Re: Fine Art Reproductions

On 03/30/99, Charles C. Mann <ccm[_at_]crocker.com> wrote:
>
> In a slightly different vein, I recently met the photographer Lauren
> Greenfield, a professional photographer (National Geographic, NY
> Times, etc.) whose work recently was "appropriated," as I believe the
> term is, by a painter named Damien Loeb. Greenfield published a book
> of photos of LA teens a few years ago. The cover was a picture of
> four kids driving around. Loeb took this image -- or, rather, painted
> a completely faithful copy -- onto a large canvas and juxtaposed it
> against a background taken from another photograph, a gory picture of
> a white South African cop shooting some prone black people. By the
> juxtaposition, the kids in Greenfield's picture are made to seem to
> be speeding by the killing, laughing at the scene. The copy of her
> photograph occupies about 40% of the painting and is obviously the
> subject. Loeb exhibited the picture and others like it in the
> prestigious Mary Boone gallery in Manhattan in January, where it
> apparently sold for about $15K. Moreover, Greenfield told me, the
> painting has been reproduced in many places, including the magazine
> Artforum -- it's apparently become a sort of signature image for the
> painter. My question is whether there's a copyright-infringement issue.

Absolutely. The photograph is an original work of authorship, and I assume that Greenfield retained the copyright. Based on your description, the painting is clearly a derivative work. The only remotely plausible defense is fair use, and I have a hard time believing that it would succeed here. I suppose Loeb, like Jeff Koons, could claim that this is a "parody" or "comment" on the original, but I seriously doubt that a court would buy the argument. Those of you familiar with my article on parody and satire know that I am an advocate of strong fair use protection for parodists, but even I would have a hard time accepting such an argument here. But there are others who would go even farther than I, and grant fair use protection to such "appropriation" art. [One possible compromise, suggested in Campbell, is to award damages only, and not an injunction.]

Moreoever, given the purchase price of the painting, there is obviously enough money to justify bringing suit. Did she say why she hasn't done so? [The statute of limitations is three years after she reasonably should have discovered the infringing use.] Or has she done so? I don't think you said one way or the other.

> Before the Boone show, Loeb contacted the photographer to ask
> permission to use the image. Greenfield says that she refused,
> because she thought it was unfair to tar the kids, whom she liked,
> as racist. As the kids are from LA, I also wondered whether the
> California right of publicity law has any application here.

Campbell says that asking permission and going ahead after being refused cannot be held against you. Under current doctrine, the reason for the refusal matters little. Many academic authors (including me) have suggested that copyright should safeguard only economic motives, and not non-economic ones like this; but in real life, most courts will allow the right to prepare derivative works to be used to safeguard objections based on moral rights. [The express provision for moral rights, sec. 106A, would not apply, since the original photo was reproduced in more than a limited edition.]

Right of publicity? Perhaps, if the kids are recognizable; but this is one of those cases where the picture isn't being used to sell a product, but the picture IS the product. It's the Tiger Woods problem, except that the kids weren't previously famous or well-known, so there's much less of an inference of passing off. In addition, you run into the problem of whether the applicable law is California or New York (or somewhere else). Defamation or false light privacy are also possible causes of action.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Mar 31 1999 - 20:43:18 GMT