Tag: plagiarism

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Forgery, plagiarism, and transformative use: the money machine of art

Early light on Moon Lake, 9X12, oil on archival canvasboard, $696 includes shipping and handling in continental US.

Last month I wrote that I was too idiosyncratic to be a forger. It requires sublimating your own creativity to another’s vision. What’s the fun in that? You might as well be an engineer; it pays better.

US copyright law says you can’t copy someone else’s work, except under limited circumstances. One of these is ‘transformative use,’ which has a bit of an “I’ll know it when I see it” definition.

Eastern Manitoba River, 6X8, oil on archival canvasboard, $348 includes shipping and handling in continental US.

Transformative use could mean:

  • Parody: Creating a work that imitates or mocks the style or content of the original copyrighted material for humorous or satirical effect.
  • Commentary or criticism: Using copyrighted material as a basis for commentary, critique, or analysis, where the new work adds new insights or perspectives.
  • Educational or informational purposes: Incorporating copyrighted material into educational or informational content to illustrate a point or convey information.
  • Remixes or mashups: Combining multiple copyrighted works to create a new, original work with a different meaning or expression.

That last one is where the visual artist has some latitude. For example, I might want to put an 18′ Grumman aluminum canoe in a painting and am too lazy to walk out to the back yard and photograph my own. If it’s a detail in an otherwise completely different work, I can reference someone else’s photograph. I cannot, however, copy Dorothea Lange’s dustbowl photographs verbatim and expect to get away with it. Of course, there’s a lot of grey area in between these two examples.

Brooding Skies, 8X10, oil on archival canvasboard, $522

Transformative use is judged on a case-by-case basis, which is why famous artists like Jeff Koons keep stealing from less-well-known ones. They can better afford protracted legal cases.

British artist Damien Hirst also has a long rap sheet when it comes to plagiarism, but he may be the first artist in history to be accused of forging his own work.

Among several examples reported by the Guardian is an $8 million, 13-foot tiger shark split into three sections and suspended in formaldehyde at the Palm Hotel and Resort in Las Vegas. It was dated 1999, but was made in 2017.

The works were first shown at a 2017 Hirst solo show called Visual Candy and Natural History, and dated “from the early to mid-1990s.”

“Formaldehyde works are conceptual artworks and the date Damien Hirst assigns to them is the date of the conception of the work,” Hirst’s company said.

The artist’s lawyers added that “the dating of artworks, and particularly conceptual artworks, is not controlled by any industry standard. Artists are perfectly entitled to be (and often are) inconsistent in their dating of works.”

Cold Spring Day, 11X14, $869 includes shipping and handling in continental US.

A more prosaic explanation is that Hirst’s reputation is in decline. More recent works do not sell at the prices he commanded when he was one of the fresh new Bad Boys of British Art. By backdating his catalog, he could hope to make more money.

Formaldehyde slows down but doesn’t stop decay. Some of Hirst’s earlier pieces are rotting, or the original specimens have been replaced. What a revolting job for the conservators, not to mention the gallery assistants who did the work in the first place. Formaldehyde is a highly toxic systemic poison that is a severe respiratory and skin irritant and can cause burns, dizziness or suffocation. If you’re inclined to deface artwork for political or environmental reasons, Hirst’s suspended animals seem a far better target than an irreplaceable oil painting.

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Plagiarism

Spruce and pine from Barnum Brook Trail, Carol Douglas, 12X16, private collection. This is a well-known scene painted by many artists. It would be difficult to prove ownership of a reference photo.

A well-known western painter sent me three images: her own reference photo, her watercolor, and a copy made by another artist. The copier had posted it on social media, cheerfully outlining her process with no hint of credit to the original artist. “She even copied my mistakes!” sputtered my correspondent.

Luckily, this resolved without lawyers. When challenged, the infringer agreed to take the work down and never sell it. That’s the only reason I’m not calling her out here.

Lake Tear of the Clouds (Headwaters of the Hudson), 30X40, Carol L. Douglas, private collection. I painted this picture twice.

Is it OK to copy artwork?

My correspondent was right in not asking the infringer to destroy the work. It’s legal to copy other work. It is illegal to sell, publicize or publish that copy without permission from the copyright owner.

Many artists over time have copied others’ work, including Vincent van Gogh in his time in the asylum. This is a way to deeply engage with the original artist’s technique and intentions. Many teachers-including me-set our students to copying masterpieces. But this is a learning exercise only, and the work is never intended to be shown or sold, even when the original is out of copyright.

Young spruce and pines, 6X8, Carol L. Douglas, private collection. I painted this twice because I lost the first iteration.

Pieter Bruegel the Elder churned out several copies of his own Massacre of the Innocents. It must have been very popular because his son made more copies of it. That made perfect sense at a time when the only way to reproduce a painting was to copy it brushstroke by brushstroke.

But that was then, and this is now. Copyright in the US is strict and enforceable. It’s there to protect creators, but, equally, you don’t want to get on the wrong side of it.

What is copyright?

Copyright is an inherent state that occurs at the time the work was created; registering it just provides one form of legal evidence that you created the work. For visual artists, registering every painting or photograph would be absurdly expensive and unnecessary; you would only do it if you needed to sue someone.

That means any photo or illustration you find in books, magazines, newspapers, and even on the internet is automatically protected by copyright law.

Sunset near Clark Island, 8X10, Carol L. Douglas, available through the Red Barn Gallery, Port Clyde. I’ve painted this scene multiple times, but always from life.

Protect yourself

The best way around this is to take your own reference photos. That’s important for more reasons than just copyright, starting with the greatly-expanded understanding we all have of places we’ve been to and people we’ve known.

Sometimes that’s impossible. You’re on the other side of the country or the boat has sunk. If a client sends you their own photo for a painting, you can presume permission. If it’s not their own photo, do some investigating. “He said he got the photo from his cousin,” is no defense.

If you use a third-party’s photo, protect yourself by obtaining written permission from the photographer.

You can use photos that are in the public domain. Copyright expires when the original creator has been dead for more than seventy years. Just google “public domain images” and the word for which you’re searching, like “clouds” or “Grand Canyon.” Creative Commons is an excellent source for public-domain images.

What if someone copies your work?

What if it’s your work being copied without permission? My correspondent contacted the infringer and asked her to withdraw the painting from the marketplace. She could have done this more formally through a cease and desist letter, but it turns out that she’d done all that was necessary.

If the infringer doesn’t agree to take the work down, it’s time to call a lawyer. In the US, copyright holders can sue content infringers for damages. Hopefully, it will never go that far, but it’s nice to know you have that tool at your disposal.

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