A Copyright Violation???

This is the email we received two weeks ago from the Manager of Intellectual Property for the Estate of Roy Lichtenstein:

“Dear Elsinore Music,

You have adapted a Roy Lichtenstein image for the cover of your new album.  This is a copyright violation.  Please contact me.

Sincerely,
Shelley Lee
Manager of Intellectual Property
Estate of Roy Lichtenstein
745 Washington Street
New York, NY 10014
T (212) 255-4570 x105
F (212) 727-3138
shelleylee@estateofroylichtenstein.com
www.lichtensteinfoundation.org

“The painting we are using for our album cover was done by Brittany Pyle in a college painting course. She told us initially that it was a piece influenced by Pop art, but didn’t mention anything about her source image. After we received the email from Shelley Lee I talked to Brittany again and she told me that she hadn’t appropriated from Lichtenstein. Her professor had instructed the class to do an appropriation piece, and Brittany chose the same original graphic novel piece that Roy Lichtenstein used when he created his piece Kiss V:

Here is the graphic novel piece both artists used as source material(left) presented next to Lichtenstein’s piece(right):
Source: http://davidbarsalou.homestead.com/LICHTENSTEINPROJECT.html

Finally, here is Brittany’s piece:
So, the question is do we not use Brittany’s painting, the piece that 18 months of design work have been crafted around, because the Manager of Intellectual Property of a famous Pop artist who also appropriated from the same source image says we can’t? Brittany’s painting certainly appears to be an appropriation of the uncopyrighted(?) graphic novel piece as opposed to an “adapted…Roy Lichtenstein image” as Ms. Lee has stated. We haven’t pressed the album yet, so we just need to know whether or not we CAN use the image based on its appropriative properties. What IS the answer here??????

Here are some links that have helped us gather this information and/or put wind in our sails:

http://davidbarsalou.homestead.com/LICHTENSTEINPROJECT.html

http://en.wikipedia.org/wiki/Appropriation_%28art%29

http://online.wsj.com/article/SB10001424052748704423504575212452107778906.html

xo,

ELSINORE

39 thoughts on “A Copyright Violation???

  1. ds

    Like, I was at a party and, uh, a friend of mine – a COP – looked at that copyright violation letter, and HE PUKED. And he said, uh, you guys can use the album cover or, uh, he’ll press charges.

    Reply
  2. Chris Blundell

    I would ready a carefully worded letter, if you have a friend who has anything to do with law then speak to them about it. I can imagine that they have no right to claim that you have re-envisioned Roys work when it seems that it’s more likely a re-envisoning of the original artists work. However, that still means that you’re using someone elses work as source material, so you’re going to have to pay someone money.

    Reply
  3. Mike

    I call BS. Remember, they can *claim* anything they want, but that doesn’t automatically make it so.

    Yes, it resembles the painting, but it’s also been changed considerably from the original work. In fact, everything is different- the colors, the eyebrows, the tears, the hair, the lips, the shading…the *pose* is the same, and that’s about it. Roy has no copyright on two people holding each other. I bet you could find that pose in a thousand comic books in a thousand variations.

    By Ms Lee’s definition, if I was to hold my wife like that and take a picture, I’d be in “violation”. And that’s baloney. I’d say, “See you in court” and see just how many millions of dollars they’re willing to spend to try and stop this “similar but not the same” bit of artwork.

    Reply
  4. Brian McGovern

    whoa! Saw your guys’ album cover on the front page of boing boing and did a double take.

    I think there’s more than a strong enough case to say the image was appropriated from the source comic, but that doesn’t mean they couldn’t take legal action. I imagine that means some serious legal fees…but like the comments say on boing boing, that means some nice publicity for the band.

    Ah! Sorry guys, hope it gets worked out as painlessly as possible. I know plenty of people who are itching for your record, I’d hate to see it delayed.

    Reply
  5. df

    I would contact Ms. Lee and quite politely inform her that she is mistaken and that the source material is the original comic work. Your cover is closer to the original than it is to the Lichtenstein (hair color, shading, etc). She likely sent out the letter reflexively. I wouldn’t presume she’s immune to reason.

    Reply
  6. Alessandro Cima

    Do not respond to the letter. Use your image. They have absolutely no case whatsoever and they know it. Another thing, if they do sue you, you don’t need an attorney to argue your case. Do if for free on your own and you will win.

    Reply
  7. RustyBadger

    She doesn’t stand a chance. All she’d be doing is wasting her client’s money if she pursued damages in this, as you’re clearly in the right.

    FWIW, I’m not a copyright lawyer, but I *am* the Copyright Officer for our school district, so I have had some training in the area. The court would only have to take one look at the original and you’d be scott free- but make sure you inform them ahead of time you’ll be seeking costs, plus compensation for slander.

    This threat probably breaks any anti-SLAPP legislation your state has in place, as well.

    Reply
  8. Jordan Crane

    Lichtenstein’s estate can go fuck themselves. That’s ridiculous. Print the album, if they want to go to court, go. Represent yourself. You’ll probably lose, but they will lose more. And you’ll get a bunch of free publicity for it, and it will call attention to the hypocrisy of the whole affair. Lichtenstein didn’t get sued by the big comic publishers, and you shouldn’t get sued by him. Fair play, advancement of culture, copyleft, etc. do it.

    Reply
  9. Jupiter

    Ms. Lee doesn’t have a leg to stand on and backing down is the wrong thing to do. We can’t let content owners intimidate everyone willy nilly. That’s why we have a court of law, although I doubt this case would ever get that far. If so I hope the internet comes to your aid.

    The copy-terror society we live in shames me every day. You should be afforded the same freedoms Lichtenstein had when he COPIED another artists work.

    http://www.boston.com/news/globe/living/articles/2006/10/18/lichtenstein_creator_or_copycat/

    Letting them push you around with legal threats only emboldens them and makes it worse for the whole world.

    Reply
  10. James

    the lawyer is trolling for fear. don’t bite. man up and move forward. i like chemicals. good luck with the album!

    Reply
  11. Scott Edelman

    If you need donations to your legal defense fund, put out the call. Lichtenstein used the art of his betters without attribution, and his estate shouldn’t be allowed to trample you. Good luck!

    Reply
  12. Thomas Paluchniak

    I am an attorney, but I do not practice copyright law. I have, however, taken a couple of copyright classes in law school.

    My take on it is that if the orignal work was in the public domain [e.g. the copyright expired], then anybody could freely copy the original work, including Lichtenstein and your artist. The new works would not be copyrightable as they would be derivative works of the original. That means if anybody appropriated your alblum cover, you couldn’t claim copyright infringement just like Lichtenstein likely is in the wrong for doing the same.

    My guess is that you have a strong defense to any lawsuit. You should call the EFF and see if they could help you.

    Reply
  13. LqqkOut

    I would contact a lawyer to see

    1) If you could likely win a case if you get sued. (This will be a lawyer’s – rather than a judge’s opinion – so it’s not final)

    2) If you should respond to the letter or wait for further action before spending a lot of time, money, and effort on the issue.

    It might cost the band a bit of money up front (esp if the lawyer writes the response letter), but doing the research ahead of time might save a lot of headache in the end.

    If all else fails, check to see if a parody of Lichtenstein’s piece would be protected under copyright law and stick it back to them!

    Reply
  14. Pingback: Clever Ruse - Appropriated Art

  15. jp

    If the estate is serious then get a lawyer as soon as possible to defeat the claim. Perhaps a strongly worded letter written by an attorney could make this all go away. The faster you get rid of this problem the cheaper it will be. Going to federal court without a lawyer is stupid idea, especially when you have such a good defense. Federal court is not small claims court, representing yourself would be an expensive lesson.

    Reply
  16. Tim

    Don’t back down. The letter is a tactic used to minimize copyright infringement, and since sending a letter entails no cost to the sender it is a cheap way to frighten the uninformed. If it were a serious case, the letter would have been a cease and desist letter. The fact that it wasn’t is significant.

    Don’t back down. If you respond (at all) have a lawyer send a strongly worded response outlining how weak their case is.

    Reply
  17. Christine Valada

    I am a copyright lawyer.

    The first thing I would do is check on the copyright of the underlying material. If it is in the public domain, I’d write your letter to Lichtenstein’s copyright manager and tell them to go screw themselves because your material is based on the underlying art.

    However, if it is NOT in the public domain, I’d write a letter to them pointing out that Lichtenstein appropriated his image from someone else’s copyrighted material and you will be sending a letter to said copyright holder to let them know this.

    While Lichtenstein may have gotten away with what he did in his life-time, the tide has turned on this kind of appropriation. Just ask that thief Jeff Koonz who has been stopped in his tracks by Jim Davis, among others (Art Rogers, for example.)

    If the underlying material is protected, I suggest you not use Brittney’s painting either because what she has done is an unauthorized derivative work or the original. This may be perfectly fine as a one-off classroom project, but you don’t get to reproduce it without permission.

    And I so wish that Tom had identified the source of the original material so we’d all know where it came from. I don’t have the time to look through the tens of thousands comics in my garage.

    Reply
  18. Scott Mercer

    Odds are very good that the underlying image (original graphic novel) is in the public domain. Check the title and date of publication. If it was a) originally never registered, or b) registered with a faulty notice, or c) never renewed after 28 years (if originally published before 1964), then it is public domain. You have two different places to check in the copyright registration books, the original year of publication, and 28 years after that. Most large city libraries should have copies of the copyright registration books. If not, you might have to go to Washington, or, pay a proessional to research this for you.

    My feeling is that they can’t touch you. They got nothin’.

    Reply
  19. rick

    Another issue is whether or not the pressing plant/printers will reject your artwork because they don’t want to be involved in a lawsuit (regardless of whether or not the claim valid). So you would not only have to stick to your guns but also have to find a manufacturer who will take a stand with you.

    Reply
  20. AW

    The answer is this.

    He can only claim copyright to his interpretation of the artwork. The image has a lapsed copyright which would place it in the public domain which means that you could use the exact source image for your cover if you wanted. Your friend who painted the picture maintains copyright on her work only. However anyone could copy the source image.

    The case for copyright in either of the pieces of art is weak because neither of the pieces of work are transformative enough, or add enough to the piece to be considered a separate work.

    All this said your artist copied a public domain image. There is no basis for a claim of copyright on a minimally changed image of a public domain image. See the ruling in the following link

    http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

    Some information for your defense
    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html
    http://en.wikipedia.org/wiki/Fair_use
    http://www.artsandbusinessphila.org/pvla/documents/TransformativeWorks.pdf

    Reply
  21. AW

    A quote from the Bridgeman V Corel Case:
    “[T]he law is becoming increasingly clear: one possesses no copyright interest in reproductions … when these reproductions do nothing more than accurately convey the underlying image”

    Reply
  22. Bryce

    Although only a law student and not a copyright lawyer — and this is definitely not legal advice — I’m going to disagree with Christine Valada here.

    The issue of whether Lichtenstein’s works infringed on the original comic copyright is irrelevant here. If you were the holder of the copyright in the original comic and wanted to sue Lichtenstein, it might matter… but you’re not. Sure, you might try to use this as leverage, but if nobody has sued Lichtensteing yet, they’re probably not going to, and the statute of limitations has probably tolled, anyway.

    The real question is whether Lichtenstein could copyright his painting, and what he can claim copyright to. I suspect he probably has a very good argument that his selection of the panel, as well as any cropping, are original contributions to his painting, and that they are copyrightable elements. This is especially the case since I imagine comic books are usually registered with the copyright office as a whole, and that individual panels are not registered and are not considered to be individual works. If his editorial selection is considered original enough to allow protection (and the standard for originality is quite low), then Lichtenstein has a pretty darn good case for copyrighting his choice of selection.

    Then the question becomes one of whether you are infringing. You’ve written enough about this on the web, I think, for it to be indisputable that the artist was familiar with Lichtenstein, and that she had access to the Lichtenstein in question. This will make it very difficult to argue that her painting was a totally independent creation (independent in the sense that she independently came to make the painting solely by means of her own inspiration and comic book knowledge). This should be enough to satisfy the “copying in fact” element of infringement.

    The second element of infringement is “substantial similarity,” which is usually determined by the jury. Basically, it asks whether a reasonable person will think the two works look similar, and give the same impression. Even if a jury is directed only to look at the independently copyrightable aspects of the Lichtenstein in comparison to your painting (such as then angle, the changes he made to the inking, etc.), I suspect most jurors will find that the cropping of your painting is substantially similar to his, and that your painting infringes.

    Also, the belief that this solely centers on whether the original comic art is under copyright is totally erroneous (especially since you don’t seem to be being sued by the holder of that copyright): Lichtenstein can still have copyright over his contributions to his painting, even if the original image is out of copyright (just like I can paint a copy of The Last Supper and still have copyright over my version, even though the original is out of copyright).

    Reply
  23. Fairuser

    This is going to be a headache, but you should definitely keep the cover. You have much more than a fighting chance on this one– even if she had directly freehand copied the Lichtenstein painting. See: Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. [wikipedia source] Translation: the Lichtenstein painting itself might not have copyright protection because Lichtenstein copied a public domain work. Caveat: it’s unclear that this graphic artist’s work is in the public domain, which means

    More practically: Yes, it would help to find out that the original is in the public domain (see Scott Mercer’s point about registering copyrights, but be aware that you don’t have to register copyright for it to exist; you just need to have registered it to sue). If it’s not in the public domain, contact the comic book publisher, because they likely hold the copyright from the artist. If the publisher is defunct, then go back to the author- if you can’t find them, the original is an “orphan work”.

    See also the description of “Fair use”, which would take Britney’s painting out of being a “derivative work” and is a colorable argument:

    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

    Not great case for you: Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).
    But see: Blanch v. Koons, 2005 U.S. Dist. LEXIS 26299 (S.D.N.Y. 2005).

    If you do go to court, do it in Southern District of New York. They seem friendlier to your claims.

    Reply
  24. Fairuser

    And just to add to my previous post: yours is the kind of argument a lot of folks would get behind. As in: reach out to Stanford law school or EFF.

    It’s like this, only without fabricated evidence:
    http://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster

    Further supporting that Brittany’s painting is fair use: I hadn’t read the clear parody language below (“Oh Charles, I thought you’d be gay forever!”) The copyright killer question would be, if the original is still under copyright and not in the public domain: does the fact that you’ve changed a fair-use-parody work to where it more closely resembles the original take it out of the class of parody?

    Reply
  25. Chaz

    Is every comic book from the past called a “graphic novel” now? I thought that meant long-form works.

    Reply
  26. Pingback: 3 Count: Survey Says | PlagiarismToday

  27. Pingback: Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original? | It's... just a dot

  28. Pingback: Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original? | Techne.ws

  29. Pingback: Mr. Topp and the Big Bad Blog » Links, featuring robot murder and suspicious minds

  30. Pingback: WordpressAutoblogging»www.hairlosstreatmentfast.com–Website… | Nice Day

  31. Pingback: Links 8/5/2010: Wine 1.1.44 is Out, RHEL 6 Beta Reviewed | Techrights

  32. Pingback: THE CELL PHONE SHOP » Blog Archive » Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original?

  33. km

    You probably have this info by now, but just in case it hasn’t gotten to you yet, I strongly suggest you contact the Electronic Frontier Foundation (EFF) for support and guidance. While many of us can offer emotional support and advice, these are the folks with the actual know-how. Their website is: http://www.eff.org/

    Reply
  34. Pingback: The Sound Of Indie

  35. Nikki Hebert

    [...] Interesting side note: the cover of their new album has provoked some fair-use controversy.  You can check out the issue in a post to the blog on their website. [...]

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>