Tuesday, January 05, 2016

Copyright infringement - recent lawsuits involving artists

This week I came across a different approach to copyright infringement on an artist's website.

The message on the website didn't look to dissimilar to those you see on many websites with respect to who to contact if you want to reproduce the art.  What was different was that the link went straight to a firm of lawyers in the USA who specialised in copyright and trademark infringement. Suddenly one new that this particular artist meant business - in the literal sense.

Every so often I sit down and look to see what's emerged on the Internet with respect to copyright. This post identifies some useful articles about recent copyright infringements - plus how to find a lawyer who specialises in this type of law!

I'll be adding summaries of these cases to my new website. Much of what I have written previously about copyright and other useful articles can be found on the Copyright for Artists page on my new website Art Business Info. for Artists.

Copyright Infringement and Lawsuits involving Artists

There seem to be more and more prosecutions related to artists copying artists. This last month there have been four involving well known names.

It's interesting to read articles about the lawsuits relating to copyright infringement as these tend to reflect the current state of the marketplace and the legal world when it comes to what is considered a worthwhile case to fight.

Plus the outcomes for those who go to law - and get it wrong!

Litigant Mitchel Gray vs Jeff Koons

A lawsuit was filed in December 2015 on behalf of photographer Mitchel Gray.

It alleges that Jeff Koons used a New York photographer's commercial photo taken in 1986 for an advertisement in two editions and anArtists's Proof of I Could Go For Something Gordon’s (1986) without permission or compensation. Koons has a significant history in terms of copyright infringement litigation.

The auction house Phillips is also being sued because it handled the sale of the Artist's Proof in 2008 for $2.08 million.

Litigant Donald Graham vs Richard Prince and the Gagosian Gallery

The internationally renowned photographer Donald Graham is suing Richard Prince (who has previously been sued by photographers) for copyright infringement. The claim is that he reproduced his photo without seeking permission. It's not as if it was difficult to find out how to contact Mr Graham.

the contact page on Donald Graham's website
The most recent article in ArtNew News has three experts opining as to why this is a more significant case than the Cariou vs. Prince case. Indications are that relevant matters will relate to:
  • the market impact of the infringement
  • new work that includes significant commentary
  • the issue of transformation (there is very little change to the image - it's only cropped in a minor way - this is the original picture and this article includes a photograph of the Prince version of the image as part of an exhibition by Prince at the Gagosian Gallery)
It is a basic rule of copyright law that infringement is measured not by how much the alleged infringer added but by the amount of the copyrighted work that he took Stanford Law School professor Paul Goldstein
Interestingly I couldn't find the contested image  on either the Gagosian Gallery website (which contains none of the Instagram type images by Prince) or on Prince's website. I wonder why.....

The case follows on from the alternative response by an artist who also had a photograph appropriated - see Richard Prince v Suicide Girls in an Instagram price war - where the artist started to offer prints of her Instagram post for $90 after she found that Richard Prince had been offering them for $90,000 at the Frieze Art fair.

Litigant Ally Burguieres vs Taylor Swift

Ally Burguieres is a New Orleans-based American visual artist and writer. She wrote an open letter to the singer songwriter Taylor Swift and "called her out" for using her artwork without giving her a credit.

The case seems to revolve around a fan copying the artwork, adding some words and then posting it on social media and sending it to Ms Swift.  Then everything got rather messy......

It rather goes to show the problems of using other people's artwork to create artwork of your own.

It's also a fascinating counterpoint to the Richard Prince case where it would seem he has done the same thing as the fan. Except of course he is selling his works via the Gagosian Gallery for very large sums.

Litigant: The FBI (re. Kungfu Panda and Dreamworks) vs Jayme Gordon

This is a tale of what happens when an amateur artist brings a copyright lawsuit - but the facts presented in the claim don't actually stack up when examined!
It's alleged that an "amateur cartoonist" called Jayme Gordon committed charged with four counts of wire fraud and three counts of perjury (both offences carry possible jail sentences if he is found guilty) when he falsified claims of copyright infringement with a view to extracting a major settlement from Dreamworks, the film company responsible for Kungfu Panda. The original claim was dropped in 2013 when the lawyers working for DreamWorks demonstrated that artwork attached to the early documents associated with the claim had been traced from an earlier Disney coloring book first published in 1996. Subsequently the FBI got involved and the cartoonist now faces a possible $250,000 fine and five years in prison!

Associations of lawyers specialising in intellectual property

I've known a number of artists in the last ten years who have had to deal with major issues relating to people copying their work to derive an income.

At some point you might become one of those people and need a lawyer - and here are a couple of places you might look for one.
  • The Intellectual Property Lawyers Assocation (previously known as the Patent Solicitors Association) - Its members are law firms in England and Wales with an established practice and litigation record in intellectual property. (Note Intellectual property is the overarching terms which covers copyright, trademarks and patents)
  • American Intellectual Property Law Association - this association represents a wide and diverse spectrum of individuals. They work in private and corporate practice, in government service, and in the academic community. They are involved in all matters relating to intellectual property law including patent, trademark, copyright, trade secret, and unfair competition law.


Kelly Borsheim said...

Why do we even bother to give Jeff Koons any more press? I had no idea who he was until I started researching copyright law back when I worked for a photo lab... that case was 1991 and he was even then so cocky as to fear nothing. He actually told the court that he ripped off the copyright notice from the art postcard before he sent it to Italian wood-working artisans to carve six sculptures of the image, with such minor changes that when a friend of the photographer's saw one of the sculptures, he recognized his friend's idea made 3-d... all this because J. Koons is a "Conceptual artist" (apparently he really enjoy the Picasso quote about "great artists steal." ho-hum).
Obviously, Mr. Koons has no incentive to stop and receives no outside reason to do so. The courts should start making him pay off some of the national debt since he is clearly a pattern thug.
Several of my friends in NYC told me that they really want to apprentice for him... why? Business reasons.
He comes across as a nice, unassuming, and humble guy in video (most recently I saw his interview about a monstrosity of a "sculpture" he left littering Piazza Signoria in otherwise beautiful Florence, Italy). But what a self-serving vision of "our" culture "his" work is. Blech.
Can we really not just keep giving this guy air time?
And no, I do not really mean your post here... news is news... I am just disgusted that a repeatedly guilty verdict changes nothing for the rich and selfish. and boring.
ok, off my soap box now...

John Simlett said...

Really useful, thank you. I never knew if I should be outraged or flattered when Bath Pump Rooms 'lifted' my pen & ink work and used it on some of their stuff.

For originality in the copyright world: When I draw sailing ships I always draw in the signal flags; instead of the flags reading, say, "England expects..." my flags spell out my name! Difficult for the 'thief' to explain that away!

Katherine Tyrrell said...

@ John Simlett - love it - that is a really neat way of asserting ownership of an image! :) Not heard that before!

DA Best said...

Re Ally B: This sounds like a tempest in the wrong teapot. The image was taken down when Swift realized the mistake. Ms. B was offered compensation for its brief use. The artwork is no longer posted, so attribution isn't an issue. The real culprit is the "fan" who stole the artwork. Why isn't Ms. B going after him/her?

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