View Full Version : Plagiarism and copyright in the visual arts, a case study

Alessandra Kelley
01-27-2014, 08:13 PM
There have been some interesting discussions of plagiarism lately. I thought a nonwriter's perspective might be of help.

I'm a visual artist, and the art world deals with copyright and plagiarism problems of its own.

There is a persistent attitude in the visual arts that anything and everything visual is fair game for copying and use. That, combined with a widespread ignorance of copyright law, tends to lead to trouble.

To be clear, the law says that artists -- just like writers -- may not copy and sell works of others under copyright without permission. There is a lot of argument and obfuscation, but those are the plain facts.

This is a short history of one of the first big court cases in the US to deal with fine art copyright infringement, Rogers v. Koons (http://www.case.edu/affil/sce/authorship/Rogers_v_Koons.pdf) in 1989.

First, a little background.

There has been a trend in fine art for the last fifty years which mines popular culture for its imagery, a reaction to the monolithic abstraction of the postwar art world.

In the 1960s and 70s Andy Warhol produced whole series of silkscreened copies of journalistic photographs. Audrey Flack airbrushed photorealistic canvases of postcards of Renaissance paintings and still lifes. Claes Oldenberg sculpted giant clothespins and lipsticks.

A major exhibit of this sort of work called "Art About Art (http://www.reginaldcase.com/whitney.htm)" was held in the Whitney Museum of American Art and toured the country in 1978.

Many of the artists who produced art from premade images made no distinction between public domain works and copyrighted ones. They freely borrowed from comic books, advertising, magazines, packaging, and popular culture as well as older, more classical works, usually without any credit given to the original creators. Cultural images were treated as anonymous emanations of the zeitgeist gestalt rather than works created by the hands of other human beings.

Artists have sometimes gotten called out on it, but mostly they appropriated as they pleased under the radar. If caught they could settle out of court for a relatively small sum and make the person whose work they appropriated go away (Andy Warhol, for example, paid off at least three photographers whose works he copied (http://www.theartnewspaper.com/articles/No%20longer%20appropriate?/26378)).

The attitude persists that visual artists should be free to depict and use anything they please to make their images, including the work of commercial and marginalized artists. The matter of rights rarely gets discussed and is treated as an unwelcome intrusion when it comes up.

The movement was even given a name, "Appropriation Art (http://www.moma.org/learn/moma_learning/themes/pop-art/appropriation)." It was a big deal back in the '80s.

In 1989 a serious case about real money made it to the courts.

(Here is a brief description of the case. (http://www.casesofinterest.com/tiki/Rogers+v+Koons) The full text of the decision, with a full and fairly balanced description of the case, can be found here. (http://www.ncac.org/art-law/op-rog.cfm))

Jeff Koons is an art world megastar who rose to prominence in the 1980s with his workshop-made sculptures of modern cultural icons: balloon animals and plastic inflatable toys reproduced on a giant scale in stainless steel, ceramic images of television and cartoon figures, wooden copies of pop culture images carved by Italian artisans, and glass sculptures of himself having sex with his then-wife, adult movie star and member of the Italian parliament Ilona Staller.

His breakthrough 1988 exhibit, "Banality," a series of eight sculptures pointing out the emptiness and ugliness of mass-produced pop culture, firmly established him as one of the top fine artists in the US.

Koons has been praised by many art critics as one who blends high and low art, an idealist who has brought fine art to the common folk. See, for example, this Ingrid Sischy essay from a 1991 Vanity Fair (http://www.vanityfair.com/culture/features/2001/03/jeff-koons-200103).

In 2009 Jonathan Jones, a critic for the Guardian, said (http://www.theguardian.com/artanddesign/2009/jun/30/jeff-koons-exhibition-serpentine)

Jeff Koons is a brave and original artist. His art declares the weirdness of its materials, its themes, its maker and its public. He insists there is no irony in what he does. When he's gone, this denial will be forgotten and he will surely be acclaimed as a satirist. He says his art is about liberation and acceptance and embracing the mainstream. Is it also a disturbing image of the modern world?

Koons' art may be about "liberation and acceptance and embracing the mainstream," but it is somehow difficult to look at a show called "Banality" as a respectful gesture.

There is a much more serious problem. Most of the source material for Koons' work was designed and made by other artists and is still under copyright, yet no attempt was made to contact the other artists or gain permission to use the work.

In 1989 one of those other artists protested the uncredited, unpaid use of his work in a Koons sculpture.

Among other source material for the "Banality" exhibit, Koons used a souvenir postcard which he is reported to have considered artistically worthless and saccharine -- he later referred to it as not art but "a cupcake" (http://observatory.designobserver.com/entry.html?entry=6467) -- of a photograph of two people holding in their arms a large litter of puppies.

Koons used the postcard image to produce four copies and a master copy of a polychromed wood sculpture, "String of Puppies " in 1988.

Or rather, he did not make the sculptures himself but sent detailed instructions and a copy of the postcard -- with its copyright notice torn off -- to the Italian religious icon carvers' workshop he employed, stressing that they should copy the image as exactly as possible with some minor changes, such as clown noses on the puppies. (For the extent of the instructions, see pages 2 and 3 in this legal document. (http://www.case.edu/affil/sce/authorship/Rogers_v_Koons.pdf)

But the postcard was of course not an anonymous resource. It was the work of Art Rogers (http://www.artrogers.com/), a California-based photographer who had labored for decades to produce his low-key, somewhat sentimental, softly appealing images, some of which were in museum collections and some which he had licensed out as greeting cards and postcards. Absolute Write members would classify him as a hardworking midlist type.

Images of Art Rogers' original postcard and Jeff Koons' sculpture for comparison can be seen here. (http://cpyrightvisualarts.wordpress.com/2011/12/20/art-rogers-vs-jeff-koons/)

Koons' "Banality" exhibit was featured in major art magazines and the front page of the Wall Street Journal. Other sculptures in the show included images of the Pink Panther (http://www.extravaganzi.com/wp-content/uploads/2011/03/Jeff-Koons-Iconic-Pink-Panther-Sculpture-1.jpg), Odie (http://www.artnet.com/magazine/reviews/finch/Images/finch4-14-3.jpg) the dog from "Garfield," and Michael Jackson (http://www.creativeboysclub.com/wp-content/uploads/2012/05/koons-2.jpg), all without permission or regard for copyright.

Koons made over $6 million off sales of the sculptures in that show, $367K of it from three copies of the puppies sculptures.

In 1989 Koon's puppies sculpture was featured in an exhibit at the Los Angeles County Museum of Art and on the front page of a Los Angeles Times' Sunday section. At that time Art Rogers saw it and recognized that it was copied from one of his photographs and that Koons had never contacted him to ask if it was okay to use his image, let alone offer any compensation.

That October he sued Koons and the Sonnabend Gallery, which represents Koons, on the grounds of copyright infringement, seeking $375K in compensatory damages and $2.5 million in punitive damages.

Jeff Koons' and the Sonnabend Gallery's' lawyers' defenses (http://observatory.designobserver.com/entry.html?entry=6467) were:

1. Roger's postcard was not art, but mere journalism (and therefore undeserving of copyright protection, apparently),
2. Koons had borrowed "information" rather than "expression," whatever that means,
3. The idea of copyright had never even crossed Koons' mind,
4. No sculpture could ever actually be considered a copy of a photograph; they were essentially different arts,
5. And even if the sculpture were found to be a copy of the photograph, it was great art and therefore privileged.

The judge ruled for Art Rogers. Koons was ordered to pay the fine and hand over all copies of the sculpture he still held.

Koons instead sent a copy of the sculpture to a Berlin exhibition and was held in civil contempt and fined $500 per day until he finally turned it over.

Koons and the Sonnabend Gallery appealed the ruling in 1991 using a novel argument. They said the sculpture was fair use, a parody and a comment on the postcard.

The judges of the appeal court said it did not meet the standards of fair use and was not parody, but "piracy."

The appeals court said
The copying was so deliberate as to suggest that defendants resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist's work would escape being sullied by an accusation of plagiarism.

I have seen it repeated often in reports of the case that Koons lost partly because of his prominence and wealth. This seems unlikely.

The law has very firmly and thoroughly come down on the side of copyright ownership. Artists may not have their work copied for others' profit, no matter how inartistic or freely available other people may judge their work to be.

Copyright matters.

01-27-2014, 11:40 PM
Great write-up of a highly interesting case. Thanks for posting this!

01-28-2014, 06:17 AM
Thank you, that was very interesting.

01-28-2014, 07:27 AM
And, much like with written work, the technology of reproduction has become so good, so cheap and so ubiquitous, that it's increasingly difficult to enforce copyrights for visual work.


01-28-2014, 07:46 AM
However, given the high cost of legal fees, most art media companies are not going to challenge cease-and-desist letters charging copyright violations. Especially if the defendant isn't a high earner for them. It is true in the letter of intellectual property law: 'styles cannot be copyrighted'. In reality even a similar style challenged by another business can get a project knocked back to design or out of the catalog entirely. (Not to say rival companies don't steal from each other all the time; they just try not to get caught.)

The Koons case and a few others since have considerably changed the intersections of art and copyright.

01-28-2014, 08:14 PM
Very interesting. I wanted to be a painter well before I started writing, and even then copyright was a complicated issue with opinions ranging all over the place, and copyright infringement claims were common, yet little ever came of it.

It seems much more difficult to deal with than plagiarism of written work, but I'm glad you made this post. It gives me a lot t think about.