Although one can greatly admire the ingenuity and professionalism of both photographer Sandro Miller and “legendary Hollywood A-Lister John Malkovich” (I had to look him up, but that just shows how out of touch I am) and presumably also the makeup artists etc involved, the work in ‘Malkovich, Malkovich, Malkovich: Homage to photographic masters‘ recently shown at the Catherine Edelman Gallery and on sale as ‘pigment prints’ (which almost certainly means inkjet prints using pigment-based ‘inks’) in editions of 35 + 5 artists proofs at prices from $3,200 to $12,000, raises a number of questions.
In his discussion of the work in The Photographer and the Painting (5), A D Coleman looks mainly at the copyright angle, and whether the aping of famous images by well-known photographers, mainly still in copyright, could possibly constitute ‘fair use’ under US copyright law. Although careful to disclaim any legal expertise, he details his thoughts on the subject using the University of Minnesota’s online ‘Thinking Through Fair Use‘ which appears to me to be very useful tool. Though again they add a clear disclaimer: “it does NOT tell you whether a proposed use is fair or not, and does NOT provide any kind of legal advice. It simply helps you structure your own reflections about the fair use factors, and provides a record that you did consider relevant issues.”
Coleman also provides a link to Bored Panda which publishes 16 pairs of images, putting the remake by Miller/Malkovitch next to the original images which have been recreated, so you can judge how closely they have acheived the aim of reproducing the original works.
My initial reaction to these image pairs was “how very clever, but how entirely pointless“. And on further reflection, I think it was absolutely correct. What is the point? Other than of course to make money for Miller and the gallery (and perhaps Malkovich, who with more than 70 films under his belt, a video game and an Italian clothing line surely doesn’t need it?) And Coleman questions “The creative ethicality, if I may call it that, of generating such straightforwardly replicative ‘derivative works,’ even if legal questions don’t pertain.” Absolutely so.
What is perhaps most surprising is to learn from Coleman not only that Miller informed him that he took legal advice which told him thatthe work would be covered by “fair use”, but that the possible legal problems have not been mentioned in the many publications on the work which he lists in his post. I don’t expect it’s possible to sue lawyers for their advice, but if so I think it fairly likely that Miller may have to do so. But of course I’m not a lawyer either.
I imagine the images will sell, if only because a man who has been in over 70 films must surely have fans, some of whom are sure to have more money than sense. As a commercial proposition it would seem to make sense, but it is the commercial possibility that seems to this non-lawyer to be both something that makes ‘fair use’ far less likely to apply and also to greatly increase the chances that one of the rights-holders in the 40 out of the 42 images not in the public domain will sue.
When I taught photography, it wasn’t unusual for students to copy or attempt to copy works by well-known photographers, though usually their efforts were usually so different from the originals despite their intentions that there would have been zero danger of a law suit. But after they had done so, I would discuss with them what they had learnt from the exercise and tell them to go out and make their own work. We all learn by ‘beg, borrow and steal’, or to put it more positively, exploring the tradition and becoming a part of it, but our aim should surely be to contribute, rather than simply replicate the work of others.
I came across another case which is more debatable on Sunday, when a photographer pointed out in an online forum that a picture of sculptor Hans Haacke holding up his design for the new sculpture on Trafalgar Square’s fourth plinth published in The Guardian and attributed to “Hans Haacke/VG Bild-Kunst. Courtesy of the artist and Paula Cooper Gallery, New York” was rather similar to one he had made earlier and that was published in the New York Times last October.
There are of course similarities as you can see from the links above. It is the same man, and he is holding up the same drawing. And being known for his dislike of having his face photographed he is holding the drawing in front of most of his face. But there are also clear differences. In the image in the Guardian the framing is portrait which I think better suits the subject, and Haacke holds the image up with two hands instead of one. He also carefully holds his drawing so that none of the horse is obscured, and the photographer has shown rather more of his black glasses, the arc of which at the left of the white print is important in the image.
There is a delicate line to be drawn. I’ve photographed Tower Bridge many times, but would not claim any breach of my rights in anyone else’s photograph of that building, even if taken from exactly the same position. For the photographer to have a valid claim I think he would have to persuade a court that Haacke had never ever held up a photograph or drawing in front of his face before, and that he was the first photographer ever to have got him to do that – or perhaps even to have got any other artist to do the same thing. It would be tough.
I’ve taken far too many pictures of people holding things in front of their faces, usually when I don’t want them to, but also on a few occasions when people haven’t wanted their face to be shown. Resemblance it seems to me isn’t enough, there has to be some real originality to claim infringement, and for me the idea isn’t orginal enough and the similarity perhaps not close enough. Of course a court might see it differently. Again, IANAL.
There was clearly an originality about Doisneau’s ‘Picasso and the Loaves‘, with two “main de Nice” replacing the painter’s hands, and it’s something that has been reused by some others, in a way that I think is fair use. But I dimly recall a case where Doisneau’s estate prevented a rip-off of this image being used in an advertisement.