble proving the first test in this case, as he didn't actually change anything about the images themselves, but he's got the kind of money to hire some really good lawyers.
So yes, the Courts are 100% logic, and that logic could easily turn into an extremely unsensible verdict for our poor Suicide Girl.
1 USD to the winner of the bet?
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.
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