Forum – Whose Image is it Anyway?

One of the Disputed Artworks in the case Prince vs Cariou (Boucher et al., 2019)

During this week 2, we were challenged to discuss copyright issues. “There have been some notable art copyright cases in recent decades. One of the most significant is French photographer Patrick Cariou’s claim, suing Richard Prince and his gallery, Gagosian, for copyright infringement.

Ethics vs Law (Do we still care?)

I share my responses as I believe they reflect on my thinking. and growth during the process:

There are ethics and laws. Not all laws are ethical. I am a South African, and I experienced that personally.

I don’t need to be a lawyer to know that taking someone’s work that cost him years of effort and research to create and without his consent then muck it up for purposes of art,  is blatantly unethical. It does not matter if the law says otherwise. Its common sense. But that is my emotional response.

Judgement under American Law

However, ethics weren’t challenged but the American Copyright Law. To provide and evaluate this case one needs to do some research into copyright law and the context. Landmark decisions are exactly that. A point in time in law where a boundary is challenged and crossed.

According to a study done by Suzy Frankel, Professor of Law, Victoria University of Wellington ” Copyright law internationally is awash with legal and practical problems and divergent political views (Frankel, 2015) .” Copyright is territorial, not international. And there is a need to find a durable solution.

Two sections in American copyright Law Apply.

“104. Subject matter of copyright: National origin” which states:

(b) Published Works.—The works specified by sections 102 and 103, when published, are subject to protection under this title if—

(1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled;

(2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or ”

This part was not contested.

“107. Limitations on exclusive rights: Fair use which states

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

(US Copyright Office, 2019) .”

Which means both are protected under American Law. And maybe challenged under section 107 (3)

So if Patrick Cariou wished to have protection in America, he need not have to register copyright in America and may use the laws there when a breach arises. It needs to be done under that Jurisdiction as the breach occurred on American Soil. American Copyright Law only applies to America and its laws apply there.

The additional purpose of the Fair Use criteria provides a counterbalance to the 1st Amendment of the American Constitution, that of Free Speech. The Office of General Counsel at Harvard University notes that the five “Fair Use” tests are “purposely broad to prevent a rigid application that would potentially stifle creativity” (Harvard, 2019).

“Courts have taken both a quantitative and a qualitative approach in assessing the impact on the fair use analysis of the amount and substantially of the portion used.  What percentage of the original work has been used?  There are no bright lines, but the higher the percentage, the more likely this factor is to weigh against fair use.

 

Even if the percentage is fairly small, however, if the material used is qualitatively very important, this factor may weigh against fair use (Harvard, 2019). ”

It’s important to note that American Law is about the precedence and it is little wonder that it is the Andy Warhol foundation that fought for the American artist as Andy has done this without challenge in the past. They tout precedence in the form of Art history.

‘The district court determined that Prince’s “taking was substantially greater than necessary.” We are not clear as to how the district court could arrive at such a conclusion. In any event, the law does not require that the secondary artist may take no more than is necessary. We consider not only the quantity of the materials taken but
also “their quality and importance” to the original work. […] The secondary use “must be to `conjure up’ at least enough of the original” to fulfil its transformative purpose. ] Prince used key portions of certain of Cariou’s photographs. In doing that,
however, we determine that in twenty-five of his artworks, Prince transformed those photographs into something new and different and, as a result, this factor weighs heavily in Prince’s favour (Patrick CARIOU v. Richard PRINCE, 2013) .’

Initially, I did not agree with the ruling only taking the quantitative side in consideration. While it is clear the copyright was infringed on quantitative bases the ruling was made on a qualitative basis. In this, I need to concur. Prince completely changed the intent of the photographs. But as discussed under in my blog on The Rights of subjects in documentary work (Nagel, 2019). This is something that was not challenged in this case. it is the effect of these minor changes that infuriated me and possibly Cariou. The reason he won the case… Is this really fair use really fair in this case?

But I learned a lot critically analyzing this case. but this only applies to American law.

How would other Countries deal with this?

But this poses another question. How would this case have been adjudicated in other countries? I concluded a brief investigation on how copyright laws of other countries would have dealt with the issue.

A view of the Copyright and Laws and Regulations 2019 for different counties is accessible at https://iclg.com/practice-areas/copyright-laws-and-regulations .

Starting with Cariou ‘s home country.

In France, the French court needs to determine if a work is an original on a case by case basis. France calls on moral law in these cases. Copyright needs not to be registered. Copyright exists merely if something is created. these rights are split between patrimonial or moral right. Patrimonial rights cover the artwork for 70 Years after was published. Moral rights have no time limit.

The moral law states that the original author has the legal right to protect the integrity of the work…and the right to oppose any modification or distortion of the work.  So Prince would have lost, even after the authors’ death. Prince 1- Cariou 1.

Britain Copyright introduces fair dealing (Copyrightservice.co.uk, 2019).

Fair dealing is a term used to describe acts which are permitted to a certain degree without infringing the work, these acts are:

  • Private and research study purposes.
  • Performance, copies or lending for educational purposes.
  • Criticism and news reporting.
  • Incidental inclusion.
  • Copies and lending by librarians.
  • Caricature, parody or pastiche. (clear description available at https://portal.solent.ac.uk/library/help/copyright/caricature-parody-or-pastiche-copyright-exceptions.aspx (Links to an external site.)).
  • Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes.
  • Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as time-shifting.
  • Producing a back up copy for the personal use of a computer program.

In Britain making a Caricature, parody or Pastiche of a BAME subject would not have been approved. Prince 1- Cariou 2.

In South Africa, we don’t have a fair use policy as mentioned in Amy’s and other posts.  You require permission to adapt an original piece of art which includes photographs (Myburgh, 2019). A gallery can’t even use an image of art to sell the item without the distinct permission of the copyright owner. Prince 1-Cariou -3

I question whether the problem is that, unlike South Africa, that documentary photographs, in general, is still not seen as art in itself. That it is relegated to a lower purpose. To be used and abused? The precedence so important in American law is made! Would they allow fine art classics to be vandalised in the same way? Probably.

So in conclusion: It is what is deemed sufficiently transformational that is tested in this case. So due to the precedence, I can make a couple of scratches on the eyes of the subject and add another authors photograph of anything and it is deemed as sufficiently transformational.

What bothers me is that Patrick had no moral recourse under American law. Something he would have had in his own country. Under American law, the author loses all moral rights to the use of the picture. It is no wonder documentary photographers find it more difficult to find willing subjects in America. The moral obligation that Caroui had was to protect the dignity of a private subject has been waved in lieu of a joke, parody or caricature etc. This subject of his photograph is not a politician or celebrity that puts him/herself up to public ridicule. For me, it equates to the display as Sarah Baartmans body as a museum display in Paris (Smith, 2019). This is disrespectful. It is a human right abuse. Imagine if you were commissioned to do work for a bride and an American artist decide to do the present her in a degrading fashion. How will you be able to explain this to your customer?  Does it make any difference that this is an indigenous person that doesn’t live in America and probably cannot afford to sue the hell out of the artist? Rastafari is religious individuals and takes their simplicity and way of life very seriously. Not merely stoners and rock artists as the artist portrait. (Added 01/10/2019) I know I would offend if I really have to say how I feel. I may have already…I lived in a country for many years where human rights were abused and I remained silent. People tend to hide behind unjust LAW’s to abuse the rights of others. It was never the intent of the law. In South Africa, this was corrected where Human Rights were embedded into our constitution and human rights charters, which takes precedence over any interpretation of the LAW that transgresses that. We have a specialised court that deals with those matters. You are free to publish in South Africa and don’t need to register copyright and own your copyright unless you wave it, and I believe you will get a fair trial. I know this will be tested here in the future. It makes me rethink how I make available my work and who I collaborate with to ensure that American Vandals/Artists cannot get hold of my work.  David Goldblatt, a world-renowned documentary photographer, removed his work archive from the University in Cape town in protest to students vandalising imperialist art and being able to protect the freedom of expression and moved his archive for protection at Yale. How safe is his work really? Incidentally, he claimed that he was an artisan and disliked  Artist. I wonder why? (Herman, 2017)

Our tutor Clare Bottomley challenged us to look at another interesting case involving an iconic photograph. She asked whether the feeling around fair usage change when the image is so well known it becomes part of our collective consciousness?

The photograph by Graeme Williams taken in Thokoza township, Johannesburg, in 1991. Police watch an ANC rally while children taunt them. Photograph: Graeme William (McGreal, 2019)

 

The photo was taken at the Johannesburg art fair by Graeme Williams of Hank Willis Thomas’s version of Williams’s colour original. Photograph: Graeme Williams (McGreal, 2019)

I thought this is a better case to argue… Wiliams is making an artistic point. He may win based on transformation in an American court but at least he did a better job than Prince. If he labelled or documented his protest up-front I would have some sympathy for his purpose, but he didn’t. He was caught claiming another photographers work as his own and looks like merely trying to get out of trouble. Alternatively, he could have argued that he significantly altered the photograph but require him to present it to the courts. He basically admitted that he stole it and he feels it’s ok because he did not believe it was previously stolen and did not belong to the owner. I wonder if American law will uphold that. He even asks the artist to destroy the evidence.

Copyright Law court expenses are huge. My cynical response would be to simply copy what he did using photoshop, it may only take a day at most and give it to the gallery to sell at the same price and display it next to the other and use this conspiracy to my advantage… He did not change the meaning of the photograph and merely suggested how to change it. Challenge the gallery to sell the original with proof of ownership to a prospective client. If he wants to challenge the “copyright infringement he will then have to fight the lawsuit in South Africa using South African law.  He will not win the case. It would be interesting to me whether art buyers will buy the stolen one, or the original, merely because of the artist’s name. (And if not, provide my originals to him to sell my photographs for me under his own name – he can cut out the middle man, he is clearly a better salesman)

However, I pursued the matter further. Williams was not the only photographer against whom this infringement was done. Here is another.

artwork.png
Photographs by Hank Willis Thomas and Peter Mgubane (Patta, 2019)

He did the same with Peter Magubane’s. Thomas said he’s not so interested in the legal debate, and more interested in the moral debate. CBS News foreign correspondent Debora Patta said he raises the argument that Williams is a white photographer who took pictures of black South African kids without their permission. He wanted to make it a racist debate. This is the artist version of Click bate.  Why then rob Peter Mugubane?  According to Patta both South Africans that risked the lives to get the story.

The article states: “South African copyright laws are clear: You may not reproduce or alter an original photograph without the owner’s permission. While U.S. laws may not be as stringent, copyright lawyers told CBS News the original works are clearly identifiable in the works by Thomas, which amounts to copyright infringement (Patta, 2019) .”

I like Hank Willis’s other artwork though.

Reference

Frankel, S. (2015). The International Copyright Problem and Durable Solutions. [ebook] Wellington. Available at: https://www.law.columbia.edu/sites/default/files/microsites/kernochan/09-international-copyright-problem-durable-solutions.pdf [Accessed 15 Oct. 2019].

Patrick CARIOU v. Richard PRINCE. (2013). [ebook] United States Court of Appeals. Available at: https://cyber.harvard.edu/people/tfisher/cx/2013_Cariou.pdf [Accessed 15 Oct. 2019].

Havard (2019). Copyright and Fair Use. [online] Available at: https://ogc.harvard.edu/pages/copyright-and-fair-use [Accessed 15 Oct. 2019].

US Copyright Office (2019). Chapter 1 – Circular 92 | U.S. Copyright Office. [online] Copyright.gov. Available at: https://www.copyright.gov/title17/92chap1.html#104 [Accessed 15 Oct. 2019].

Nagel, A. (2019). Rights of Subjects in Documentary work. [online] André Nagel’s Critical Research Journal. Available at: https://ancrj.blog/2019/10/13/rights-of-subjects-in-documentary-work/ [Accessed 15 Oct. 2019].

Phil, S. (2019). Copyright 2019 | Laws and Regulations | ICLG. [online] International Comparative Legal Guides International Business Reports. Available at: https://iclg.com/practice-areas/copyright-laws-and-regulations [Accessed 15 Oct. 2019].

McGreal, C. (2019). Plagiarism or remixing? South African photographer accuses artist of theft. [online] the Guardian. Available at: https://www.theguardian.com/artanddesign/2018/sep/13/graeme-williams-hank-willis-thomas-photograph [Accessed 15 Oct. 2019].

Patta, D. (2019). U.S. artist accused of stealing iconic images from South African photographers. [online] Cbsnews.com. Available at: https://www.cbsnews.com/news/artist-hank-willis-thomas-accused-of-stealing-from-south-african-photographers-peter-magubane-graeme-williams/ [Accessed 15 Oct. 2019].

Herman, P. (2017). UCT defends stance on artistic freedom after Goldblatt pulls out. [online] News24.com. Available at: https://www.news24.com/SouthAfrica/News/uct-defends-stance-on-artistic-freedom-after-goldblatt-pulls-out-20170304roadband.co.za/forum/threads/uct-defends-stance-on-artistic-freedom-after-goldblatt-pulls-out.875530/ [Accessed 15 Oct. 2019].

Myburgh, A. (2019). Copyright – What it means for Visual Artists. [ebook] Johannesburg, p.3. Available at: http://www.act.org.za/assets/files/pdfs/Copyright%20-%20What%20it%20means%20for%20Visual%20Artists.pdf [Accessed 15 Oct. 2019].

Smith, A. (2019). Saartjie Sarah Baartman: 10 Astonishing Facts You Didn’t Know About Her. [online] BuzzSouthAfrica – Famous People, Celebrity Bios, Trendy News & Updates. Available at: https://buzzsouthafrica.com/sarah-baartman/ [Accessed 15 Oct. 2019].

Copyrightservice.co.uk. (2019). P-01: UK Copyright Law fact sheet. [online] Available at: https://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law [Accessed 15 Oct. 2019].

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