artists rights society

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 Resell Artists’ NFTs Like Traditional Art Dealers Resell Paintings? + 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. 

 

Can I sell or resell NFTs on behalf of artists like an art dealer would sell a painting? If it’s not coming directly from the artist, how will people know the piece is an original artwork? 

You may indeed buy or resell an NFT from a third party or intermediary. In fact, that’s a big part of their appeal. The blockchain metadata ensures the ownership lineage of your gif or jpeg, so you can see every previous owner going back to the work’s creator. It remains to be seen whether or not the secondary market is as robust for NFTs as it is for art (but theoretically the technology that makes them non-fungible should also negate the need for the provenance section of an auction catalogue)! 

A slightly thornier issue is the creation of an NFT that reproduces a physical artwork. I draw your attention to Trevor Jones’ Picasso’s Bull, which was for a time the most expensive NFT ever sold at $55,000. Later editions even saw attention on the secondary market, netting a 26x return for former MLB player Micah Johnson. 

Clearly, Jones and Johnson are profiting from the Picasso name without the consent of his estate (which is a client of ARS). Even in this overheated market moment, I would like to think that a potential buyer knows that they might be throwing money away on something that’s, at the very least, sketchy, and therefore difficult to re-sell. Authenticity is the whole point of the code that makes these objects non-fungible, so buyers and sellers would do well to ensure they’re behaving nobly at every step of the process. 

Prince Harry, Duke of Sussex and Meghan, Duchess of Sussex wave from the Ascot Landau Carriage during their carriage procession on Castle Hill outside Windsor Castle in Windsor, on May 19, 2018 after their wedding ceremony. Photo by Aaron Chown/WPA Pool/Getty Images.

Prince Harry, Duke of Sussex and Meghan, Duchess of Sussex wave from the Ascot Landau Carriage on May 19, 2018 after their wedding ceremony. Photo by Aaron Chown/WPA Pool/Getty Images.

I saw that Meghan Markle just won a copyright case against The Daily Mail for publishing a letter that she wrote to her father. Are all letters copyright protected, or just royal ones? Should I add something to my email signature? 

No, you don’t need an email signature, or consultation from the keen legal minds of the hit TV show Suits. All emails and letters are 100 percent copyright protected. You don’t have to do anything!

Markle penned the letter in question to her estranged father in August 2018, following her wedding to Prince Harry, asking him to “stop victimising [sic] her in the media.” The ever-classy Thomas Markle was so upset by the accusation that he proceeded to give the letter to one of Britain’s most notorious tabloids, the Mail on Sunday.

As longtime readers of this column know, the U.S. Copyright Office is quite clear that copyright applies to “original works of authorship fixed in a tangible medium of expression,” which certainly applies to written communication. That aspect of the law is more or less the same across the pond. (The Duchess’s letter was handwritten, to boot, which doesn’t really matter in terms of copyright, but certainly makes her father’s betrayal all the sadder.) 

There’s a reason that the letters of famous authors generate bidding wars at auction. Letters and emails can carry important, unique ideas—and wherever those lurk, copyright is never far behind. 

@slash##Repost @mothpete @download.insArtist: @psguy2026 • software: @werbleapp • animated by @mothpeteiiii]; )’♬ original sound – Slash

I animate and add effects to the artwork of other people and have a solid following on Instagram and TikTok. (I regularly have my work reposted by fan-favorite TikTok account Slash.) Can I make NFTs out of this art? Would I need consent from the original artists? What if those artists are anonymous?

First, let me congratulate you on catching the eye of Slash. That’s no mean feat.

The rules surrounding NFTs are, like their long-term value, still not firmly established. In my opinion, that’s all the more reason to play it safe and assume that copyright law for NFTs—although not yet codified by the courts—will be no different from those that apply to our tangible world. 

You should definitely ask for the consent of your collaborators before you try to make money off these animations. One of the great things about NFTs is that they often allow artists to get a portion of the resale proceeds, enabling them to benefit from the growing market value of their work. With that in mind, going behind an artist’s back is not really in the spirit of things.

I’m afraid this also goes for your work with anonymous collaborators. I’ve checked out your animations on Slash’s page and they’re really great! But I’d be hesitant to call them brand new works of art. One of the big elements of fair use is that the new work has to substantially transform the original. What you are doing, in my opinion, is more akin to enhancement.

If you make an NFT from one of those works, and it sells for a tidy sum, a judge might be inclined to grant the original artist some, or perhaps even all, of your proceeds. What if you become the next Beeple? You’ll likely secure a much more favorable split of the $69 million if you negotiate a licensing agreement ahead of time.

When it comes to copyright, the finer points can be complicated, but overall, it’s really not so different from the laws of the jungle: You can have anything you want but you better not take it from me. 

The old 5Pointz before its demolition. Photo by Rachel Fawn.

The old 5Pointz before its demolition. Photo by Rachel Fawn, courtesy of citizenM.

In 2013, I was commissioned by a building owner to paint three walls in Van Gogh’s style, reproducing some of his most famous paintings. After the building was sold years later, the new owners painted everything black. No one attempted to contact me before the murals were destroyed. Sadly, this happened about the same time as my husband died, in the fall of 2019, and my depression only deepened. I am still unable to come to terms with this destruction. Do I have any recourse to compensation? 

I’m sorry for your loss. I imagine that the loss of both your art and your husband must be linked in your mind. I wish that there was more that I can do to help, but I will try to address your question the best I can. 

You write that you based your composition on Van Gogh’s works, which are in the public domain. So while Van Gogh’s original works are not protected, I would think that nevertheless, your work would be. Although I have never seen an issue of exactly this kind adjudicated, I do believe that you have a viable claim and potential recourse through the Visual Artists Rights Act (VARA), a U.S. law designed to protect artists from the wanton destruction, distortion, or mutilation. (This law applies to any artwork created after 1990, when it was passed.) 

One notable precedent here is the case over New York’s 5Pointz graffiti mecca, in which a court ordered the developer to pay artists $6.8 million after the company painted over their work without warning in Long Island City.

But this advice applies only if you did not sign away your rights in a “Work for Hire” agreement. If I know real estate developers in New York City, it’s possible that your employer made you sign something renouncing all authorship. Alas, painting with one’s own hand does not guarantee that the work can be said to be “by” that person, as anyone who has worked in the Jeff Koons studio can tell you. 

Check the contract—if there is one—and see what it says. If you did indeed sign away your copyright (something that I always urge artists to never do), then I am afraid we will have to chalk this up to a teachable moment. 

Also, remember: the public domain might work in your favor here. There’s nothing stopping you from re-making these works, and even profiting from them, at your own pace. Regardless of what comes next, I hope you find some comfort. 

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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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Know Your Rights: Can I Make an NFT of Someone Else’s Artwork? + More 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 an artist and I’m thinking of making an NFT. Are NFTs governed by copyright? Also, what’s an NFT?

Reader, you were the 17th email about NFTs in my inbox on the day you sent this, so you know what that means: You win two tickets to a Rihanna concert at the Barclays Center! And, of course, an answer in this month’s column.

To my astonishment, NFTs (also known as non-fungible tokens) have captured the imagination of people around the world. NFTs can be made from practically anything digital—songs, Tweets, whatever. Using blockchain technology, NFTs render these infinitely reproducible items—like the song you listen to on Spotify ad infinitum—unique. 

In other words, while anyone can see and easily download the video clips that constitute Grimes’ digital artwork (of which she sold a casual $5.8 million worth through Maccarone), they would have to purchase the individual, impossible-to-pirate, limited-edition NFT version if they wanted the distinction of owning the original, collectable version. 

James Tarmy at Bloomberg wisely pointed out that this is essentially the same way the market for photography already functions, with an artist-made print fetching a price that is exponentially higher than a poster of the same image would. By way of comparison, I’ll remind you that a frenzy for tulips in the Dutch Republic in the 17th century at one point made the flowers more valuable than gold. The old adage is true: Scarcity really does create value.  

I’ve been approached by many people interested in collaborating on NFTs because my firm, Artist Rights Society, is a clearinghouse for artist copyrights. We represent over 122,000 artists and estates worldwide, so if you want to reproduce an artwork for a catalogue or make a t-shirt for your museum gift shop, the request often flows through us. And the dynamic is the same for an NFT as it is for a t-shirt: the copyright for an artwork rests with its creator (unless the creator has been dead for 70 years). 

If you’re an artist, that means you can make an NFT of your own work free and clear. If you want to make an NFT of an artwork that’s not your own, you need to go to the source for permission. 

Dollhouse at Musée Grobet-Labadié Virtual Tour © Courtesy of Manifesta 13

Dollhouse at Musée Grobet-Labadié Virtual Tour © Courtesy of Manifesta 13

Our museum is still closed and as we consider the long-term effects the pandemic will have on museum visitation, we would like to add more virtual components to our exhibitions, including 3D walkthroughs and extended online tours. How should we approach licensing in this situation? Should we seek permissions for reproductions in the same way we would for a print pamphlet?  

First, let me thank you for your caution. We’re keenly aware that our partners in the museum world are in need of admission funds, and it’s great that you’re encouraging visitors to return at the pace that’s right for them, and for everyone else.

Museums have gotten increasingly creative in recreating their shows for viewers at home—but you’re correct to wonder about the right to reproduce content because, as readers of this column know well, ownership of an artwork rests with its creator rather than its owner. Anything you’re planning needs to be approved by the artist, their estate, or a collective rights organization like ARS. 

I recommend thinking about virtual exhibitions in the same way you would think about reproducing works for print: you need to go to the same people for authorization. 

The big caveat here is that copyright endures the life of the artist, plus 70 years post mortem. So if you’re a museum with many older works like the Metropolitan Museum of Art, you would already be in the clear. Best of luck with this and with your reopening. 

Photo Illustration by Omar Marques/SOPA Images/LightRocket via Getty Images.

Instagram photo Illustration by Omar Marques/SOPA Images/LightRocket via Getty Images.

How should you deal with people who share your work on Instagram but don’t tag or hashtag you (specifically, influencers who make money from the site)?

I’m sorry to hear you are having this problem. Instagram has opened many doors for many artists—but of course, nothing comes without a price. We get this query from artists time and time again. 

Let’s start off by discussing your rights. Six photographers are currently suing Buzzfeed over its use of their images of this summer’s Black Lives Matter protests. But Buzzfeed’s actions may, unfortunately, be acceptable thanks to what one judge called “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” that is implicitly granted by posting to Instagram. 

That situation sounds a bit different from your problem, however. It seems that higher-profile users are either passing off your own Instagram photos as their own or photographing your work without giving you credit. 

The latter concerns your “display rights” as a copyright holder. It’s a surprisingly tricky issue because there isn’t a ton of case law established here. There are a number of questions to consider: For starters, has the person photographed your work in a way that might be considered transformative due to their own creative input? To what extent is the photograph about your work, and to what extent is it about the influencer? (If the influencer is taking up more than 50 percent of the image by, say, posing in front of your painting, the photograph may be considered more about them than about your work.) Is the image likely to hurt your market? (An argument could be made that by even unwittingly sharing your work, the influencer is boosting your profile.) 

You can see how complicated this gets. For more, allow me to direct you to this lengthy article by Herrick, a law firm that often works with the art world, about photographing works for catalogues. It’s a good, if flawed, analogy.

Now for the former scenario: If the person in question is taking your Instagram posts and claiming them as their own, we’re in more of a FuckJerry situation. Even there, however, the law is unclear because it’s hard to prove the extent to which the thief benefitted from your specific piece of content. A plaintiff who tried to prove Jerry had stolen the image for a particular sponsored post dropped his case in 2019 because he was, it turned out, “almost certainly not the original creator” himself.

Regardless of the specifics, I would try reaching out to the user in question. More often than not, this is a simple misunderstanding. And in my experience, Instagram is rarely worth a lawsuit, even if you’re Kanye West. 

Jeff Koons’s sculpture Fait D’Hiver (1988). Photo by Ralph Orlowski/Getty Images.

Explain Jeff Koons to me. Sometimes he wins lawsuits, sometimes he doesn’t. He just lost one in France but that hardly helps to explain things. Explain Jeff Koons to me, please, somebody. 

First, I’d like to put forth a personal theory that, from a creative standpoint, Jeff Koons welcomes being sued. Don’t buy it? Koons once “created” framed posters that have been made by Nike, a company well known for its rigorous lawsuits against infringements. Koons went so far as to call the works “originals,” even though they were unmodified. The guy clearly gets off on being a copyright provocateur. 

So what makes a successful Koons lawsuit? Your guess is as good as mine. The French lawsuit you cite in your question centers on Koons’s Fait d’hiver. The image is copied from a magazine advertisement, albeit a very French one, in which a pig sniffs a gorgeous woman in the snow. Sounds familiar? Consider Blanch v. Koons, which we discussed last year. In that case, Koons took a copyrighted image of a woman’s leg and feet that he found in an American issue of Allure. 

Elisabeth Bonamy, Franck Davidovici, and William Klein’s “Fait d’Hiver” ad campaign for Naf Naf (1985).

The Blanch case found Koons guilt-free of copyright infringement, with the American court arguing that the original image was, curiously, too “banal” for protection. This latest suit, which occurred in France, didn’t work out for him because the laws in France tend to favor creators more than those in the States. It also couldn’t have helped that everyone’s a bit down on him over there at the moment. Mon dieu, indeed. 

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