In reference to an interview by ARTINFO executive editor Andrew M. Goldstein, who spoke to photographer Patrick Cariou, about an artist named Richard Prince  (and Gagosian gallery) who was sued by Cariou for breach of copyright (the suit was successful and the photographer won damages):

French Photographer Patrick Cariou On His Copyright Suit Victory Against Richard Prince And Gagosian” on BLOUIN ArtInfo, 24 March 2011.

Appropriation vs. blatant theft

So the issue is really around artists who “appropriate” images and the fine, grey line between copyright infringement and “transformation” (ie the image is successfully added to, removed from, or altered so that the new idea is clear and distinct from the original idea).

It is easy to see how Prince was guilty-as-charged of copyright infringement; there just wasn’t (a) enough distinction between his “artwork” and Cariou’s original images and (b) Prince didn’t even give Cariou any credit for the photos and (c) btw, Prince didn’t ASK Cariou permission for use of the photos in the first place. All 41 photos!  And furthermore when Cariou raised a complaint, it seems that Prince and Gagosian still didn’t offer Cariou any recognition (or royalties) from the millions that Prince and Gagosian made from sales of Prince’s work.

Image courtesy Huffington Post and ArtInfo.
Image courtesy Huffington Post and ArtInfo.

Then to top it all off, Cariou was prevented from making profits from his photos, because his gallery didn’t want to do a show after the Gagosian show because “… it had already been done” and now, there’s confusion between Prince’s work and Cariou’s work… almost making Cariou look like the copy-cat!

Anyway… Prince/Gagosian lost the case but still Cariou has lost out.  He owns 41 (of his own) images and millions worth of “art” he can’t sell or do anything with…

What is truly original?

So that makes me think now about my own artwork…

Up to this point I’ve done “original” images, painting from my own photos (that I’ve taken), along with copying or sketching in my sketchbook (for learning purposes, mind) from found images, objects and paintings in galleries, etc.

Claude Monet, ‘beach at Trouville’, 1870, oil on canvas, at National Gallery, London.

The project I’m working on now though relates to painting on an iPad.  Here, the boundaries (between image appropriation and original ideas) are sometimes less clear.

Even when I am copying/sketching in my digital sketchbook using source materials from found images, or directly in front of the painting in the National Gallery, am I breaching copyright? Do the people that make Brushes software for the iPad have any claim on the images I make with that software?

Kelise Franclemont, study of Monet's 'the beach at Trouville', 2011, digital drawing (Brushes), in National Gallery.
Kelise Franclemont, study of Monet’s ‘the beach at Trouville’, 2011, digital drawing (iPad/Brushes), in National Gallery, which I copied from a postcard purchased from National Gallery giftshop.

I would need to consult a lawyer on the subject, but right now, I think the answer to both questions is “no”. Here’s the logic:

  • Fabriano, who makes artist pencils and paper have no more rights to the drawings I make with those pencils and papers, than Brushes has to my digital drawings; to my mind, wood-cased pencils are no different to electronic ones.
  • I have the rights (particularly for study purposes) to sketch, make copies, or drawings of sculptural objects and paintings directly from the items themselves, e.g., when in a gallery or museum.
  • as I understand it, I do *not* have the right to make a profit from or claim as my own work these copies of original works. I.e., I can’t copy a Monet painting (digitally or otherwise) and also claim (a) it’s Monet’s work and sell it for millions or (b) claim it is my idea and 100% my work, without crediting Monet.
  • I am less clear whether or not I can paint my own copy of Monet’s “Waterlillies” (with my own hands), print it on a t-shirt, and sell the t-shirts. I definitely can NOT take a photo of Monet’s “Water lilies” painting, and print it on t-shirts for sale (because typically, the artist, the artist’s beneficiaries and/or the gallery/museum the painting hangs in has the copyrights on the PHOTO. This is why you can’t take photos in many art galleries – because the museum stands to lose A LOT OF MONEY by not selling you the postcard instead).

Here’s where the idea of “transformation” comes in… if done properly, I could legitimately REFER TO or APPROPRIATE the IMAGE OF a Monet painting, if I can provide evidence that I’ve “transformed” the image sufficiently to show/illustrate/demonstrate my own idea. (Loads of artists have done this successfully — Warhol’s the grand-daddy of this, and then there’s Jeff Koons).

In a nutshell, nobody has copyrights to an IDEA but anybody can claim copyrights to how that idea is manifested.

Word to the wise (artists):  if your work has elements of appropriation, really think through the idea first and make the appropriation secondary to the intent of the work.

More links and stories

  • Read about Cariou vs Prince – Wikipedia – “714 F. 3d 694 (2d Cir. 2013) is a copyright case in the United States Court of Appeals for the Second Circuit, on the question of whether artist Richard Prince’s appropriation art treatment of Patrick Cariou’s photographs was a copyright infringement or a fair use.
  • Landmark Copyright Lawsuit Cariou v. Prince is Settled” by Brian Boucher in Art in America – 18 March 2014
Warhol’s soup cans. Image courtesy