In a world where it has become incredibly easy to make exact copies of others work, when, if ever, does that work become your own?

This is the overriding question in a New York Times article, published on December 6th, entitled If the Copy Is an Artwork, Then What’s the Original?.

The article, written by Randy Kennedy, is about the working methods of the artist
Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.

One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.

The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society - images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.

But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.

The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”

Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition - the conception, the pose, the exact moment to capture - these things were decided by Krantz and re-used by Richard Prince.

The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…

Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.

My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
—————
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — 
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
—————

(1) clearly Richard Prince’s art is of a commercial nature.
(2) a photograph is a copyrightable work.
(3) in some cases, it appears that Prince has used 100% of the copyrighted work.
(4) this is the main issue - the effect upon the potential market for or value of the copyrighted work - when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.

Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”

Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.

commercial photographer, copyright, copyright+infringement, exact copies, guggenheim museum, intellectual+property, intellectual property issues, jim krantz, marlboro man pictures, new york times, philip morris company, randy kennedy, richard prince

I keep thinking about an op-ed article I read in the NY Times while flying to Chicago this Thanksgiving. The article entitled Pay Me For My Content, written by Jaron Lanier, urges Internet developers to move away from the “content must be free” mantra and points towards designing systems that fairly compensate creators for use of their work on the web.

The impetus for the article is the ongoing strike by television writers which, among other things, is challenging the studios for a better portion of residual payments from use of movies and shows on the Internet.

“Like so many in Silicon Valley in the 1990s, I thought the Web would increase business opportunities for writers and artists”, Lanier writes. “Instead they have decreased. Most of the big names in the industry — Google, Facebook, MySpace and increasingly even Apple and Microsoft — are now in the business of assembling content from unpaid Internet users to sell advertising to other Internet users.”

“There’s an almost religious belief in the Valley that charging for content is bad.” says Lanier. In fact, Lanier once felt this way himself. Back when the Internet was new, he wrote an article titled “Piracy Is Your Friend”. Now he says he was wrong.

Should information be free on the web? Lanier says, “Information is free on the Internet because we created the system to be that way. We could design information systems so that people can pay for content - so that anyone has the chance of becoming a widely read author and yet can also be paid. Information could be universally accessible but on an affordable instead of an absolutely free basis.”

It’s an important turn. A web pioneer, once firmly behind the idea (the ideal) that information on the web should be free, now says “We need to grow up. Affordable turns out to be much harder than free when it comes to information technology, but we are smart enough to figure it out. We owe it to ourselves and to our creative friends to acknowledge the negative results of our old idealism.”

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An early Internet pioneer, Jaron Lanier is most known as the creator of the term “virtual reality” and for pioneering several early VR products. He is also an accomplished musician and composer.

Here is a quote from Lanier’s wikipedia page.

“What’s to stop an online mass of anonymous but connected people from suddenly turning into a mean mob, just like masses of people have time and time again in the history of every human culture? It’s amazing that details in the design of online software can bring out such varied potentials in human behavior. It’s time to think about that power on a moral basis.”

It’s a very inciteful statement. The damage done by music piracy comes to mind.

digital information, intellectual+property, internet broadcasting, jaron+lanier, Jaron Lanier, television writers strike