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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

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

Is this copyright infringement?

The image on the left is the February 2002 cover of Sports Illustrated featuring a photograph of model Yamila Diaz-Rahi taken by Jeff Bark. The image on the right is the May 2003 cover of Sojourn No. 22 drawn by Greg Land. The second image is presumably derived from the first, probably by tracing the first with a stylus to transfer the tracing to a computer program digitally.

I’m not sure what the statutes of limitations on copyright law are, but the Sojourn publisher, CrossGen, went out of business in 2004, perhaps leaving no one to sue if Greg Land produced the image made-for-hire, meaning CrossGen purchased the copyright. Since Jeff Bark was employed by Sports Illustrated who presumably purchased his work outright too, he may or may not have grounds to sue. The image is of Yamila Diaz-Rahi, so she presumably would have grounds, and since CrossGen doesn’t exist, perhaps she could sue Greg Land directly.

Of all of those potential legal battles, I’m not aware of any actually occurring. No one sued anyone. Why not? Even if CrossGen were still in business and Diaz-Rahi, Bark, and Sports Illustrated were aware of the potential infringement immediately after the publication of Sojourn No. 22, I still suspect no one would take any legal action because Land’s use of the Bark photograph would be protected by fair use.

Even though the new image was created as part of a commercial product (and so not exempt due to purpose), “the amount and substantiality of the portion used” probably does not exceed the vague limits suggested by previous court rulings (which I’ve been describing obsessively for the past three posts).

At what I previously described as the micro-level, the second image uses none of the raw materials of the first image directly (which makes it dissimilar to Warhol’s Prince and Fairey’s HOPE). But at the macro-level, the gestalt effect of the new image clearly replicates the source. To paraphrase the Second Circuit Court of Appeals: “the degree to which Bark’s work remains recognizable within Land’s, there can be no reasonable debate that the works are substantially similar.”

And yet, I’m guessing, not similar enough, since it triggered no lawsuits. And neither has Land’s other equally derivative artwork:

And Land is hardly alone. The practice of comics “swipes” originates long before digital tracing made it even easier. Fred Guardineer copied N.C. Wyeth’s 1919 The Last of the Mohicans illustration for Action Comics No. 8 (January 1939).

And Batman co-creator Bob Kane was a notorious swiper, usually of other comics artists.

Comics artists also swipe from themselves. Neal Adams reproduced his cover for Superman No. 243 (October 1971) for his cover of Jonah Hex No. 91 (June 1985).

Since DC published both, copyright infringement wasn’t possible. But what about when an artist swipes his own work after moving from one company to another, as John Byrne did between Marvel and DC?

This is distinct from “homages” where the point is to evoke the original:

Including across publishers:

So why are comics seemingly exempt from U.S. copyright law? The short answer is they’re not. But the law requires lawsuits, and if no one alleges infringement, the law is moot. So the more relevant question may instead be: why is it so rare to sue a comics publisher for copyright infringement?

Returning to the first example, I think sometimes it has to do with the degree of transformation. In addition to variously altering the physical content of Bark’s photo, Land uses an image of a real person in order to depict a fictional person. I’ve never read Sojourn, but here’s a synopsis of No. 22:

“The quest continues as Arwyn ventures deep into the desert wastes of Oudubai, but her deadliest enemy may not be the sand, the heat or the troll pursuers dogging her every step. The greatest danger may well come from one of her own companions – a thief who has designs on the very Fragments Arwyn carries.”

I’m guessing, based on the faux mid-eastern veils that Land drapes on Diaz-Rahi, that the image is of the “thief” from “Oudubai” (I’m not going to plunge into an Orientialist critique right now, so I’ll just say that Land’s use of porn for his superheroine swipes may not be his greatest shortcoming). That’s very different from the infringement case that started this now four-part sequence of posts, where Warhol used an image of Prince to create an image of Prince:

That seems to be a self-evidently bad idea, since a primary point of appropriation art is its transformative quality.

According to New York Times art critic Blake Gopnik, the ruling against Warhol “had the effect of declaring that the landmark inventions of Duchamp and Warhol — the ‘appropriation’ they practiced, to use the term of art — were not worthy of the legal protection that other creativity is given under copyright law.”

While the ruling concerns me too, Gopnik performs a rhetorical sleight-of-hand by implying that Warhol’s Prince and Duchamp’s Fountain are essentially alike. They’re not. Duchamp took a urinal, turned it on its side, signed it, titled it, and placed it in an art exhibition, thus transforming it through a change in context that altered the nature of the object itself.

A urinal became a sculpture.

The equivalent for Warhol’s Prince would be if Warhol took a urinal and transformed it into a somewhat different urinal.

Which now makes me rethink my own self-portrait. If my photograph (okay, it’s a Zoom selfie) had been used by another artist without my permission, would I have the basis for a successful lawsuit?

The fact that I still don’t know the answer to that question is evidence that U.S. copyright law is in need of some serious clarification.

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

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