Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original?

from the riddle-me-this dept

Here’s a fun one found via Boing Boing. It involves a band, named Elsinore, that is about to put out an album and has run into a rather bizarre copyright issue that highlights some of the insanity in today’s copyright law. For the cover of the album, they used a painting done in an art class by a friend of the band named Brittany Pyle. You can see it here:

If this looks somewhat familiar to you, it may be because you’ve seen one of famed artist Roy Lichtenstein’s paintings, called Kiss V. An image of that painting is here: Now, just before the album was to be released, the estate of Roy Lichtenstein sent Elsinore a note, claiming that their cover infringed on Lichtenstein’s copyright, and suggesting the estate was not at all happy about this. Somewhere along the line, the band went back and spoke to Pyle, the artist who did the painting they were using, and she explained that she had not actually copied the Lichtenstein painting at all, but as part of her art course about appropriation art, she was told to do a piece of appropriation artwork, and rather than appropriate Lichtenstein directly, she chose to appropriate from the same source material Lichtenstein had used. Lichtenstein was not particularly forthcoming about his own original sources, but a guy named David Barsalau has apparently spent years scouring old comic books to find the original images which Lichtenstein originally used, and has put them together in a project he’s called “Deconstructing Roy Lichtenstein.” His research turned up the following as the original source: If you look closely, it quickly becomes clear that Pyle did, in fact, use the original as her source. There are a few key points in the image that makes this clear. For example, in the original and in Pyle’s there’s a line directly above the man’s eyebrow. That’s not in the Lichtenstein version. The woman’s hair in the original and in Pyle’s is very similar (beyond just the color). In Lichtenstein’s it’s different (in his, the woman’s hair appears to be longer, whereas in the original and in Pyle’s you see the ends of her hair curling up). In the original and in Pyle’s you see a shadow beneath the point where the index finger and middle finger meet. That does not appear in Lichtenstein’s.

Based on all of this, many folks in the comments to both the Boing Boing post and the band’s post say that the Lichtenstein estate has no case at all. But… copyright law isn’t quite that simple (and there are a few complicating factors). First of all, there’s some question concerning the copyright on the original work. No one seems to know exactly where it’s from. The only version people point to is the one that Barsalau has highlighted, but he doesn’t seem to indicate the source as far as I can tell. And, to make matters worse, everywhere you find Barsalau’s work on Deconstructing Roy Lichtenstein he has copyright notices all over everything. No, I’m not kidding. I’m not sure how he can claim copyright on any of that, but for right now that issue is probably secondary, unless somehow he really does own the copyright on the original, and can make a claim against… well… both Pyle and Lichtenstein’s estate.

Leaving that aside, though, while common sense would suggest that the estate has absolutely no case, copyright covers the unique expression in an image, and one could potentially argue that Lichtenstein’s work did some unique things from the original image… including (potentially) the decision of how to crop the image. Since no one seems to actually show the full source image, we don’t know if the comic book image is cropped in the same way, or if that was, potentially, an artistic choice by Lichtenstein. If that’s the case, the estate could make the argument that the copyright they hold is on the cropping choice, and while Pyle may have copied the image itself from the original, she copied the crop from Lichtenstein. Would that actually stand up in court? One would hope not, but stranger things have happened.

That said, the whole thing really is fairly ridiculous no matter how you look at it. It’s ridiculously obnoxious for an appropriation artist, who relied on infringing on copyrights quite regularly to then turn around and claim that someone else infringed on his copyrights (or, in this case, to have his estate do the same thing). It’s particularly obnoxious to basically say it was okay for Lichtenstein to do it to others, but anyone doing it to Lichtenstein is not allowed. And I won’t even get into the ridiculousness of Barsalau then declaring copyright on his own efforts of matching Lichtenstein’s work to the originals. Either way, it seems pretty silly that the band may now need to go find themselves a lawyer just to use a piece of artwork for their album cover.

Filed Under: appropriation art, brittany pyle, copyright, david barsalau, elsinore, roy lichtenstein