1. Rogers vs. Koons
Photograph: Art Rogers – 1985; Polychrome: Jeff Koons – 1988 (both via The Design Observer Group)
Photographer Art Rogers shot a photograph of a couple holding a line of puppies in a row and sold it for use in greeting cards and similar products. Internationally, renowned artist Jeff Koons in the process of creating an exhibit on the banality of everyday items, ran across Rodgers’ photograph and used it to create a set of statues based on the image. Koons sold several of these structures, making a significant profit. Upon discovering the copy, Rodgers sued Koons for copyright. Koons responded by claiming fair use by parody.
The court found the similarities between the 2 images too close, and that a “typical person” would be able to recognize the copy. Koon’s defense was rejected under the argument that he could have used a more generic source to make the same statement — without copying Rogers’ work. Koons was forced to pay a monetary settlement to Rodgers.
This is one of those famous cases that encompassed a larger issue in the art world, the issue of appropriation art. Can you build upon another’s work to create your own original piece? And if you do so, does that constitute derivative work? It also brought up the issue of photography as art, was photography just a documentation of the world, or is it a creative and artistic product? Neither of these issues was entirely answered by the case, of course, but it has also become a reference used in many cases afterward.
You can parallel this with vector-tracing a photograph for your design. Are you creating a derivative work that subtracts value from the original artist?
2. The Associated Press vs. Fairey
Photograph: Mannie Garcia – 2006 (via The New York Times); Poster: Shephard Fairey – 2008 (via Wikipedia)
Famous street artist Shephard Fairey created the Hope poster during President Obama’s first run for presidential election in 2008. The design rapidly became a symbol for Obama’s campaign, technically independent of the campaign but with its approval. In January 2009, the photograph on which Fairey allegedly based the design was revealed by the Associated Press as one shot by AP freelancer Mannie Garcia — with the AP demanding compensation for its use in Fairey’s work. Fairey responded with the defense of fair use, claiming his work didn’t reduce the value of the original photograph.
The artist and the AP press came to a private settlement in January 2011, part of which included a split in the profits for the work.
Though there wasn’t a court case and an actual verdict, this case created a lot of discourse around the value of work in these copyright battles. It’s unlikely that Garcia’s work could have ever reached the level of fame it did, if not for Fairey’s poster. Garcia himself stated he was “so proud of the photograph and that Fairey did what he did artistically with it, and the effect it has had,” but still had a problem with the fact that Fairey took the image without permission and without credit for it’s originator.
Credit, credit, credit! On 99designs you cannot use licensed work — but in the right circumstances you can use stock imagery. When doing so, make sure everyone knows the source.
3. Cariou vs. Prince
Photograph: Patrick Cariou – 2000; Adaptation: Richard Prince – 2008 (both viaartnet)
Richard Prince is a well known appropriation artist — one who transforms the work of others to create new meaning in his own work. For an exhibition in the Gagosian Gallery, Prince appropriated 41 images from a photography book by French photographer Patrick Cariou, claiming fair use that he created new meaning out of the photographs. Cariou argued that it wasn’t fair use, but copyright infringement.
A judge ruled in favor for Cariou in 2011, claiming the changes made to Cariou’s photographs weren’t significant enough to constitute a change in meaning — fair use. Following appeal, the original decision in this case was overturned and the judge ruled in favor of Prince for the majority of the works in dispute, claiming that Prince’s work transformed the work in the way that it was aesthetically different, and thus acceptable under the argument of fair use.
The initial ruling in this case in favor of Cariou has created huge divisions in the artistic community. It brings up questions about artistic intent and the subjectivity of art, asking “who was this judge to determine whether or not the appropriated artwork had enough meaning to be considered fair use” when the art could be interpreted differently by each person who viewed it. The reversal brings into question the original greel concept of intellectual copyright.
Imitation vs. inspiration
Don’t be a designer who creates work too close to that of another. You have to make sure you are creating something original and not derivative.
4. Modern Dog Design vs. Target Corporation
Illustrations: Modern Dog – 2008; T-shirt: Target (both via Business Insider)
Seattle design firm Modern Dog utilized a series of sketches of dogs in their compendium put out by Chronicle Books in 2008. The firm alleges that illustrations from that design have been used in a T-shirt produced by Disney/Target for sale, and filed a lawsuit in 2011.
TBD. There hasn’t been a decision yet in this case but Modern Dog has been campaigning online pretty heavily for publicity and funds to help with its legal fees over the issue.
The Modern Dog case has brought to light a question burning in the mind of many designers and artists — what happens if a major corporation with many more resources than me, utilizes my artwork for profit? Modern Dog was recently forced to sell their studio to cover the legal costs associated with this battle, so it’s turning into a very extreme situation for them. We’ll have to keep an eye out for how this progressed and continues to change the conversation around this issue.
Always defend your designs. Regardless of who you’re going up against — if you think your design is in the right, then make it known.