# Artistic Freedom VS Copyright



## Jeff (May 31, 2011)

Hey friends - thought I would start a conversation about copyright and freedom of the artist. 

There are a few examples I know of - 
most recently the lawsuit by Glen Friedman VS Mr Braiwash.
Heres Friedmans photo









...and one of Mr Brainwash's subsequent works









yes clearly he was using the original image - BUT it is different no?
a Judge ruled against brainwash.

It is of particular interest to me, (perhaps for obvious reasons) but could Andy Warhol do his work today? apparently not. 

IE if I want- as an artist- to draw Led Zeppelin in 1976 - Im screwed. Because since a photographer owns all the images they pretty much own the IDEA of Led Zeppelin in 1976, no? 

Since Glen OWNS this image of Run DMC - I figure he has benefitted from not only his photographic skill, but also from every bit of work Reverend Run and his partners have done. 

Heres my choppy idea of a truly transformative work with Glen getting the glory he deserves. 
Glen DMC.










think the judge will like this one better? 
thoughts?


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## chanda95 (Apr 6, 2011)

It's different to a point but it is an obvious copy and I think that is where the problem lies with that particular piece. 

Did you know that Andy Warhol did, indeed, get sued for his use of somebody elses photographs and from that point on he was basically forced to take up photography and use his own photographs to work from? 

LOL Jeff. I had to laugh at your version. 

I do understand the frustration actually on both sides. From a photographer side (albeit amateur) I understand what it takes to get those photos and how proud the photographers can be of them..just like any piece of art. I understand that if somebody takes one of their photographs and copies it in a drawing yet doesn't give them credit or even monetary compensation (if the artist sells the piece) then that is a hard pill to swallow. I see no issues with the copyrighting of photography as the photographer SHOULD have the right to say what is done with their photograph. 

On the other hand..as an artist..I understand the frustration that goes along with not being able to draw really awesome photographs unless permission is given to do so. I think that is why so many artists turn to taking their own pictures in order to be able to draw what they want. 

I think the major issues are when artists copy photographs without permission and then not only promote their works but also make big profits off them and the photographer is left with nothing. Yes I understand the work that went into it on the artist side but on the flip side..the original photographer spent a lot of time and money so that the artist could profit off them. 

It's an ugly double edged sword.


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## TerryCurley (Jan 4, 2015)

You hit on the head Chanda.


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## Bushcraftonfire (Apr 22, 2015)

I'm not sure about all the ins and outs of the copyright laws.. But I think that this "rendering" is actually photomanipulation. I *could *be wrong.. but the "drawing" looks too perfect IMO. If this *is *photomanipulation.. then I would think it should not be aloud.

The best way IMO to get around the vast array of the copyright laws is to definitively change the work (I assume painting or drawing) that you are doing. For example.. turn the head some.. etc etc etc. I would NEVER use the exact pose as Mr Braiwash did. A person's face can't be copyrighted.. so had he done these individually.. and not with the clothing (I don't mean naked.. I mean the poses.. LOL!).. he probably wouldn't have had an issue. But it was the exact photograph.. 

Not So Smart!

D


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## Jeff (May 31, 2011)

I really think that the photographer walks a fine line between art and documentation.
An artist is different than a documentarian. Im beginning to think that if a person with a camera takes steps to set up his photo so that he/she is *creating something new -* that can clearly qualify as an art form. - However - if this is a matter of looking and clicking (especially of a public figure)- then we are doing documentation IMO. I didnt create Run DMC, I was just there with them to click a photo. I went to a concert and now own many images of Angus Young. (for sale)
- as it is, if I click a photo of a superstar in an airport, I now have COMPLETE CONTROL over any and all future images which may have derived from my click. 
...and Run DMC or Angus Young or their fans cant say dick. It belongs to me.

Now, all of this being said, I do believe that Bushcraftonfire is correct, in that its fairly clear that Brainwash traced over a projected image + these were on flyers he was handing out to promote his show. 
I believe this is one of the actual artworks ..









I personally would change the image simply because the transfer of my eye to my hand is not perfect, therefore it will be (somewhat) different, but...Still - is this not transformative? Even with using a projection - I think this is different enough to be valuable. He is making a comment about Run DMC...not Glen Friedmans photographic abilities.

I also have an issue because - Glen is making cheese for his cracker, not by virtue of his exceptional ability, but because the guys he clicked are extremely famous. 
Which to me is fine, but hey dont fricking SUE me just because I LIKE THEM TOO.

also there is the glaring fact that - even bereft of his lawsuit win over Brainwash, I imagine Glen didnt really suffer lost income, or harmed sales of his prints, and in fact BENEFITTED from Brainwash working from his photo and the subsequent publicity.


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## Jeff (May 31, 2011)

I have to say that the artist in me says "Oh, you say Im not supposed to draw that, eh?!! ...snicker snicker. " Now THATS some artistic motivation. 
+ Usually artists only get sued after they achieve tons of success and are over-rated and overpaid.

Therefore, please. Sue me.


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## TerryCurley (Jan 4, 2015)

All good points Jeff. Good conversation. I'm afraid I don't have anything to add pro or con to this copyright dilemma but it is interesting and thought provoking.


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## Jeff (May 31, 2011)

We tell the papparazzi that they have artistic freedom to sell images of stars, because thats the price of fame, the star is now in the public eye and has willfully given up some privileges of privacy that most people enjoy. 
You have agreed to be in the public domain. 

We give these guys so much artistic freedom that somehow its not only legal to photograph someone without their permission, its also legal to literally stalk them hoping to get that click when they are at their most vulnerable.
So why on earth does the public domain and artistic freedom suddenly end at Gus's smartphone camera? 

Deniro doesnt own the image of himself that Gus just took, AND somehow Gus can sue me if I draw Robert from his camera phone photo. Thats BS.


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## Jeff (May 31, 2011)

_Patterson and Lindberg described the public domain not as a "territory", but rather as a concept: "[T]here are certain materials – the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers – `not subject to private ownership. *The materials that compose our cultural heritage must be free for all living to use* no less than matter necessary for biological survival."__[_
http://en.wikipedia.org/wiki/Public_domain


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## Jeff (May 31, 2011)

Bushcraftonfire said:


> I'm not sure about all the ins and outs of the copyright laws.. But I think that this "rendering" is actually photomanipulation. I *could *be wrong.. but the "drawing" looks too perfect IMO. If this *is *photomanipulation.. then I would think it should not be aloud.
> 
> The best way IMO to get around the vast array of the copyright laws is to definitively change the work (I assume painting or drawing) that you are doing. For example.. turn the head some.. etc etc etc. I would NEVER use the exact pose as Mr Braiwash did. A person's face can't be copyrighted.. so had he done these individually.. and not with the clothing (I don't mean naked.. I mean the poses.. LOL!).. he probably wouldn't have had an issue. *But it was the exact photograph*..
> 
> ...


*I disagree to some extent*, as It wasnt the exact photograph. It was an interpretation of a piece of the photo. The piece was even revised to have paint dripping from the bottom, incinuating the graffiti/ street art revision of the original. Theres no brick background. theres much less detail. 

The question is, did Brainwash change it enough to be something new? 
I would argue yes. Its not as if he just started printing Glens photo to t-shirts and started selling them.

..and sure, If Brainwash had copied the brick background and left out the Rap icons, Glen wouldnt really care. Hmmm, now why is that?
Because music fans pay for images of their cultural heros. (Not because of the skill of the shutter-bug, but because of the cultural legacy of the person in front of the camera.


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## Jeff (May 31, 2011)

So let me ask the question, is my work 'Glen DMC' enough of an artistic statement to protect me from Glens attorney? Or if I start selling these on t-shirts should Glen get his cut?


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## Jeff (May 31, 2011)

Heres another example of Glen Friedman Suing an artist. David Flores.
http://www.iptrademarkattorney.com/...derivative-transformative-shepard-fairey.html

Seriously Glen?


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## Jeff (May 31, 2011)

Freedom of the press ensures that Glen can take his camera anywhere and photograph anyone and then go and sell those photos without fear of being sued by the subjects hes pointing his camera at. The law protects Glen from RunDMC.

Why doesnt that same freedom protect me from Glen?


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## Bushcraftonfire (Apr 22, 2015)

Jeff said:


> *I disagree to some extent*, as It wasnt the exact photograph. It was an interpretation of a piece of the photo. The piece was even revised to have paint dripping from the bottom, incinuating the graffiti/ street art revision of the original. Theres no brick background. theres much less detail.
> 
> The question is, did Brainwash change it enough to be something new?
> I would argue yes. Its not as if he just started printing Glens photo to t-shirts and started selling them.
> ...


I don't know how familiar you are with digital editing Jeff.. But I stand by my original post that this piece was "manipulated", not drawn or painted. I have editors on my computer that can do this image almost identically within 30 seconds. 

Thus there is nothing of artistic value in this rendering... he just basically stole (used, manipulated, whatever verbiage you want to use) the image. He didn't create it in any way. A paint drip and editing out the background doesn't count! 

JMO

D


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## Jeff (May 31, 2011)

Oh yes believe me I know about photoshop. 
Manipulated IE changed. IE not the same. 
We can agree to disagree that Glen deserved to be compensated for Brainwash's use of his photo. 
..and yes I agree Brainwash should have expected trouble - because of the clear similarities + the fact he himself is famous 

soo.. what do you think about Flores's works and him being sued?


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## Bushcraftonfire (Apr 22, 2015)

Yeah.. I'm not sure about that one.. I think (personally) that it could be the artists rendition of the singer... He definitely ( I don't think) manipulated these photos.. rather did an outtake of HIS work of what the photo represented to him. I guess the courts saw it differently.

D


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## Jeff (May 31, 2011)

Bushcraftonfire said:


> Yeah.. I'm not sure about that one.. I think (personally) that it could be the artists rendition of the singer... He definitely ( I don't think) manipulated these photos.. rather did an outtake of HIS work of what the photo represented to him. I guess the courts saw it differently.
> 
> D


im not sure if he won the Flores suit Ill try to find that. 
cant seem to find results of the flores lawsuit. hmm.


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## Jeff (May 31, 2011)

BTW I do appreciate everyones thoughts on this. It is clearly a very complicated issue.


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## Courtney (Apr 20, 2015)

I think it's pretty cut and dry. 
Would this image exists without the existence of the original photograph? No, not like this.
Did the artist profit from the work that he made from the existing photographs manipulation? I don't know that much about it. But if yes, then the photographer is entitled to at least some of those profits. If the photographer actually copyrighted his work with the copyright office then he gets way more weight in the courtroom. 

But I do think that a photographer shooting this caliber of star should expect that artists may create derivative works.


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## TerryCurley (Jan 4, 2015)

Jeff said:


> im not sure if he won the Flores suit Ill try to find that.
> cant seem to find results of the flores lawsuit. hmm.


 If it were settled out of court there may be a gag order on it. That is a common practice.


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## Jeff (May 31, 2011)

TerryCurley said:


> If it were settled out of court there may be a gag order on it. That is a common practice.


I sure hope not. I hope it disappeared because the judge said something along the lines of,...."You're not serious, are you?" 

Sheesh, then again I guess that if you have enough lawsuits you wouldnt need to take pictures anymore.


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## Jeff (May 31, 2011)

Courtney said:


> I think it's pretty cut and dry.
> *Would this image exists without the existence of the original photograph*? No, not like this.
> Did the artist profit from the work that he made from the existing photographs manipulation? I don't know that much about it. But if yes, then the photographer is entitled to at least some of those profits. If the photographer actually copyrighted his work with the copyright office then he gets way more weight in the courtroom.
> 
> But I do think that a photographer shooting this caliber of star should expect that artists may create derivative works.


Yes, but I dont think thats how the law interprets it. Transformative works are actually to be encouraged..IE you can patent an improvement on someone elses patent. Hell if there can be no similar copies or associative art ever, we would have no Rock and Roll, ...we would simply have Muddy Waters and Howlin Wolf.

The question of stealing profit is, however, I believe pertinent. BUT! -does the new work change the meaning or interpretation of the subject? Even more pertinent to the question of whether the new work is protected as 'fair use' IMO.


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## Jeff (May 31, 2011)

Here is a famous manipulation of an existing photograph that there was an interesting fight over.

_The Southern District of New York (SDNY), in March 2011, held that Prince's works were infringing.__[2]__ At that point, the Cariou v. Prince case received significant attention, because the SDNY ordered that Prince's unsold works, and Rizzoli's catalogs, be impounded and destroyed.__[1]__ The SDNY in found that the works were not transformative, in part because Richard Prince did not claim to be "commenting upon" the original works.__[2]_
_Prince, whose works often sell in galleries for many thousands of dollars, appealed to the Second Circuit. The case was of high interest to the art world, which largely favored Prince's position,__[3]__ and to the photographic community, which largely favored Cariou's position._
_In April 2013, the Second Circuit reversed the SDNY's decision, finding that most of Prince's works were indeed "transformative" to a __"reasonable observer"__ and therefore fair use.__[4]__ In particular, the Court found that the lower court erred in requiring that the appropriating artist claim to be commenting on the original work, and found works to be transformative if they presented a new aesthetic.__[4]__ The court found 25 of 30 works to be transformative fair use under its standard, and remanded the case to the lower court for reconsideration of 5 of the works under the Second Circuit's new standard_.[4] http://en.wikipedia.org/wiki/Cariou_v._Prince


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## Jeff (May 31, 2011)

chanda95 said:


> It's different to a point but it is an obvious copy and I think that is where the problem lies with that particular piece.
> 
> *Did you know that Andy Warhol did, indeed, get sued for his use of somebody elses photographs and from that point on he was basically forced to take up photography* and use his own photographs to work from?
> 
> ...


Im only aware of one photographer who sued him - and that was over use of her flowers - he used it many times over and settled with her afterwards. Im not aware of any lawsuits resulting from his use of celebrities. He may have begun using his own photos, but he really didnt get 'dinged' for using photos of Elvis, Marilyn, etc. to my knowledge. Even Cambells Soup began to see the long term benefit of him using their can label.


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## Jeff (May 31, 2011)

*Paparazzi* /pɑːpəˈrɑːtsi/, /pæpəˈrætsi/ (singular: (_m_) *paparazzo* Italian: [papaˈrattso] or (_f_) *paparazza*) are photographers who take pictures of athletes, entertainers, politicians, and other celebrities, usually while they are going about normal life routines.
http://en.wikipedia.org/wiki/Paparazzi

Serious question here. Are Papparazzi artists? ..Should they have complete ownership and control over the images of people they sneak up on? 

If Jerky can sneak a photo of Beyonce and Jay-z's baby in a bathroom at the restaurant, he gets $500k. (seriously)
...and If I manipulate the photo and draw it, Jerky can sue me because in the eyes of his attorney, I stole from him. ..

Is it possible to steal something that was originally stolen?


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## Jeff (May 31, 2011)

http://en.wikipedia.org/wiki/Roy_Lichtenstein

Could Roy do his thing today? ...Heres a guy who is considered one of the greats, who said _""The closer my work is to the original, the more threatening and critical the content. However, my work is entirely transformed in that my purpose and perception are entirely different. I think my paintings are critically transformed, but it would be difficult to prove it by any rational line of argument". He discussed experiencing this heavy criticism in an interview with April Bernard and Mimi Thompson in 1986. Suggesting that it was at times difficult to be criticized, Lichtenstein said, “I don’t doubt when I’m actually painting, it’s the criticism that makes you wonder, it does.”_

I would say we can breathe a sigh of relief that he didnt get sued - didnt worry about getting sued - just did his thing.


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## Jeff (May 31, 2011)




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## Eddieblz (Jun 15, 2013)

With the onset of photo manipulation programs and being able to get any type of picture needed off the internet copy and imitation is the wave of the future. We all need to get used to it. I've seen some of my stuff pop up on goggle. Just posting in these forums, photo bucket and having our own web sights opens the door.


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