What are the legal and ethical lines in the sand with regard to intellectual property and images? In your experience, what is appropriate appropriation?

The trouble is that I’m not so sure there’s lines in the sand so much as shades of gray. (Or perhaps the internet has helped us kick the sand up and blur the lines.) The prevalence of finding content on the internet has led to much more blatant and shameless appropriations than I imagine we’re used to in the past. (I’m sure they still happened, but now it’s a snap to publicize it.) The key in appropriation is being artful and respectful of the source– despite the fact that images and ideas are out there on display doesn’t mean that we own them, only that we can consume them. Still, there are some wonderful things being made with appropriated content– sampling and riffing on the established material can allow the material to act as a tool in creating something new.

Ethically, we should always clear these appropriations with the creator, or at least try. If it’s worth spending the time making something, it’s worth that little extra bit of time to ask and get the source’s blessing. In my experience though, it doesn’t happen often. Beyond that, the creator seeking to appropriate should seek to investigate, break it down, sample it and add onto it to make the element their own in some way; too often I see people appropriating the face of a source without asking, and without bothering to experiment and build something new off the bones of the original material. This is just lazy embellishment, and theft besides. The point is, if you like something enough to use it and perhaps profit from it, respect its heritage and its potential.

Monday, August 30 at 2:14pm

Meg makes a strong point. “Ask the source.” It certainly would avoid the problems that might ensure otherwise. And these are words to consider for many who are indeed borrowing from existing works. (My guess is that most artists would frown upon such things no matter how courteous the request.)

But in Fairey’s case, is taking a photographic pose and face of a distinctly public figure, and then “transfiguring” it as art, the same as borrowing intellectual property. Or, as many illustrators and designers have done throughout the 20th century, is it going to the same well, so to speak.

The issue of whether one pays for scrap or not is the concern here. Right? Or Wrong?

Monday, August 30 at 2:48pm

Asking permission seems obvious, but in this case it was shot by a known photographer via a photo agency. There are licensing issues beyond getting a signed release from the random photographer’s Flickr account.

As an agency-based assignment photographer with a focus on celebrity events, I’ve had quite a few of my images end up in the blogosphere, some with a credit and some without (which is still not acceptable, as the ability to “Right Click, Save As” isn’t a paid license for unlimited usage.)

Just because Andy Warhol got away with it doesn’t make it okay.

Tuesday, August 31 at 10:40pm

“Appropriate appropriation” occurs when the person appropriating brings something entirely new and significantly different to the image or creative property they happen to be appropriating. This may be done literally by changing the formal aspects of the image or by changing the connotation in which the work is viewed. The problem primarily comes about when said work is appropriated for the use in a monetarily profitable venture or one that is highly publicized like that of Fairey’s Obama image. Legally, I feel that Fairey is probably on the hook for this one. In this day and age, it is just as easy to find the originating source on such a highly publicized photo as it is to find the image itself in a quick search on flickr. Considering this image was disseminated to millions through the help of the Democratic party, one would have thought that the image would have gone through the correct protocol before leaving the grassroots level of Fairey’s studio. Ethically however, I feel that Fairey had every right to use the image. As an artist, I must come down on this side of the discussion. No matter what you think about the image, it does transform the original image to a point where it is no longer a work of photography and it has been removed from it’s original intent. If Fairey is an artist, then I would say it is his right to appropriate something that he wants to use to create a piece for commentary on say news media or politics in general. If Fairey is looked at as a graphic designer in the realm of mass production, these issues become a little more complicated. If this were a singular image or a small series of images, in this case let’s say they were paintings, I doubt we would be hearing much about this. The problem lies in the fact that the image was probably reproduced several million times over and at the end of the day, that means money for both the DNC and Fairey, either directly or indirectly. I’m sure that photographer and his agency think they should have a piece of that. Legally, they probably have a good case. Ethically, one has to know that Fairey’s significant transformation of that photo into an iconic graphic was what made that image, it could have been any of a thousand images of Obama.

My own art work has dealt with many of these same issues directly. In 2006 I embarked on a series of paintings and sculptures the questioned the idea of authenticity by creating reproductions of the work of Andy Warhol and then deliberately having them “Denied” by the Artist’s Authentication Board. By having the Board deny the works, the works completed the circle and became genuine works authored by myself. The art is within the concept of using a “denial” and very final procedure that very figuratively “kills” an artwork and it’s value, to actually “create” an artwork. I could have never done this series of work without first copying the work of Warhol exactly. In a more recent series I wanted to critique Contemporary Art Auction culture, so I used many of their own promotional materials to highlight aspects of their business. The ability to do this is essential to the creative process. Warhol certainly is one of the best examples of the use of appropriation from photographic material. Ask yourself this question, “Could they have made the work otherwise?”. In the case of Warhol, how would have he made many of those iconic works? If he hand painted Marilyn, certainly he would have had to base the work on some image of the movie star that he had seen somewhere in printed matter, so in that he would still be appropriating an existing image. Should we find the maker of the urinal Duchamp appropriated and pay them royalties every time the work sells at auction? Should I consult the maker or an axe that I may use in an artwork? Political correctness and over-legislation of imagery and content kills creativity. I close with a quote that pretty much sums up my stance.

“An idea is a point of departure and no more. As soon as you elaborate it, it becomes transformed by thought.”

Pablo Picasso

Wednesday, September 1 at 1:20am

Whether one is a copyright or copyleft advocate, ultimately the law will determine the boundaries of appropriation. I would like to propose that “ideas” must be protected even more than physical property. The idea behind the Obama photo was simple: depict the candidate for journalistic purposes. The idea behind the Obama poster was simple and different: depict the candidate in an heroic way for branding and promotion purposes. If you buy this distinction – and putting aside the rendering, which is indeed distinct and different – then the photographer’s “idea” was not borrowed. Instead the “public persona” of the candidate was used as all public visages are for another purpose. If the poster was used with the same idea – function or purpose – as the photograph, then a case could be made for inappropriate appropriation – or theft.

Wednesday, September 1 at 1:52pm