When I was a full-time commercial artist/illustrator, I spent a lot of time educating clients about copyright. For example, a client might come to me with an idea, like "This is an article about peace; let's use a dove in the illustration" and then they would assume that they should own the completed illustration because it was based on their idea. Never mind that their dove idea was completely unoriginal, I would still have to explain that you can't copyright an idea, only a particular expression of an idea, so that expression belonged to me, by law. I learned to think of copyright not as a single right, but a bundle of rights that I could sell one by one, for various negotiated prices. For instance, I could sell reproduction rights for a certain time period, or for print only, or web only, or only for a certain audience (domestic but not international) etc. If the client wanted 'ownership' of the copyright, they would have to pay for that right.
Now that I'm doing fine art, however, I've developed a very different sense of copyright and image-making. As a fine artist I consider my task not to create images for commercial resale but to create images that are about images, images that are about the society I live in. No matter where the images come from, or who created them, certain images become iconic in our hypervisual cultural milieu. Certain images come to signify an entire event, and become shorthand for it. Like these:
I think of these kinds of iconic images as part of our public record, part of our visual commons.
This week a well known European artist, Luc Tuymans, was convicted in Belgium of plagiarizing a news photo (plagiarism seems to mean copyright infringement in Belgium), and I'm guessing that the photographer who sued Tuymans is thinking about copyright in the way I used to think of it when I was an illustrator. She (and her lawyer) are right, Tuymans did use her photo as reference for his painting. He doesn't deny this. I completely understand the photographer's fierce desire to protect her right to make money from her work. And yet, as Tuymans's lawyers wrote in a press release, “How can an artist question the world with his art if he cannot use images from that world?”
These are competing needs, the needs of the photographer to be compensated for her work and the needs of the artist/painter to comment on current events. This is the arena in which I really understand that commercial art and fine art operate in different worlds. Personally, I think the fact that the photo is of a public figure and that it appeared in a newspaper (not actually sure if this is true; it's called a "news photo" in the press) makes it fair game for artistic commentary. Yet, I sympathize with the photographer's sense that she should be compensated, or at least consulted, given that the painting is a close re-rendering of the photo. The NY Times article I linked to above states that the photographer tried numerous times to contact Tuymans, and I think that it was stupid of him not to respond.
These are complicated questions with no easy answers. I lean toward the rights of artists to freely comment on our visual culture, including appropriating copyrighted works, but I'm also sensitive to the needs of freelance commercial artists who have only their copyrights to keep them from insolvency. I often use public domain historical photos to avoid copyright problems, but if I use a contemporary photo I try to get permission if I'm closely copying it. I'll
admit that if I'm not copying it closely, I let it slide. In the U.S. we have a category in copyright law called "fair use," which can cover such things as news photos and visual citation, but it's still a gray area at best. As a so-called political artist who used to be a commercial freelance artist, these issues hit close to home for me.