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:
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.