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Can I Sue a Fellow Photographer for Producing Pictures That Look Just Like Mine? + Other Artists’-Rights Questions, Answered


Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work. 

Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article. 

 

I’m a decently successful photographer who has made her sorta-name through large-format photographs of skateboarders and their injuries. Imagine my surprise when I visited a high-end skate shop recently and discovered a photograph that was like one of mine but not taken by me. Someone’s stealing my schtick. Can I sue?

I watched skateboarding in the Tokyo Olympics and it seems like injuries are a big growth industry. Those guys fall a lot. 

All kidding aside, I’m sorry to tell you that you probably have little legal recourse here. In the U.S., copyright is only applicable for works “fixed in any tangible medium of expression,” which means that ideas, from highbrow concepts for dinner parties to the conceit for a series of paintings, cannot be copyrighted. You hold the copyright to your photographs from the moment you develop them, but the general idea behind them is—unfortunately, in this case—up for grabs. 

This issue recently came to light with a photograph that pop star Olivia Rodrigo staged to promote her “Sour Prom” concert, which was more than reminiscent of the cover for the 1994 Hole album Live Through This. In it, Rodrigo wears the same style crown and carries the same kind of flowers as the woman from the Hole album cover, and her makeup is applied in a similarly vertical style. Rodrigo later spun this as an homage, though she didn’t tag Courtney Love or the original photographer, Ellen von Unwerth, in her Instagram post of the photo. It smelled fishy, and not at all like teen spirit, but in the New York Times, von Unwerth acknowledged that there’s little more she can do than be annoyed about it. 

That said, lawsuits are not the only venue for retribution in matters such as these (for more on that, see the answer to our next question). When it comes to “who did it first” or “who did it better,” social media is a powerful force. Consider the backlash when Juergen Teller shot Rhianna for Vogue and many thought that he unfairly appropriated the style of Mickalene Thomas. The court of public opinion is quite vocal these days. You can always try to make your case there.

What Pornhub's "Classic Nudes" page looked like when it launched last month...

What Pornhub’s “Classic Nudes” page looked like when it launched last month…

I read the New York Post every morning, but even my hardened sensibilities were shocked by their reporting on Pornhub’s latest P.R. stunt: an app that takes you to the dirtiest nude paintings in any given museum and then animates them with pornographic actors. How is this legal on any level? 

When it comes to copyright, I may be a bit of a prude—but when works are in the public domain, I’m all for getting a little loose. Which is why I got such a kick out of Pornhub’s newest venture, the re-imagining of European masterpieces, pornography-style, in the hopes that tourists add them to their list of MILVs (Museums I’d Like to Visit). And the legality? Oh, it’s all legal (though that hasn’t kept Pornhub out of trouble—more on that in a bit).

Here’s why: As we’ve established, copyright only exists for the duration of the life of the creator plus an additional 70 years post-mortem. After that, the works are in the “public domain,” an image that conjures a grassy field on which anyone may graze their cattle. 

And graze Pornhub has, hiring actors from the My Sweet Apple adult entertainment troupe to advance the plot, as it were, on paintings like Courbet’s The Origin of the World (1866) which hangs at the Musée d’Orsay, along with other works from the collections at the Met, the National Gallery, and the Prado, among others. It was an odd thing to spend one’s advertising budget on, and seems designed to outrage art historians, but since the works in question have aged out of copyright protection, the museums have little grounds for a lawsuit. 

Still, that didn’t stop the Louvre from threatening, or the Uffizi from sending Pornhub a cease and desist letter. Seemingly spooked, the site wiped all of the art-inspired porn from its site, and many of the artworks that inspired it, leaving just a few lonely Impressionist paintings to stimulate what we can only guess is a very specific segment of its audience. 

Left to right: K.K. Downing, Glenn Tipton, Rob Halford and Ian Hill of Judas Priest perform on stage - Unleashed In The East album cover session taken in July 1979. (Photo by Fin Costello/Redferns)

Left to right: K.K. Downing, Glenn Tipton, Rob Halford and Ian Hill of Judas Priest perform on stage in July 1979. (Photo by Fin Costello/Redferns)

I was reading an interview with Stephen King, and he said that he had originally included the lyrics from the song “You Got Another Thing Coming” by the English heavy metal band Judas Priest as an epigram in his 2008 novel Duma Key. But, he said, “they [the band] came back and said that they wanted $50,000 plus royalties. And I said, ‘Fuck that shit! That’s not going to happen.’ So I made us a doggerel of my own.” Why would it cost that much money to print lyrics from a song? 

Knowing Stephen King’s reverence for classic rock and his massive success as a creator, it is kind of surprising that he chose not to pay the $50,000 (and that he was able to approximate the soaring lyrical heights of “You Got Another Thing Coming”!). 

When it comes to copyright for songs, the music industry really uses the whole buffalo. There are broadcast rights if you’d like to play the song on T.V., performance rights if you’d like to play the song at a political rally, and there are print rights if you want to reproduce lyrics or sheet music. These are useful when it comes to epigrams, merchandising, and printing lyrics on soda cans.

Breaking down rights this way can be useful when different people are responsible for writing the lyrics and music, the way Elton John and Bernie Taupin used to do it. (In this case, Judas Priest appears to have collectively dashed off the track to fill out their 1982 album Screaming for Vengeance, so they would all presumably share the $50,000 royalty.) 

As to why this particular license cost so much, I can only estimate that the bill was based on projected sales for King’s book. Print rights for lyrics usually break down to one cent per unit, and it wouldn’t be unexpected for King to sell five million copies. Though with the Delta variant surging, I would personally recommend The Stand—the title for which is, of course, based on a Bruce Springsteen lyric.

Photo: Lionel Bonaventure/ AFP via Getty Images.

Photo: Lionel Bonaventure/ AFP via Getty Images.

I’ve heard that Black TikTok creators are on strike. Does TikTok not own their content? Do these creators have a union? How does that work? 

It’s true that TikTok is one of the more confusing social media platforms. It’s more about lip synching and dancing than it is about political arguments with strangers, and if you want to show off an outfit, you have to jump in the air to change into it first. When in Rome!

The fact that dance is one of the major means of communication on TikTok means that its top creators have found a loophole to the perennial problem of social media, which is that the companies usually own all the content you post on their platforms. (To see this play out, consider the case of the Black photographers who recently sued Buzzfeed for embedding their Instagram BLM protest photos in a story.) 

Dance, however, is different. While TikTok owns the rights to the videos, they do not own the rights to the dances therein. This is new territory for copyright, since dance has only recently become lucrative enough to fight over thanks to social media and, of all things, Fortnite. 

When we last touched on this subject, the choreographer for the “Single Ladies” video, JaQuel Knight, had recently copyrighted the famous hand-flip dance. But even if other choreographers followed suit, many of them would lack the ability to enforce copyright over their dances. Enter: the TikTok strike.

Uniting under the hashtag #BlackTikTokStrike, Black creators refused to develop dances for newly released music because, they say, their hard work has too often been appropriated (especially by famous white TikTokers) without credit. A Washington Post article points to two dances created by Black TikTok users that were subsequently appropriated by the TikTok star Charli D’Amelio, a 17-year-old who is not only not Black, but also from Connecticut.

And while there’s no union or formal strike, observers suggest the effort is already having an impact. They note that the blackout is a major reason Megan Thee Stallion’s new song, “Thot Shit,” has failed to take flight on TikTok. 

With this in mind, I would encourage creators to start copyrighting their dances before they debut them. It’s a necessary first step before a lawsuit—plus, I like the idea of copyright lawyers across the country having to bone up on their Tootsie Slides.

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Can I Sue My Colleague for Stealing My Idea for a Party? + Other Artists’-Rights Questions, Answered


Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work. 

Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article. 

 

Now that more people are vaccinated, I have been throwing dinner parties that revolve around discussing articles in The New Yorker. (It’s sort of like a book club, but with less commitment.) We kicked it off with the profile of Ari Emanuel, moved on to a surprisingly political conversation about Robinhood and, in our latest iteration, analyzed William Finnegan’s piece on horse racing. Now, I have heard that a colleague has started her own dinner series with the exact same premise, though I assume the articles under discussion are different. My partner and I have accepted that imitation is the sincerest form of flattery, but settle an argument for us: could I theoretically copyright the concept of these dinners and sue her? 

No. And since this came from a burner email, I have to ask: are you Whit Stillman? 

I love your concept, and it is unique to be sure—but one of the tenets of copyright is that the work be “fixed in a tangible medium of expression.” Your parties are likely many things, but they don’t occur in a tangible medium of expression the way words on a page or paintings on a canvas do. Concepts cannot be copyrighted, and that’s actually a good thing, because it stops people from coming up to artists like Damien Hirst and saying, “I had the exact same idea in 1995!” Best of luck with your rivalry all the same. 

 

I heard about the Pepe the Frog NFT selling for $1 million and was shocked to learn that it’s the first one officially by Pepe’s creator. Are all those other Pepe NFTs counterfeit? 

Oh, dear. It sounds like you don’t know very much about Pepe, and it’s a wild ride. So let’s start at the beginning, shall we?

Pepe the Frog was created by Matt Furie in 2005 for a stoner online comic strip called Boy’s Club. It had a whole cast of characters, but for whatever reason, Pepe really spoke to people on message boards, and his face became ubiquitous in memes without incident for a decade. Then, more or less arbitrarily, the alt-right adopted him as its mascot, and by September 2016, the Anti-Defamation League had officially named Pepe a symbol of hate. 

All of this was detailed in a pretty good documentary that shares its name with Pepe’s catchphrase, Feels Good Man. In it, Furie appears as a kind and frustrated cartoonist who never could have guessed what would come of his simple frog drawing, the copyright to which is his. 

The thing about copyright is that it assumes, as the material circumstances under which it operates, a society where people are doing business out in the open and with accountability. And even if you don’t know much about Pepe, you do probably know that the internet is not that kind of place. The culture of authorship in general is much weaker online (for more on this, see the Lizzo answer later in this column). I think most people would be surprised to learn that Pepe has a creator at all.

So, are all the other Pepe NFTs counterfeit? That presupposes that the purchasers care if their NFT was made by Pepe’s original artist, which most of them probably don’t. I think most people in the market for a Pepe consider him to be something of a fair-use folk icon.

This is obviously a different attitude than most art collectors have. For many of them, the artist’s name is the big draw. But I think we’re learning that, while there is overlap, art collectors and NFT purchasers are two very different groups of people. It’s exciting because the NFTs that are made by “real” artists can reach a new audience, but it’s also a little scary because these folks don’t always play by the rules of the art world. We’re all learning to adapt. 

Lizzo on the red carpet at the 63rd Annual Grammy Awards, at the Los Angeles Convention Center, in downtown Los Angeles, CA, Wednesday, Mar. 14, 2021. (Jay L. Clendenin / Los Angeles Times via Getty Images)

Lizzo on the red carpet at the 63rd Annual Grammy Awards, at the Los Angeles Convention Center on March 14, 2021. (Jay L. Clendenin / Los Angeles Times via Getty Images)

I work in A&R for the pop music industry so I’ve been following Lizzo’s copyright infringement case closely. I was hoping you could explain something to me: If neither Lizzo nor the songwriters suing her came up with the line “I just took a DNA test, turns out I’m 100 percent that bitch,” then how is there still a case over who should be credited on the song?  

It’s a little ironic that after “Truth Hurts” has been played enough times to take it platinum six times over, we still don’t have a clear picture as to who, in fact, “that bitch” is. 

If you’re just tuning in, this case has been going on since 2019 and involves a spat between Lizzo and songwriting brothers Justin and Jeremiah Raisen. During a writing session for a different Lizzo song, “Healthy,” the brothers Reisen found a viral tweet about a DNA test by the London-based Mina Lioness. The Raisens suggested using it in “Healthy,” but Lizzo, as her many fans know, decided instead to use it on “Truth Hurts,” on which the Raisens are not credited, but for which they now claim songwriting credit.

Lost in this is the fact that neither Lizzo nor the brothers actually wrote the line. It was Mina Lioness, who was finally added to the credits for the song in 2019, making her belatedly entitled to some of the royalties. But the Raisens are asking for even more than that: they want joint authorship credit. Quite the prize in music, authorship credit enables the writer to exercise the copyright fully, which means they can license the song without the consent of the other authors. (That’s why most professional songwriters, like the Raisens, tend to work out rights questions beforehand.) 

Judges seem skeptical that the Raisens’s suggestion could constitute full co-authorship, but it should be noted that a single Kanye West song can have nine co-writers, some of whom might contribute only a line or two. (You’ll find more information about song co-authorship in this article by the California Western School of Law.)

The case is complicated: Mina Lioness may have typed out that famous sentence on her phone, but she wasn’t in the room with Lizzo when she was working on her debut EP. Moreover, the question of whether or not individual tweets are protected by copyright is still an open one. In the meantime, it would seem that aspiring songwriters, like the rest of us, would do well to stay off Twitter.

Andy Warhol with his Cow wallpaper at Leo Castelli (1966). Photo by Fred W. McDarrah, courtesy of Steven Kasher Gallery.

Andy Warhol with his Cow wallpaper at Leo Castelli (1966). Photo by Fred W. McDarrah, courtesy of Steven Kasher Gallery.

I’m an artist who has been asked by a patron to do a room-size installation, filled with my sculptures, in some vacant space in the West Village. I’m excited at the prospect of trying something like this for the first time. I want to contract a friend in the printmaking world to do the wallpaper for it. Is there anything I should know about copyright when it comes to wallpaper? 

Pattern design is an underrated art. Many people probably don’t realize that their favorite fashion brands employ professionals whose sole job it is to design the little detailing that runs down their sleeve. The same is true for the companies that make wallpaper, and even if these designers have signed away their individual rights to the company, you wouldn’t want to step on those toes, either. 

Until recently, I would have suggested borrowing an obscure photograph as the basis for your wallpaper—the way Warhol did with his Cow Wallpaper—since the photographer (if they are still alive) would be unlikely to argue that your work has hurt the market for theirs in the same way a pattern designer might. But recently, we in the copyright community were handed the unique case of Judy Juracek vs. Resident Evil 4.

Juracek, a photographer, is suing the Japanese video-game company Capcom for borrowing from her 1996 book Surfaces: Visual Research for Artists, Architects,and Designers. Juracek alleges that Capcom used her photographs of Italian windows and bas reliefs to decorate the rooms the players explore in their video games. Some of the accusations are pretty damning, with one shattered pane apparently having been ripped off for a game’s logo. 

I have not played a video game since Mario Kart, but I see clear parallels to your installation. What are the rooms in video games if not little art installations in which you kill zombies? The implications of this case could be wide, as it develops. I urge you to tread lightly, and ask for permission before you hang your own real-world wallpaper.

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If Khloé Kardashian Can Sue People for Posting an Unflattering Photo of Her, Why Can’t I? + Other Artists’-Rights Questions, Answered


Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work. 

Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article. 

 

Page Six says that Khloé Kardashian has been suing people to take down unflattering photos of herself. (They’re not even that unflattering, they’re just not as flattering as they could be.) People put up unflattering photos of me all the time. Can I do what Khloé did? 

We get a lot of variations on this question, and it’s understandable. Most good nights out are followed by a hungover morning spent de-tagging photos. Wouldn’t it be nice to send a cease and desist to that one frenemy whose photos of you always end up being 70 percent neck? 

You might assume that Khloé and her team have discovered a dynamic new legal strategy—I mean, look at what her dad did for O.J.—but in reality, this story just demonstrates yet again the power of copyright. 

The photo in question was actually taken by an employee of the Kardashian business and posted accidentally. “Khloé looks beautiful but it is within the right of the copyright owner to want an image not intended to be published taken down,” Tracy Romulus, chief marketing officer for KKW Brands, said in a statement.

But in addition to being, well, a little obsequious, this language implies that Khloé is the copyright owner, when we know that copyright normally rests with the photographer. If I had to guess, I would assume that the photographer who took the photo has a work-for-hire contract with the Kardashian family, in which case the copyright does in fact belong to them. 

(Why is the New York Post able to host this photo when Instagram is not? Because almost all journalism falls under the category of fair use.) 

In other words, in absence of a formal work-for-hire contract, yes, your friend has a copyright claim on your jowls. Happy de-tagging.

Singer Paul Simon performs at the New Orleans Jazz & Heritage Festival on April 29, 2016 in New Orleans, Louisiana. (Photo by Scott Dudelson/WireImage)

Singer Paul Simon performs at the New Orleans Jazz & Heritage Festival on April 29, 2016 in New Orleans, Louisiana. (Photo by Scott Dudelson/WireImage)

Paul Simon is the latest musician to sell his entire song catalogue for a tidy sum. Do you foresee a way for fine artists to cash in on this development—someday, somehow?

It’s true: Superstar musicians like Neil Young, Bob Dylan and Taylor Swift have all been cashing out in what can only be seen as a victory for copyright enthusiasts. Unlike Michael Jackson’s 1985 purchase of the Beatles catalogue, which seemed to be based in admiration but was done behind the back of his then-friend Paul McCartney, these new buyers tend to be financial entities motivated by nothing more than the value they assign to intellectual property. 

Why is this all happening now? I have my theories. It seems that collective rights organizations for musicians have been cracking down on YouTubers and Twitch streamers, which we’ve covered in this column before, as part of a broader campaign to make licensing music for internet videos just as expensive as it is for film and television. As the need for music proliferates, so do the songs’ value.  

Unfortunately, it’s hard to imagine a parallel scenario for visual artists. Musicians make money off of both performing their songs and receiving royalties from recordings. Once a painting is sold, however, copyright is all the artist has left (one of many reasons why it’s a terrible idea to sell your copyright). Much as I hate to place further weight on this bandwagon, I’m inclined to say that NFTs might actually be useful for visual artists here… Wait, don’t go! 

What excites me about NFTs is the potential for giving increased agency to the original creator. Since you can attach riders to the blockchain contract (including for a resale royalty), artists might finally be able to retain some control over their work, even after it has been sold. 

But, alas, until Twitch streamers start putting Picassos in their backgrounds, I don’t see artists making the same kind of bank from licensing their oeuvre as musicians do. 

Marina Abramović, The Artist is Present (2010). Courtesy of the artist and Sean Kelly Gallery,.

Marina Abramović, The Artist is Present (2010). Courtesy of the artist and Sean Kelly Gallery.

I’m planning on staging a piece of performance art on Zoom. Do I have to get likeness rights signatures from all of the audience members or any other kind of permission? 

The problem with performance art—besides the fact that it’s difficult to copyright—is that everyone usually leaves within the first three hours. Rude! Staging your performance on Zoom feels like a great way to allow people to drop in and out without having to make an awkward exit. 

Now for the copyright bit. Once the performance is fixed in tangible form, i.e. recorded, it is officially copyrighted and becomes an asset that you can sell (though maybe not for as much as you would like; even Marina Abramović is probably not as wealthy as you think she is).

Thankfully, the process of obtaining permission from audience members need not be onerous. Zoom has a recording disclaimer function built in, but I would suggest including a brief note in your email invitation as well. Just let viewers know that the whole thing is being recorded and may someday be displayed publicly, or perhaps even broadcast. You can also ask them to sign a simple release.

Chances are they will agree with no fuss and look forward to one day passing a monitor in a gallery and catching a glimpse of themselves in your recording. Break a leg!

Warhol's image over Lynn Goldsmith's 1981 photograph of Prince. Courtesy of Lynn Goldsmith.

Warhol’s image over Lynn Goldsmith’s 1981 photograph of Prince. Courtesy of Lynn Goldsmith.

Why did that judge rule against the Warhol Foundation in that copyright lawsuit involving the portrait of Prince? I can’t say I understand it.  

Many people are having trouble understanding it. The Warhol Foundation is appealing, and while I have not discussed the case with anyone there, in the interest of full disclosure I should say they are a client of ARS.

The case concerns a photograph of the Purple One taken by celebrity photographer Lynn Goldsmith for Newsweek magazine in 1981. In 1984, Vanity Fair commissioned Andy Warhol to make an illustration from one of the photographs, which it had licensed; Warhol went on to make 16 paintings based on the photo. Though a 2019 ruling found the works to be fair use, last month judge Gerard E. Lynch stated that the “Prince Series” “retains the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements,” and ruled in Goldsmith’s favor on appeal. 

In his own public head-scratching about this ruling, Warhol biographer Blake Gopnik reminds us in The New York Times that Duchamp didn’t do anything to that urinal when he turned it into Fountain. It is the context that made it into art, which should have been enough for the Prince work. But fair use is a tricky thing, and one of the elements that goes into determining it is the degree to which the new work hurts the market for the original. I think Warhol’s treatment of Goldsmith’s photo, if anything, enhances its value. 

In essence, I can’t really help you understand Judge Lynch’s thinking, because it doesn’t make sense to me either. We’ll be watching the appeal with great interest.

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