Here’s a high profile (Guggenheim Museum showing), million dollar, artist who ripped off a Marlboro ad campaign, of all things.
Why would there be any hesitation about suing?
Seems like photos of artwork would be protected the same as the original.
I know that Grant Wood sued a lot of people who copied his American Gothic.
I don’t see how the guy has a defense, if it’s a slavish copy of a copyrighted work.
To help clarify, here’s the pictures side by side.
http://www.nytimes.com/slideshow/2007/12/05/arts/20071206_RICHARDPRINCE_SLIDESHOW_5.html
Hm. I’m no lawyer, but I do study image copyright law. And I’d love to see why he thinks he could win a case on “Fair Use” as stated in that second link.
Wow. This photographer is a lot more level-headed than I would be if I knew my “re-appropriated” images were being sold more over a million bucks a piece.
I’m curious, too, to hear how this qualifies as “fair use.” From the images on the NYTimes website, they sure as hell look like exactly the original work with some slight changes in color or cropping–nothing more than what a production person or retoucher might do.
I don’t have time to rehash previous staff reports and threads about fair use, so I’ll just say: It’s very unlikely that a court would find a photograph of a photograph to be fair use. Authors have the right to create derivative works from their original works. The general public does not.
New question raised by these answers:
What happens to the people who bought and sold the copy? If they are determined to have been dealing in pirated images, do they have to give the million to the ad photographer? Do they have to destroy the copies, as though they were pirated DVDs?
Does Sotheby’s have to refund it’s hefty commission?
A copy is a copy is a copy is a copy. What’s the argument here? If it’s copyrighted, it prevents you from making copies of the original. Or copies from copies. Or copies from copies from copies. Or copies from copies from copies from…
And of you’ve done any of the above. Yer fucked.
There is fair use, but I would think using the entire image with just a few changes is not going to qualify. The law doesn’t give rules, but guidelines, and guideline 1 is the
purpose, including a commercial pupose (and if he’s selling the pictures, it probably is). Guideline 3 is how big a portion of the work is used, and if it’s the entire work, fair use is hard to claim.
The thing is, someone has to sue the artist to get a judge to rule it’s an infringement.
All I know is, as a photographer, if someone took a photo of one of my prints and marketed it as their own, I’d sue the ever living pants off them.
With the caveat that if your print was a slavish copy of a public domain work, you don’t have a new copyright and would probably lose. See Bridgeman v. Corel.
Well, the four key areas of determination for Fair Use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
I’m no intellectual property lawyer, but i’m pretty confident that Richard Prince’s “appropriated” works fail on all four counts. If i were the original photographer, i’d be suing.
I hadn’t heard about Richard Prince before, and I fascinated by this controversy, so thanks to Bea Spoke for raising the question. I do hope some Dopers can shed some light or find more info, because I’d love to know. On the one hand, it seems very hard to believe that these ‘works of art’ could be on display, and could be traded, without someone somewhere having taken the trouble to check that it’s all legally okay. On the other hand, I find it really hard to believe that this is in any way legal.
One slight correction that may be of interest to some Dopers… there have been various references to works being ‘copyrighted’. If you produce original creative work then copyright automatically exists on that work unless and until you waive it. You don’t have to do anything, or go through any legal process, or stick the copyright symbol anywhere… the copyright exists automatically. It’s yours to do with as you wish, and you can of course sell it, trade it, waive it or grant someone a licence to reproduce your work in one way or another. Processes such as ‘asserting’ your copyright in one way or another may be desirable for one reason or another, but they do not materially affect the fact that you own the copyright on your own original work.
An interesting aspect in this case is that the original photographer has obviously come to some arrangement with the cancer stick company to use his photographic images, most probably a licence to use the images in specific ways, in specific markets, for a specified amount of time. So the actual copyright on the image that was published and that has now been copied by Prince may be owned by the cancer stick company, not the original photographer.
Of course this ‘work’ provides more fuel for the never-ending debates between those who like various aspects of modern and conceptual art, and those who see it all as worthless rubbish dreamed up by people with no artistic ability (or at least no artistic ability that paid off, so they came up with something ‘radical’). But that’s a separate debate, for those who want to have it (all over again).
I have a related copyright question for which it might not be worth starting a whole thread:
If I’m not mistaken, copyright to a photograph is generally owned by the photographer. I take a picture, I own the copyright. What if someone takes a picture of me, at my request, with my equipment? Like, let’s say I was with a famous person and wanted a photograph of the two of us and asked someone else to snap it. Does that person now own the copyright because he actually took the picture?
Assume that neither of us are professional photographers and the photo likely has no commercial value. What’s the opinion on this?
Right, but i think the reference to “copyrighted” works was in order to distinguish them from works in which copyright has expired. “Copyrighted” is a fairly common term of art in such discussions.
Also, while copyright exists in any creative work you produce, officially registering the copyright does allow you greater scope to reclaim damages in any suit you bring against and infringing party.
From the bottom of the OP’s linked article:
Paul S. Owens, “ARTICLE: IMPOUNDMENT PROCEDURES UNDER THE COPYRIGHT ACT: THE CONSTITUTIONAL INFIRMITIES,” 14 Hofstra L. Rev. 211 (1985)
Societe Civile Succession Richard Guino v. International Foundation for Anticancer
Drug Discovery, 460 F. Supp. 2d 1105; 2006 U.S. Dist. LEXIS 80766; 83 U.S.P.Q.2D (BNA) 1360 (D. Ariz. 2006) http://www.azd.uscourts.gov/azd/courtopinions.nsf/D6B4507E4BD89B9607257228006B56D0/$file/06-1540-30.pdf?openelement
Luckily for me, none of my prints are public domain, nor copies. 
How is it any different than me doing a screencapture of any photo off the internet and claiming that it’s a different “work of art”?
That guy is not only talentless, he’s also a copyright violator. I find it baffling that he would claim otherwise.