Originally published at: https://boingboing.net/2024/05/17/photographer-wins-lawsuit-against-alleged-painter-who-plagiarized-her-work.html
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" Using a different medium was irrelevant. My work being ‘available online’ was irrelevant. Consent was necessary."
oh, i know! do openai next!
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Flipped because he’s using one of those copy mirrors?
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Yeah I think that makes sense. If he’s actually painting these with his own hand, why not change more of the image to avoid any problems? If he’s a talented painter, that should be trivial. Make the hairstyle completely different, change the flowers, change the eyes, do something. Anything. Well…anything more than just adding an earring and the hilt of a sword. That wasn’t sufficient. Either he’s sending this work off for others to make, or he has absolutely zero artistic vision of his own, and so only feels comfortable copying others’ work.
Copying the work of others is fine for a hobbyist painter. My grandmother did that after she retired from the telephone company. She took up painting with oils. She just copied landscapes and still lifes from art books. She was good at it, but it wasn’t original, and she couldn’t have sold her art as originals. I have one of her paintings hanging in my office. It’s a treasured possession. But it’s not original art, and it could never have been sold commercially. If this guy wants to make copies of photographs in paint, he can do that. He just can’t make money from it.
ETA: My grandmother’s painting. Ironically, I hate clowns.
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modern day camera obscura
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It’s an original copy.
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She is. She’s one of the artists and photographers in the big class action.
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In fairness, I think he claimed that exacting reproduction was part of the artistic re-use/recontextualization or whatever Roy Lichtenstein thing you want to call it. But in further fairness, I think you have to mention that before you’re caught.
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Thank you! This is big news not only for the AI case but for all the artists (mostly women & people of color) defrauded by Richard Prince.
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There’s a whole art tradition/discourse around making work that references/copies other work - paintings of paintings, paintings of photographs, photographs of paintings, photographs of photographs, etc. The problem here is that the (ostensible) artist isn’t engaging in that discourse, and isn’t even acknowledging what he did. Supposedly he’s a student - which means he absolutely should know better, because these are the discussions that happen in art school. The whole thing is rather suspect, and some smart-ass deciding he’s going to “reveal the art world to be a fraud” by hiring some Chinese painters to do copies of photographs is a possibility. It wouldn’t be the first time someone did something like that.
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Well…really the problem is that he was benefitting commercially from the work, something people in that tradition of discourse, I presume, don’t generally do. Even if he had engaged in that discourse, if he was using his works commercially, it’s infringement. I was probably overly narrow when I said it was fine for hobbyists to do this. There are others who aren’t just hobbyists who do this in a way that’s not infringement.
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I’m only an amateur at art, but I think that’s ususlly referred to as a study. The various online tutorials I’ve read/watched say it’s fine to make studies of others’ works, as a learning exercise in technique, composition, lighting, etc. However, they all agree that it’s unethical to claim the finished product as your own original work. Some artists say even posting the finished study on social media, including attribution of the original, is a bad idea-- they feel studies should stay private.
Obviously, publically exhibiting a study the way Dieschburg did isn’t ethical, under those standards. 
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On the contrary, there’s a long tradition, that really took off in the 20th century, among fine artists whose work is sold in galleries and displayed in museums, in appropriating images as part of their work in various ways. There’s work that comments on the saturated media environment, whose sources are often not fine art (e.g. Warhol, Jeff Koons), and work that comments on the nature of authorship that directly reproduces other fine artworks (e.g. the work of Sherrie Levine, who among other things re-photographed famous pictures). How copyright is viewed has changed quite a bit in the last 40 years, so there’s a lot of artistic traditions that are suddenly running into legal trouble, but fine artists tend to be more relaxed about having this happen to their own work because this is the tradition in which they’re working.
But as I said, artists working in these areas are explicit about what they’re doing, which the ostensible painter in this case wasn’t, at all - quite the opposite, in fact - which changes things artistically speaking, even if not legally.
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arguing his work is Fair Use, a controversial exception to copyright infringement.
Fair Use isn’t controversial, it’s a long established, solid part of copyright law, with occasional edge cases. The only question was, were his works Fair Use?, and the answer should be no.
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From what I understand of that art style (which I admit, isn’t much), there was often some element of transformation involved: the addition of lurid colors, or stylization that subtracted minor details.
Seeing the photograph and painting from the OP, I’m not seeing much transformation there… it’s pretty much a flipped re-rendering of the original photo. Of course, I’m not a student of art history so my opinion could be considered half-assed, but I agree with the appeal verdict: it’s plagiarism. As @RickMycroft posted above, this doesn’t appear to fit the Fair Use doctrines as described by Copyright.gov.
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That’s my understanding too. Even Warhol’s Brillo boxes were clearly imitations, with purposely rendered flaws.
The sculptures were created like ordinary products—efficiently and systematically, one after the other, using the labor of many different hands. It was no accident that Warhol named his studio The Factory. Even so, no two sculptures are identical, nor do they appear all that mechanical, despite having been screenprinted. In the case of the Brillo box seen here, an array of drips, slips, and imperfections mars its surfaces.
