Alaskan Artist - Elise Tomlinson
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02/24/2009: "Creative flow and the copyright question"

Last night I started working on some images for a new show I'm going to have in May. The opportunity to have this show only came up a couple of weeks ago so I really only have about 2 months to come up with 6 new paintings and finish 4-5 "in-progress" pieces.

I can't use the same paintings I was going to show in Anchorage, because most of them were paintings I already exhibited in Juneau, that I modified by repainting but not in significant enough way to warrant another local showing.

So, I am frantically getting back to work. For me, the process all starts in PhotoShop. I often use my own photographs (or in the case of last night, some that Aaron took of seaweed) and I incorporate other images that I cut and paste from photos I find online.

I piece them all together in PhotoShop, change the color, orientation, etc. and come with a completely new piece that I then paint into my stylistic form of painting.

However, as coincidence would have it, I've been working on a talk I'm going to give to a group of Alaska Native Early Scholars students this afternoon and the topic is copyright and cultural and intellectual property rights. Doing research for this has created more questions for myself as an artist, than it answered. When it's OK to appropriate or build on elements of another artist's work for example.

And discussing the topic with Aaron this morning he mentioned that the artist Shepard Fairey copied the work of an AP photographer with his Obama "hope" poster...and is being sued.

It's still such a gray artist to me, artists have been "appropriating" from one another since time began, both visually, musically, cinematicly, etc. I guess as long as you don't make a lot of money no one will probably come after you, but it still makes me nervous.

Any thoughts?

Also, I showed Aaron the 3 new pieces I started in PhotoShop and I could tell by his response that he wasn't that blown away. I, however, feel really excited about going in a slightly different direction. I wish I had more time for exploration without the pressure of a show, but then, whenever I don't have the pressure of a show, I pretty much stop, it's a catch 22.

Replies: 7 Comments

on Tuesday, February 24th, Steve said

Correct me if Im wrong but the article you linked to says that the artist sued AP not the other way around...

on Tuesday, February 24th, Elise said

Hi Steve,
The AP sued the artist first asking for an undisclosed amount of compensation, and then the artist filed a counter-suit.

"The portrait illustration for these posters were based on an AP photograph taken by Mannie Garcia, depicting Obama at a panel discussion at the National Press Club in 2006. AP claimed that the drawing violated its copyrights, and after publishing a news story on the issue, demanded an undisclosed amount of compensation.

Fairey then filed a lawsuit in U.S. District Court in Manhattan, claiming that he did not violate the copyright of the April 2006 photograph because he dramatically changed the nature of the image. Fairey is currently represented by the Center of Internet and Society at Stanford University, arguing that his use of the AP photo falls under "fair use."

According to the complaint, Fairey's team argues that the two images have different purposes. "While the evident purpose of the Garcia Photograph is to document the events that took place at the National Press Club that day in April 2006, the evident purpose of both Obama Progress and Obama Hope is to inspire, convince and convey the power of Obama’s ideals, as well as his potential as a leader, through graphic metaphor," the claim says."

on Tuesday, February 24th, Steve said

Your quote only says that the AP demanded compensation, which is the same as sending a bill.

Everything I've read about the case says that Fairey sued first. See:

Specifically the paragraph-as-its-onw-line, "It had not filed suit."

on Tuesday, February 24th, Steve said

Your quote only says that the AP demanded compensation, which is the same as sending a bill.

Everything I've read about the case says that Fairey sued first. See:

Specifically the paragraph-as-its-onw-line, "It had not filed suit."

on Tuesday, February 24th, Elise said

Hey Steve,
Sorry about the misunderstanding. I only browsed through the article and although the AP started it by coming after Fairey and asking for compensation for the use of their photograph, you are correct that they hadn't actually filed a suit at the time that Fairley filed his.

I'm obviously not a lawyer...I'll be interested to see if the AP files a counter suit and if not, how the court will rule on this issue. As an artist, I can see both sides of this issue.

For example, if someone used one of the photographs from my website to paint a recognizable copy that they then sold for thousands of dollars, I might want some compensation as well.

After all, they could not have created their piece without it.

on Wednesday, February 25th, Jim L said

Alls I know? Stay far, far, far away from using Disney characters! They'll come out at you full blast and you'll feel like the Sorcerer's Apprentice.

In your case, I would hope that the partial use of found internet images in your paintings come under fair use since you manipulate them to a sizable degree and that manipulated use forms a part of the result - not the whole thing.

The Fairey/AP case is interesting because the Fairey image is directly descendant from the AP image - but it is a new thing as well. Kinda like the Koons puppy case (which I believe he lost...)

on Wednesday, February 25th, Elise said

Hi Jim!
Yes, I try to manipulate the images beyond recognition before painting them but I still worry, and I'm afraid some are still probably recognizable.

In some ways, as an artist, it's good to fly under the radar. You aren't scrutinized as much as you would be otherwise.

I remember the koons puppy case:

"The Court found both "substantial similarity" and that Koons had access to the picture. The similarity was so close that the average lay person would recognize the copying. Thus the sculpture was found to be a copy of Rogers' work."

Anyway, I'm going to be even more careful in the future. Better to err on the side of caution!