Re: Fine Art Reproductions

On 04/02/99, Frangois-Rigis Levol <levolfr[_at_]club-internet.fr> wrote:
>
> I agree with your 2 examples (Greenfiels and Koons), where the
> copyright infringments are clearly identified (like in french law)
> but then what about cubist, futurist and dadaist collages? What
> about Pop Art works representing consumption society icons (Coca
> cola bottle, etc..)? They were infringing copyrightable works!
> For instance, Warhol's works : his famous Campbell Soup collages
> or his serigraphies of copyrightable photographs (Mao, Marylin
> Monroe, electric Chair, Elvis...)? How come nobody sued him? Or
> maybe he asked permissions?

I would welcome correction from someone who knows, but I seriously doubt that Warhol asked permission. Why wasn't he sued? Because it is only in recent years that the "if value then property" approach to I.P. has really taken hold. Maybe Coca-Cola or Campbell's didn't mind if Warhol used images of their products, or believed that they would lose; but there is a strong possibility that they would win such a case if brought today. It's probably not a trademark violation, but there's always dilution; and as for copyright, fair use has been constricted in recent years. And don't forget a lot of people don't think the Koons case is as clear-cut as the court made it out to be.

As for Mao, Marilyn Monoe and Elvis, rights of publicity have been expanded in recent years as well. This is the issue in the Tiger Woods case: can you prevent artists from using images of celebrities in their art? What if the art is commercial in nature (as in the Franklin Mint/Bradford Exchange)? And if so, how to distinguish between commercial art and commercial advertising?

> I am not sure Marcel Duchamp asked permission to use a urinal or a
> flat iron as "ready-made"? Did the manufacturers of these objects
> sued Duchamps? They should have because the urinal is now very
> expensive (last year, an artist tried to destroy it in Paris and he
> was sued to pay 80.000$ just to repair it!).

This is a completely different issue for two reasons. First, under U.S. law, even original designs of useful articles aren't protected unless there are original artistic elements that are conceptually separable from the article itself. [This may change if/when the Vessel Hull Design Protection Act is amended, but it's the law for now.] Second, even if the design were protected, the first-sale doctrine generally would allow you to re-sell an article that was lawfully manufactured and purchased, even if you called it "art." [Of course, the first-sale doctrine does not apply to the preparation of derivative works, so if Duchamp's art was considered a derivative work under Mirage, which it probably would be, than Duchamp would have to get permission under current Ninth Circuit law.]

Returning to copyright, I think a lot of the conflict is generated by the "all or nothing" nature of fair use. If it's fair use, you can use it without permission AND you don't have to pay for it. If it's not fair use, you can't use it at all unless you get permission. If courts started taking irreparable harm seriously and denied injunctions in close I.P. cases, we might reach an acceptable, perhaps even optimal, compromise: yes, the artist can use it without permission, but he/she will have to pay something for the privilege. But when it's a choice between allowing damages AND an injunction versus nothing at all, courts who see unjust enrichment are all too willing to award the former.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Apr 05 1999 - 21:52:49 GMT