Princes of Plagiarism: Drawing the line for copyright infringement (part 2 of probably 3)

April 19, 2021 Princes of Plagiarism: Drawing the line for copyright infringement (part 2 of probably 3)

[Update: SCOTUS ruled on May 18, 2023, which I discuss here.]

Last week I looked at three court cases where an artist used a copyrighted photograph to create a new work: Warhol used a Goldsmith photograph of Prince to create the Prince Series, Fairey used a Garcia photograph of Obama to create HOPE, and a group used a photograph of a Madison Mayor to create a t-shirt mocking him. A judge ruled Warhol was protected under fair use, but the ruling was overturned on appeal. Fairy settled out of court (after falsifying evidence which led to a separate conviction). And a judge and an appeals court both ruled that the mayor t-shirt was fair use.

Although the Second Circuit warned judges to “not assume the role of art critic,” some grounding in visual analysis might be helpful. To start, here’s a self-portrait I created for my forthcoming book The Comics Form: The Art of Sequenced Images (Bloomsbury 2022).

I analyze the representational relationship of an image to its source according to two poles, exaggeration and simplification, producing four combinations: 1) the bottom left corner is an actual photograph, so it is unsimplified and unexaggerated; 2) the bottom right corner is adapted from the same photo by erasing everything but the minimum lines needed to represent a face, so it is simplified but not exaggerated; 3) the top left corner is adapted from the same photo by variously expanding and rearranging details, so it is unsimplified and exaggerated; and 4) the top right corner is drawn using roughly the same number of lines as the image below it and with roughly the same degree of distortion as the image beside it, so it is simplified and exaggerated. 

I suspect no judge would question the legal legitimacy of a simplified and exaggerated image (top right), and I suspect any judge would find an unsimplified and unexaggerated image to infringe on copyrighted image (bottom left). That wasn’t always the case though. Roy Lichtenstein duplicated a section of page 3 from the 1963 comic Secret Hearts No. 83 drawn by Tony Abruzzo. Since Abruzzo was employed by Arleigh Publishing, which was owned by DC, DC owns the rights to the Abruzzo image, which Lichtenstein used without permission or attribution. I’m not sure what the statutes of limitations are on copyright infringement, but Lichtenstein’s are well past the half-century mark.

Sticking to this century, a court ruled against Richard Prince for using 30 photographs taken by Patrick Cariou in collage works in 2011. But then in 2013, an appeals court ruled in Prince’s favor, finding that 25 of Prince’s transformed images fell under fair use. The two parties settled the remaining five images out of court, including Graduation:

The appeals course was uncertain whether Graduation fell under fair use because it and the other four questionable works “do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a ‘new expression, meaning, or message.’”

Prince’s In the Garden is one of the 25 works that did not infringe:

Setting Prince aside (because how and how much an image or an image part changes meaning contextually is a wide open subject), the legally contestable and analytically confusing areas of my four-mode self-portrait are the remaining two squares (top left and bottom right).

Most of the above examples fall into the second category, simplified but no exaggerated. Warhol (for both the Prince and Marilyn series), Sconnie Nation, and Fairey removed considerable detail from their source photographs, but did not alter (or in the case of Fairey, altered minimally) the remaining details. The images (as far as how they relate to their raw material) are therefore simplified and unexaggerated. The adaptors also added details (mostly non-realistic colors), but those additions combine with but do not directly alter the details that remain from the sources.

The question then in each of those court cases is how much simplification (removal of detail) crosses the threshold of fair use?

Andy Baio asked the same question when he was sued in 2010 for using a photograph of Miles Davis taken by Jay Maisel. The photograph originally appeared on the cover of the 1959 Miles Davis album Kind of Blue, and Baio used a pixelated version of the image for a “retro videogame music” tribute album he produced titled Kind of Bloop.

Baio believed he was protected by fair use: “With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements.” The pixilation also matches the purpose of the album: “to engage both artist and viewer in the same exercise — can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph? It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message.”

But litigation is expensive even when a defendant wins, and the risks of losing can be financially catastrophic. Baio settled out of court. He also asks on his blog: “Where would you draw the line?”

The question is difficult to answer in part because the law doesn’t consider under what condition an image is viewed. Consider this abstract grid of multi-colored squares:

If you’re looking at a computer screen right now, move a few yards back. If you’re looking at your phone screen, just extend your arm and squint. Or look at the identical image when reduced in size, and you’ll see why I titled it “Kiss.”

A low-resolution image looks low resolution only when viewed at sizes large enough (or distances great enough) to reveal the distortions produced by the low resolution. If you stand far enough away from Banksy’s Cardinal Sin, pixel-like squares on the face of the statue will look a normal face.

Courts often allow thumbnail reproductions (2003 Kelly v. Arriba-Soft, 2006 Graham Archives v. Kindersley), but even though a postage stamp is smaller than a square inch, the 2010 Gaylord v. United States ruled that the postal service needed the sculptor’s permission to reproduce an image of the Korean War veteran’s memorial. That’s presumably because thumbnails are low resolution, and stamps are high resolution—though you may need a magnifying glass to notice.

Pretending there’s a legal standard for “under what conditions” that accounts for image size and viewer distance, I wonder how Baio’s question applies to Goldsmith’s photograph of Prince. Though any digital enlargement is pixilated, the effect can be so mild that it goes mostly unnoticed:

At the other extreme, when the pixilation is so great the face is no longer recognizably Prince, we should be safely in the zone of fair use.

It’s the middle region that’s ambiguous and so legally treacherous.

With Baio’s examples, I think the first four images likely infringe on copyright, and probably the next two as well.

I think the last four likely fall into fair use, and probably the remaining middle two.

Compare that first (according to me) fair use image to the original and to the one that Baio actually used:

Why draw the line there?

I’ll try to explain that next week.

[Spoiler Alert: This somehow evolved into a four-part analysis (one, two, three, four), with an on-going artistic coda starting here.]

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