Thursday, March 24, 2011

Plagiarism or 'passing off' - it's got to stop

Two years ago I was originally going to call this post "Duane Derivatives".  At the time I decided to let the matter pass - but time passes and the 'passing off' which has been going on for a long time continues.

Hence this post today - which is all about the issues arising from plagiarism and copying the artwork of other people - including:
  • what is plagiarism
  • what is derivative work
  • when artists copying other artists is OK
  • how to avoid accusations of plagiarism
NOTE:  Please note this post has been revised since it was first published for two main reasons.  First, it's very apparent that some people are skim reading and then asserting elsewhere that this post says things which are simply not true.  In fact it was written very carefully to avoid such statements being made.  

I'm also concerned that people focus on the principles rather than an individual artist identified.  While I believe the artist and I would agree mistakes were made and remedies were implemented, the example appears to be distracting people from the vast majority of the content of this post.  

I've implemented a revision which has removed all but one of the images and some of the text and added some text of a more general nature.  The first 50 or so comments on this post were made when the images and the original content was still in place.

This post is about principles and practices and not individuals.

Beware - this is a very long post.  I suggest you go and get that cup of tea you've been waiting for before you start!  

Note:  If you have only skim read please refrain from commenting on it either here or elsewhere until you have reread it carefully.

What is plagiarism?

Here's a couple of definitions from authoritative sources of the meaning of plagiarism
the practice of taking someone else‘s work or ideas and passing them off as one’s own.
Oxford English Dictionary

the use of any source, published or unpublished, without proper acknowledgment
Princeton University
While the Merrian-Webster Online Dicitionary defines the verb "Plagiarize" as follows
Definition of PLAGIARIZE
transitive verb
: to steal and pass off (the ideas or words of another) as one's own : use (another's production) without crediting the source
intransitive verb
: to commit literary theft : present as new and original an idea or product derived from an existing source
It's interesting to note that the word is first noted in the early 17th century and comes from the Latin word plagiarius which means 'kidnapper' (This, in turn, comes from plagium 'a kidnapping' which, in turn comes the Greek word plagion.  The Romans were rather good at plagiarising Greek!)

Clearly plagiarism is a very serious issue.

Anybody who has been to university will know and understand what plagiarism means.  It's a very major issue when it comes to the presentation of original work for assessment.  This has become even more impotant of late within the context of a digital world where it is very easy to purloin without acknowledgement.

In the 'real life world', plagiarism should always be a major consideration for those presenting artwork for sale especially if they are generating a financial benefit from plagiarism.

While plagiarism is never acceptable its can sometimes be understandable.

Those who don't have the benefit of a college education may be less well schooled in why intellectual honesty demands that you acknowledge your sources. However that's an excuse which simply won't do for some individuals, especially those who ought to know better. 

What is derivative work?

Creating what's known as "derivative" work is also an aspect of creation and copying which is well known - but not always well undestood - even by professional artists.

The Oxford English Dictionary defines 'derivative' as
imitative of the work of another artist, writer, etc., and usually disapproved of for that reason
So a benchmark for artistic practice is that outright imitation is disapproved of.

However derivative work is generally considered to be within the bounds of what is reasonable when an artist borrows but creates something wholly new.

When it isn't reasonable, in particular where the level of differentiation is insignificant, the artist producing the derivative work stands to lose a significantly in terms of artwork, reputation and sometimes financially.

See for example the ruling reported yesterday in The Guardian Richard Prince ordered to destroy lucrative artwork in copyright breach.  Richard Prince specialises in what's known as "appropriation art" which has made him a lot of money.  I should imagine there will be rather fewer artists appropriating images from other artists in the future given that particular ruling.

Interestingly there is no copyright available for a derivative work
To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and formatting are not copyrightable.

Examples of Derivative Works

The following are examples of the many different types of derivative works:

• Television documentary (that contains archival footage and photographs)
• Motion picture (based on a play)
• Novel in English (a translation of a book originally published in Russian)
• Sound recording (CD in which two of the ten selections were previously published online)
• Sculpture (based on a drawing)
• Drawing (based on a photograph)
• Book of maps (based on public-domain maps with some new maps)
• Lithograph (based on a painting)
• Biography of John Doe (that contains journal entries and letters by John Doe)
• Drama about John Doe (based on the letters and journal entries of John Doe)
• Super Audio CD (in which all the tracks were previously released in a CD and have been remixed)
• Words and music (that include words from the Bible)
• Words and musical arrangement (arrangement is based on a piece by Bach)
• Musical arrangement (based on a work by Bach)

US Copyright Office Circular 14: Derivative Works (pdf file) 14th May 2010
It never enhances an artist's standing with his or her peers where there is insufficient differentiation between the old and the new.  People notice and draw their own conclusions - which often involve pejorative terms!

I'm thinking here of the comments made about some of Damien Hirst's "borrowing" of items created by other people where there was apparently far too little change between what was produced (and documented as produced) by one person and what subsequently appeared under the name of Hirst (a man who readily admits he didn't even paint "his" own spot paintings).

Virgin Mother by Damien Hirst
Here's a sketch I made of a work exhibited by Damien Hirst at the Summer Exhibition of the Royal Academy of Arts in 2006.  Hirst 'borrowed' the look and shape of the girl in Degas's Little Dancer bronzes and then created an enormous 35 foot tall 13.5 ton bronze statue of a girl who was clearly pregnant.  (See Sketching at the Royal Academy of Arts).

The other side provides an anatomical exposure of what's going on inside the body - which follows on from some of his earlier work which had also 'borrowed' rather more closely from existing artefacts - which in turn had generated a number of critical comments about his artistic practice.  However in this instance I'd argue this was a derivative work notwithstanding it was a fusion piece relating to two different sources.

In 2008 leading art critic Robert Hughes said Hirst was responsible for the decline in contemporary art. Hughes said Hirst's work was "tacky" and "absurd" in a 2008 TV documentary called The Mona Lisa Curse made by Hughes for Channel 4 in Britain. Hughes said it was "a little miracle" that the value of £5 million was put on Hirst's Virgin Mother (a 35 foot bronze statue), which was made by someone "with so little facility".
Wikipedia - Damien Hirst
It's worth noting that being a very famous and successful artist/media darling certainly does NOT exempt you from legal claims of plagiarism either (see Damien Hirst faces eight new claims of plagiarism  The Guardian 2010)

Why do people copy artwork?

Copying artwork is a well-established and lauded tradition within the art world - for educational purposes.  It's all part of the process of learning.  I'd go so far as to say it is actively promoted by very many artists who teach as a wonderful way of understanding HOW other artists created their work.  It gives you an insight into all sorts of aspects of work which you cannot grasp simply by looking at the work.

It's no coincidence that one of the copyright exemptions relating to "fair use" is related to educational use.

I've personally made copies of all sorts of artists - past and present - from Hockney to Chardin, from books and sat in front of their drawings and paintings in museums.  EVERY time I've done this I've learned something about the artist and also about how a painting came about.  The process of making art through copying imparts a much better understanding of how the artist approached their task.  It's certainly a practice I highly recommend to others.

Thus copying for personal educational use and development is absolutely fine.  In fact it's more than fine, it should and is positively encouraged.

However, that doesn't mean you can present your artwork to the public without clearly identifying the source of inspiration.  People normally use "After [name of the artist]" somewhere in the title - such as my piece which I posted about recently After Bonnard

So what's the difference between plagiarism and copying artwork?

So copying artwork for personal education purposes is OK and plagiarism is not.

What's the difference?  How can you avoid making a big mistake?  Here's a few suggestions about the ways in which they typically differ:

Copying to learn
Plagiarising to make money
Should always involve acknowledgement of sourcesAlmost always involves a failure to acknowledge sources and influences
No direct financial benefit as work is usually
  • not sold;
  • not entered in art competitions etc
Frequently associated with a desire to make money - whatever the cost
  • sells artwork which copies another artist's work
  • The extreme: the fraudster who also adds a copied signature to the painting or mimics the signature of another artist
Learning and process often shared online if work posted online 

Many professional artists cite the artists who influenced them
Plagiarist may share the process online - in different media - but often fails to acknowledge openly relevant influences

How do you avoid plagiarism?

Within the arts, it's recognised that nobody has a copyright over things found in the natural world  - such as eggs, oranges, clementines, oysters, asparagus etc - see my previous post You cannot copyright nature
  • you cannot copyright nature because you cannot claim ownership as the author
  • consequently you cannot corner the market in depicting a particular aspect of nature
  • you can only copyright those elements which are the artistic elements of the work - the aspects which you personally add to what nature created and make it distinctively your own work
  • you can only prevent other artists from copying the elements you added - ie those aspects which make your work unique
So, for example, it's perfectly OK to paint the same subject from nature as another painter - such as a pear or an orange or a fig. You just need to make it your own.

However if your subject matter or set-up has been influenced by another painter it's appropriate and indeed courteous to acknowledge the role played by another artist in stimulating that painting - particularly if the subject matter is unique to that artist.

Here's a couple of examples by Julian Merrow Smith (Postcard from Provence - started February 2005) to illustrate the point.  The first is a painting of a wrapped orange where he comments on his own personal experience but also pays tribute to the still life paintings of object and wrapping paper by Sadie ValeriObjects in wrapping paper are an age old subject for artists and there is absolutely no copyright on this topic.  Other painters who have gone before include painters such as William Joseph McCloskey (1859-1941).

Julian highlights in another piece Beurre d'Isigny how artists look at lots of art by other artists and often the influences for a particular work can become subliminal.  In his comments he references Vollon's Mound of Butter and Connor Walton's 2008 painting Butter.   Duane Keiser has also written about the Mound of Butter in the sort of blog post which is always guaranteed to influence people and stimulate them to have a go for themselves - in their own unique way of course!

Lovehearts is another good example of a different sort.  There are thousands of photographic images on the internet of this iconic sweet arranged in any number of different ways. Interestingly there are incredibly few paintings by even fewer artists.

More sweets - notice the positiong and colour scheme.
Duane's painting is on the left
Who else other than Duane creates a small painting from just one Loveheart - in the manner of Duane?  Good question.  Back in 2009 somebody supplied Duane with the answer - on the right (the image has been removed).

When an artist also manages to pull off the same trick with a completely different set of sweeties....and then yet another (image removed) - some very serious questions start to be asked - which is what happened back in 2009 when these images started to circulate on the Internet.

With subject matter which is in the public domain - the issue for an artist is how to paint the subject in a way which is unique to that artist.

Hence if one artist has made an iconic painting how can artists coming after create derivative work which is sufficiently different to justify its own copyright.  It's not surely enough just to move the subject slightly on the paper.

Why raise this issue now?
Sometimes the best policy is to let sleeping dogs lie, but I find myself unable to ignore such a flagrant violation of intellectual honesty. I'll have to think about this further.
Duane Keiser (email to me in June 2009)

First let's retrace some steps to provide context.

The start of the painting a day phenomenon

The painting a day phenomenon has been embraced by very many different artists who all sought to become as successful as some of the early practitioners.

On 3rd December 2004, Duane Keiser started his blog A Painting A Day.  I've never come across anybody doing what he did at an earlier date - and I've looked at ALL of the early painting-a-day/daily painters blogs.

Back in August 2006,  Duane explained - on his blog On painting - how he it all came about and also what he has learned as a result.  This is an excellent example of an artist sharing his learning with others.
You can also read some of the extensive national press and premier blog coverage he has received for his iniative in Articles and Interviews - Duane Keiser Press

The essential point to remember here is that
  • Painting small was not new.
  • Painting for the internet was not new.
  • Painting on a daily basis was not new.
  • However producing a small painting every day, regular as clock work and then posting it on a blog which people could subscribe to and selling artwork via eBay auctions where people who don't normally enter art galleries could bid for it was sheer genius!
I don't think anybody had appreciated until Duane started his painting-a-day blog:
  • how much art could be sold through the Internet 
  • how many small works could be sold via the Internet- and what sort of prices they might reach
  • how buying patterns and distribution channels could be changed forever
  • how the 'painting a day' phenomena might generate
    • so many new daily painters
    • so many new art collecrtors
  • how the internet could enable some artists to derive their income wholly through painting small works
It was a prime example of somebody recognising how it was possible to transform the interface between artist and collector such that both could benefit hugely.
  • the artist no longer had the price paid for his work topsliced by a gallery
  • the collector could buy more affordable works and also know that all the cash was going to the artist
  • the relationship between artist and collector became more intimate
  • creating small affordable works meant more people bought more works and became 'art collectors'
  • collectors who started with small paintings started to trade up and buy bigger works from the same artist
Very many of the painting a day followers have over the years repeatedly demonstrated their own personal intellectual honesty and acknowledged in writing Duane's pioneering role in creating what became, for many, a very stimulating experience and, for a few, the start of a lucrative career as an independent professional artist.

One example of an artist who has always been at pains to acknowledge Duane's role in his success is another early adopter of the painting a day mode of operation - Julian Merrow Smith.  This is the statement that has been on his Postcard from Provence website ever since 2005 when I first started following him.
The inspiration for the site came in 2004 with the arrival deep in the French countryside of a high-speed internet connection and Duane Keiser's pioneering a painting a day blog.
In December 2006, in my very first Making A Mark awards, the first Painting a Day Stickability Shield award was shared by Duane and Julian who received the following accolade
They posted a new painting a day on their blogs for well over a year and, although they're not now posting a new painting absolutely every day, they're still managing a lot more than most 'painting a day' blogs 
Is it plagiarism?

So much for the ground-breaking transformation engineered by Duane - so what about the plagiarism?

At the beginning, when painting a day was taking off, those who 'led the pack' realised that people were going to copy what they did.  After all if you've got a "recipe for success' which works it's not at all unusual if people try to do a "me too" and emulate you.  This was to be expected - and, of course, this is exactly what happened!

What many of us then saw from 2005 onwards was wholesale and superficial copying of motifs by a number of the PAD artists.  I know I personally saw many people trying to copy Duane and Julian and the other leading PAD artists with varying degrees of success.   Many seemed to think that it was easy to make money simply by repeating the use of the same motifs rather than paying attention to making their art unique to them.  How many of us can list the motifs we saw again and again and again and again.

How much was plagiarism and how much was derivative art and how much was legitimate?  Good question!

The humorous comments which were passed about people "doing a Duane" tended to dry up when somebody who was a much better painter was observed to be doing the same thing and sometimes doing it rather more than others.  In my experience, that was always when the "crossing the line" comments tended to start.

Rather than getting agitated by it, the early painting a day artists hoped that over time the artists who were 'copying' their ideas and styles would find their own feet and in due course start painting the subjects which were meaningful to them using an approach and style which is uniquely their own - their signature style if you like.  After all, that's what normally happens as artists practice, become more accomplished and mature.  Some would say that you become a painter when you stop producing derivative work.

However we must note that artists have always drawn inspiration from other artists
Good artists copy, great artists steal
Pablo Picasso
The important point - as Steve Jobs, Jeff Veen and this blogger have pointed out in Design Ideas: 'Good artists copy, great artists steal' is as follows
The key here is to be intentional with what we steal, to look at what the principles are behind the things that are successful, and steal those, rather than just a...superficial copy.
Jeff Veen
Duane has recently commented on Julian's own painting-a-day initiative as follows
Julian is a perfect example of that principle: he took the painting-a-day idea, used what he needed from it and made something completely new and, in many ways, better than the original idea. His auction system is ingenius and a massive improvement on eBay, his blog design is beautiful and clean, the book, and, of course, his work, is utterly his own.
Duane Keiser March 2011
I elaborate on this in the next post - Make your own art!

So what's the issue with the Duane Derivatives?

In 2009 Duane was sent a letter by an art collector which enclosed a montage of images of some of his paintings and ones by another artist which looked uncomfortably similar to his own work.
  • I've split up that montage and included it in this post (all but one of the images have now been removed)
  • Take a look again at the visual images in this post - the ones I've labelled Duane Derivatives - Is it Plagiarism?
  • In each painting the artwork on the left is by Duane Keiser.  
  • On the right the very similar artwork is by another artist.
Having considered the matter at some considerable length and after having shown these images to and consulted with a number of people (which included me) Duane concluded that, in general, they looked to other people very much like a copy of his work.  Accordingly he sent the artist an email. 

The artist did not directly respond to the email but did remove some of the images identified in the email (and previously seen in this post) from the artist's website and blog. 

Which, to my mind, rather answers the question "Is it plagiarism?"

Have lessons been learned?  Has the practice stopped? 

The thing is there are those who are very much of the opinion that Duane is NOT the only painter whose work has been copied by other artists or continues to be copied.

For example, content continues to be a major challenge for many painting a day artists

There are still far too many artists copying other artists in ways which lack originality.  Indeed if anything it's getting worse because people have grown used to seeing it and some seem to be accepting it as 'the norm' and 'OK'.

However sometimes we come to a point when a line needs to be drawn in the sand - such as when artists appear to need help to see more clearly a line they have been crossing on a regular basis.  If it helps them to become more mature in their professional practices and move on then that's all to the good.  Lessons can be learned at all ages.

It's very important to note that I am not in the business of hounding or flaming any individual artist with talent who fails to make wise choices at all times.  On the whole it's seems pointless to 'name and shame' since an artist either "gets it" or doesn't.  Many of us also learn from our mistakes.  Plus artists can also grow up, develop, become more self-reliant and move on and change to more professional practices.

The way forward

I don't know whether you agree that it's time to take a stand on plagiarism - whether you are an artist or an art collector.  It's a very contentious issue and I do readily acknowledge that not everybody will agree about what is and is not OK.

I have two suggestions for a way forward

First, in future, we can and should demonstrate our values through our actions.  We should:
  • only endorse artists who copy other artists when it's part of an educational learning process
  • applaud all those who have the intellectual honesty to identify their influences openly
  • value and invest in the unique and the original always and everywhere
  • value and encourage the artist who makes an effort to find their own individual style
Second, it seems useful to me, from an educational perspective, to have a discussion - with an educational intent - about what is and is not OK in relation to copying, plagiarism, imitation and derivative art.

Comments are welcome - even 'mea culpa ' ones by recovering copyholics! :)  However PLEASE note:
  • all comments are moderated - and I'm not at my desk all the time
  • if you have identified the artist highlighted in this post do NOT identify her by name - your comment will not be published.
This is also very definitely NOT an invitation to any sort of flame war!  Quite the opposite, this is an invitation to stand up for a more mature and responsible approach to the practice of making art. 

If you've got a constructive contribution to make please leave your comment below