Derwent Art Prize 2014 - ineligible drawing wins first prize?

I have two beliefs about art competitions.

• The first is that if you put your work into an art competition with a significant money prize, then you are putting your work up for critique. I therefore feel able to comment on artwork in major art competitions in a way which I might not for normal open exhibitions.
• The second is that the work entered should be original and the artist should be able to assert copyright over their artwork. In other words the work should not be a derivative image.

Put simply - I have no time for people who copy other people's photographs.  There are far too many brilliant artists who create excellent original images to bother with those who copy the images selected and executed by others.

This evening I am very sad that the Derwent Art Prize 2014 has been won by somebody who has

• copied a photograph taken by another person.
• [update] submitted a work which was NOT completed in the last three years (based on the evidence from his website) 
• both of the above render it ineligible for the competition according to the rules of competition

I am particularly sad because

• the competition got off to a really great start last year with a truly original drawing in pencil winning the Derwent Art Prize 2013; and 
• there is some really outstanding work in this year's exhibition at the Mall Galleries - which I shall review tomorrow, when I will also highlight the other prizewinners.

Copyright and Originality

Below is the correspondence I had with the organisers, Parker Harris, after an artist contacted me with information about one of the drawings which had been selected.

This is my email dated 30th July 2014.

Dear Derwent Art Prize

An image which appears on your gallery for all works submitted in the Derwent Art Prize competition appears to be breaching copyright and has been reported to me.

I'm somewhat well known within the online art community for highlighting breaches of copyright in relation to competitions hence people tend to tell me rather than the organisers. This very often happens because the person raising the query is also an entrant in the same competition.

I highlight images which breach competition rules merely because it's so unfair to other entrants when images are selected which are either not original and/or breach copyright. My purpose is to encourage people to read the rules and to learn what they can and cannot do - and that sometimes includes the selection panel when they appear to be ignorant of the rules of the competition they are judging.

I'm absolutely not in the business of creating any embarrassment for competition organisers. My preference is to ask the competition organisers for their comments first - with respect to use of a copyright image - before commenting on my blog. I'd also add that the nature of the response tends to influence whether and/or how I comment.

Please would you comment on the eligibility of:

• this image http://www.derwent-artprize.com/looted-mine-1945-vermeer-artist’s-studio

• this image http://www.derwent-artprize.com/looted-salt-mine-1945-manet-winter-garden

the two photographs which have been copied by Brian Fay are included as part of the publicity material released by the Monument Men Foundation. Click the link to publicity material on this page and you will see the original http://www.monumentsmenfoundation.org/contact-us. (The images are also available on a number of other sites including the BBC and Pinterest Boards which have highlighted these publicity photos)

Does Brian Fay have permission of the US Government and/or the Board of Trustees of the Monuments Men Foundation to copy and reproduce these official photographs?

Is the Derwent Art Prize saying it's OK to

• copy photographs which are still within copyright that are found on the internet? 

• make copies of works despite the fact that the Derwent Art Prize rules make it clear that copies of works are ineligible? 

What do you propose to do about these selected images?

If the Derwent Art Prize prefers not to comment, please note I will be commenting on the similarity of images which are in plain view on the Internet and reviewing these within the context of the competition rules.

I'd also add that, in my experience, these matters are very rarely spotted by only one person.

Regards
Katherine Tyrrell

Below is the reply I received from the competition organisers, also dated 30th July 2014.

Dear Katherine

Thank you for the email. This is something we had previously spotted and looked into. The original photograph images are actually all within the public domain, therefore are not protected by copyright as are most images taken or created by the US government and they have been used on many websites as such (see screenshot below).

As the image is not protected by copyright, and is not a copy of an artwork but an image of a narrative, the work does not breach any of the rules or guidelines and we are delighted to have it in the exhibition.

Best wishes,
Rachael
Rachael Chesterman
Project Manager
Parker Harris Partnership

I decided to wait and see what happened with respect to the drawing in question and would only highlight the issues raised if the work won a prize - as indeed it has done.

The letter from Parker Harris clarifies the situation on copyright and I accept that explanation.

INADMISSIBLE WORKS
Work that does not fit within the Conditions of Entry will not be admissible and will not be considered for exhibition.  The following are also inadmissible:

• Copies of works

Derwent Art Prize - Conditions of Entry

However I completely disagree with the interpretation which suggests the work is not a copy and suggests it is "an image of a narrative".

I don't recall that particular argument ever having held sway in any of the courts which have dealt with issues of what constitutes a copy.

In fact I googled "an image of a narrative" and came up with precisely one result on Google - which happened to be a commentary on Jane Austen's 'Persuasion'!

So what we have here is a notion - "an image of a narrative" - which does not exist in any form on the Internet.

So what exactly is "an image of a narrative"? Your guess is as probably as good as mine!

More to the point, if asked whether it was "a copy" or an "an image of a narrative", I am also pretty sure what most people would say! You can make that decision yourself if you view the two images below - the drawing and the photograph - plus you can also add your comments below. Maybe one of you will be able to explain "an image of a narrative" and why this is not "a copy".

In this case, I am very much of the view that the winning entry copies both (1) a photograph and (2) an original work of art. Neither may be still in copyright - however this does not negate the fact that this is a copy - and, as such, in my view 

• this prizewinning entry is inadmissible, 
• should not have been selected for exhibition and 
• should not have won any prize.

I have no idea whether the judges were made aware that the artwork had copied a photograph before, during or after the judging process.  I spoke with the Chair of the judges this evening before the prize giving and it was clear she was aware it was based on a photograph.

This is the artwork which won the £5,000 First Prize

Looted Salt Mine 1945 Manet in the Winter Garden (pencil on paper)
by Brian Fay 

This is the photograph which was copied.

Manet in Mine - photograph from the Monuments Men Foundation

You make your mind up whether you think this is 

• fair to all the artists who entered the competition and paid their entry fees in good faith (i.e. that all the rules would be applied consistently to all the entries)
• fair to all the artists whose work was selected for the exhibition 
• fair to the sponsors who (I'm guessing) obviously want a competition which maintains high standards and is not brought into disrepute in any way.

UPDATE: Date of artwork

One of the artists, whose work was selected for the exhibition, has written to me and provided some additional and very relevant information.

This is a screenshot of the same drawing on the artist's website (click to see same size as website). You will note that:

• the annotation at the bottom clearly states that this work was completed in 2010. 
• the date of completion ALSO renders it ineligible for selection for the exhibition and a prize.

The drawing on the artist's website is dated 2010

Note:  The (undated) Terms and Conditions of Entry - published in February - state the following

All entered work must have been completed within the last 3 years. 

It's common for other art competitions to stipulate something along the lines of "All artwork complete before [specific date] is ineligible for entry".  It's normally two or three years prior to the deadline. (The same date procedure is usually applied to any age qualification for the artist).

There is no date in these terms and conditions other than as stated above.

However if we extrapolate, based on normal convention, a stateent which did stipulate a date for works needing to be completed in the last three years, prior to the deadline, would state "all works must have been completed AFTER 9th June 2011".

That clearly renders this prizewinning artwork inadmissible on ANOTHER rule of this art competition.

UPDATE: What should happen next?

Given the compounding factor related to the date of the artwork - as exhibited on the artist's own website - I feel the organisers have no choice but to consult with Derwent as to the best way forward.

Competition organisers must obviously rely on an artist's assertion that they comply with all the rules of the competition. The quid pro quo is that if it emerges that the artist has NOT complied with all the rules of the competition, then he or she must accept that there may well be consequences.

However, in order to maintain the integrity of an art competition - and keep faith with all the entrants - both organisers and judges must also be vigilant as to compliance with all the rules of the competition and address issues which arise before and after decisions have been made about prizes.

There is precedent. In other open exhibitions and art competitions, the consequences for an artist have included the return of the prize and the repayment of the prize money (if awarded).  See

• Art competitions and copyright - the AWS Gold Medal debate 8 September 2008
• Statement on AWS Gold Medal controversy from President 22 September 2008
• American Watercolor Society Gold Medal - the final verdict on Sheryl Luxenburg 3 March 2009 

My personal view is that the prize should be withdrawn. Or maybe the artist will do the decent thing and withdraw his work from the competition and not accept the prize?

Derwent and future competitions

Finally, can I say I have no wish whatsoever to embarrass Derwent with this post.

I've always been a huge supporter of Derwent and all they do for pencil art - as they well know. I had a word this evening with representatives of Derwent and told them that I intended to write this post. They made it clear to me that while they sponsor the competition they play no part in how it is conducted.

I suggested to Derwent that they might wish to insist on a couple of changes for the rules of the Derwent Art Competition 2015 in order to comply with the standards and wording of other major art competitions.

These are:

• all works must be the original work of the artist i.e. the artwork must not be copied and the artist must be able to assert copyright (i.e. no copies and no derivative works allowed)
• all works must be framed.

[UPDATE 16 September 2014] To this I would now add two further recommendations:

• all terms and conditions must clearly state a specific date for the purposes of clarifying the age of the work (e.g. all works completed prior to [date] are ineligible for the competition)
• all publication or exhibition of a completed work prior to this date automatically renders it ineligible for the competition.

[UPDATE: I'm also conscious that some people are confused as to who exactly determined this work won first prize.  Derwent played no part in the judging of the works or the award of the prizes. You can see the names of the Judges and find out who they are in my blog post The 2nd Derwent Art Prize - Call for Entries]

Derivative work in UK copyright law

On the topic of derivative works, probably the most well known in recent years is the Shepherd Fairey case re the Barrack Obama "Hope" poster.

More particularly in relation to the UK what follows is a summary of the position in relation to derivative works. The following quotations come from Copyright issues for derivative works fact sheet from the UK Copyright Service.

1. What is a derivative work?
   A derivative work is a work that is based on (derived from) another work; for example a painting based on a photograph, a collage, a musical work based on an existing piece or samples, a screenplay based on a book.
2. Making a derivative work
1. Permission.
   Legally only the copyright owner has the right to authorise adaptations and reproductions of their work - this includes the making of a derivative work.
   The copyright owner is generally the creator of the original work, or it may be someone the creator has given copyright to (i.e. next of kin).
   Unless you are the copyright owner of the original work, you will probably need the permission of the copyright owner before making a derivative work.
2. Exceptions that do not require permission
• If copyright has expired (under UK law this typically means the author died over 70 years ago), the work will be in the public domain, and may be used as a basis for a derivative work without permission.
3. Copyright in the derivative work
   Provided it is significantly different to the original work the derivative work will be subject to copyright in its own right, and you will own copyright to the new content you have created as a result of your actions. Bear in mind that to be subject to copyright the creation of the derivative work must itself be an original work of skill, labour and judgement; minor alterations that do not substantially alter the original would not qualify.

The key words are "significantly different" - and a change of media does not satisfy this requirement.