Thursday, January 19, 2006

Not so Flattered (Theft in Artmaking Open Thread)

I've had a few requests for an open thread on theft in artmaking. The following account is typical of why folks want to discuss this:

[T]heft [is] often done by someone with more power and resources than than the one they're stealing from, making it difficult to call them on it. It's happened to me, and yes, now I would handle it differently, but at the time I was inexperienced (which the thief knew and counted on) and I couldn't quite believe that it was happening and didn't know what to do about it.
Now, in a vacuum, I like to think that imitation is the sincerest form of flattery, but in reading the comments surrounding this issue, I realize that's too flippant a response to leave it at that (folks are quite sincere about this). In trying to relate, I remembered that I've had a few lines/ideas I've written lifted and uncredited (one by a NYTimes political columnist, no less, or so all my friends insisted...I'm still not sure it wasn't just a coincidence, but...), and it never really bothered me, but I'm not a professional writer. Still, despite my vague (perhaps clueless) ambivalence about this question, I do get the sense that what's driving the passion around it are two artworld realities:

  1. The first artist to get significant attention for some innovation of new vocabulary gets the credit, and everyone else is treated like a copycat, regardless of the true chronology invoved.
  2. Artists with pre-existing power in the art world will most likely be given considerable leeway should the issue of theft be brought to the attention of the authorities or public at large.
These realities are not unique to fine art. Music, television, film, novels, etc., all have parallels. So, in hopes of learning more myself about why this is such a powder keg issue, and perhaps having folks provide good remedies to such actions, please consider this an open thread.

18 Comments:

Blogger James W. Bailey said...

Dear Edward,

Obviously, I feel very strongly about this issue, having shared some stories from yesterday.

Regarding: 1.)The first artist to get significant attention for some innovation of new vocabulary gets the credit, and everyone else is treated like a copycat, regardless of the true chronology involved.

The true chronology can be of immense importance with respect to not only credit, but also protection of legal rights.

For example, I refer to one of my experimental black and white 35mm film photography processes as "Rough Edge Photography". I have a trademark application pending before the USPTO with respect to this phrase. I've also filed appropriate state trademark applications. And, yes, for those who know me and follow my online digital photography projects, I've also filed fed and state trademarks applications for "Evil Digital Photography", my experimental brand of digital photography.

In my opinion, many artists leave themselves vulnerable to a hostile takeover of their legitimate claims to “originality”, at least with respect to being legally recognized (and financially compensated) for being first, by failing to identify appropriate trademark opportunities and to execute trademark applications to protect those assets.

Last October I attended the States of Art Criticism conference at the School of the Art Institute of Chicago. Dave Hickey was one of the panelists. Hickey was in rare form and pulled out a shotgun that night by saying many things like “art students should divert their MFA tuition money toward buying a DeKooning print instead of wasting their time in art school.” I won’t go that far, but I will say that I now believe that every MFA program should require at least a minimum of 12 hours of basic and advanced Art Business Law for those students who do want to stick it out and go out into the real world with the hope of making a living as an artist.

Kids, incorporate your studios, protect your imagery by any means necessary, maximize your revenue streams from your work by making damn sure you get paid for what you create. I’m constantly amazed by the horror stories I hear (mostly from a lot of younger MFA artists these days) who have been ripped off. Last summer I was contacted by an artist from Alabama who designed a logo for a t-shirt that was a summer time trend best seller in Pensacola Beach. She was paid $300 to do the design – a design for which she thought she held the copyright. The fine print of her employment contract, however, detailed that her design was a work product for hire. The copyright was reserved to her employer. This young lady is a recent MFA graduate.

In this capitalistic Federal Reserve Note munching country it comes down to this: if you’re an artist and produce something that becomes hot, either you know how to protect your rights to your imagery and make the money, or somebody else will steal it and line their pockets off your creativity. There’s no National Union of America Visual Artists to help educate, inform and protect artists. Billions of dollars are generated every year in this country in the field of the visual arts. A tiny fraction of that money actually falls into the pockets of artists, with the distribution of most of that money going to a relatively small number of superstar artists.

Unless and until artists take more direct control over their art business affairs, this financial imbalance will continue to exist.

James

1/19/2006 04:50:00 PM  
Anonymous Anonymous said...

Since Edward quotes from my comment above, I will weigh in again.

The whole copyright/trademark/getting paid thing that James is talking about is not really applicable to my situation, and probably that of many other artists. The "theft" that I experienced is not a flat-out theft of a particular image. It was more like a usurped idea (including conception, technique and related contextual text). It's much more of a grey area that would be impossible to prove in a court of law. Artists do borrow from each other all the time, and there is no law (and there shouldn't be) against this, but there is a line that sometimes get crossed, where the borrower is taking a whole concept and changing just enough to make it not be a completely obvious ripoff. I never confronted the person who did this to me for a variety of reasons, mostly having to do with an imbalance of power (he had it, I didn't). Unless you're really ready to deal with the fallout (which includes being seen as a whiny complainer, not a good sport, a self-made victim, etc.), it's difficult to make a stink. And unless you're talking about a commercial art situation, what recompense would you ask for anyway? The whole thing exists in a much more nebulous realm. To me it is more a moral, or ethical, problem rather than a specifically financial one, although that comes into play too, mostly in the form of long-term career status. What hurts me the most is that this other artist is well-connected and has more of a public presence than I do and as a result, when people see my work, I am occasionally asked if I know (and, the implication being, am influenced by) his work. I sometimes point out that it's the other way around, but I usually get an amused look, as if they're thinking, oh, this lesser-known artist really thinks I'm going to believe that this guy ripped her off? Yeah, right, sour grapes, etc.

I found out subsequently that this artist has done this with other people too, all in a similar way: he collaborates on a project, always with lesser known (generally female) artists who are usually happy to be working with a more high profile artist, and then are taken aback when he takes credit for work they have originated. People talk about this guy behind his back, but no one feels comfortable publically challenging him because of his perceived powerful posiiton. I've put it behind me for the most part, but obviously, it still rankles me.
o

1/19/2006 05:20:00 PM  
Anonymous ml said...

Edward,

Theft of a technique or a style, as opposed to a single idea, is akin to the theft of a formula - all of the time and effort expended developing it is essentially stolen.

In the case to which I refered, two artists, one from NY, one from CA, were in a group show together in California. The CA artist was doing one type of work. The NY another. A year later the CA artist was doing work so similar in technique and style to what the NY artist was doing in the group show that the NY artist's friends thought the work was hers. The CA artist has since published a book about the technique. The CA artist is a friend of at least one notable critic.

Inspiring others is what we all aspire to but stealing R&D is usually rewarded.

1/19/2006 05:56:00 PM  
Anonymous Anonymous said...

Ml

This is too weird. I'm in NY and the other artist I talked about is in CA (and our group show where we first worked together was in CA). Could you say a little more about who these people are?
o

1/19/2006 06:02:00 PM  
Anonymous ml said...

O,

Sorry, other than saying the artists involved were all women, I won't be more specific.

Edward,

This is a timely subject. Check out:

http://artnet.com/magazineus/news/artnetnews/artnetnews1-19-06.asp

Jasper Johns was very influenced by a man who did sculpture with sticks. Johns publicly thanked the man for being his inspiration. Now I know some people would sue because the influence was acknowledged but most of us are like victims of malpractice: an apology by the doctor or the hospital is all that's expected. In the case of borrowing, an acknowledgement is just good manners.

1/19/2006 06:17:00 PM  
Anonymous Anonymous said...

I am curious if anyone has ever experienced this:

sharing a studio with someone for a while. I paint in one way and my mate another, that has been so for a while. I do not see mate as a bad person, a cheat or sly in any way. We have often commented on how nice it is that our work is so different. Then. All of a sudden a change starts occuring in mate's work. First it is subtle. But now there is a painting that looks like what I am doing. How has this huge gap been traversed? I don't know. I don't know if I should say something or wait to see how it plays out. Make a joke? Ignore? I don't see malice but I am not flattered.

Has anyone else ever experienced this? I know it's not on the same level as stealing publicly, or being in a position of power and taking from someone less known, but still, it disturbs.

Curious.

J

1/19/2006 07:41:00 PM  
Anonymous Sagebrush Gardener said...

Just wanted to point a very recent (January 2006) example of this, where a well-known retailer allegedly ripped off someone's design ...

http://www.johnnycupcakes.com/


SG

1/19/2006 08:02:00 PM  
Anonymous Ethan said...

Has anyone else ever experienced this? I know it's not on the same level as stealing publicly, or being in a position of power and taking from someone less known, but still, it disturbs.

I actually like that process... art is a form of communication after all, so I think it's natural for artists who work in close proximity to influence each other's work. I suppose there's a point where "dialogue" becomes "copying."

1/19/2006 09:04:00 PM  
Anonymous onsock said...

so, by having a website of your work for all to see.. are you leaving yourself exposed? I agree with ethan about the dialogue aspect.

1/19/2006 09:12:00 PM  
Anonymous Anonymous said...

I do too, agree about the dialogue that is, but it's just so specific, the new imagery and so exactly related to what I've been doing...like the mate's painting could almost be mistaken for one of mine. Anyway. Thanks for the perspective. I have to hope that this will work itself out on its own, that sometimes we have to work through another person to find ourselves? It's not like I am above influence in my own work.

Thanks.

1/19/2006 09:15:00 PM  
Blogger patsplat said...

Stolen ideas are another name for the influences of bad art.

p.s. Urban Outfitters is perfect example of how useless copyright is for artists. The cost of suing is extremely prohibitive, even for a successful artist. They stole a photo published by a professional photographer, and my friend (the photographer's agent) couldn't find an effective way to make any money from them.

1/19/2006 09:28:00 PM  
Blogger chrisjag said...

I'm continually amazed at people not being able to differentiate the different kinds of relationships that artists have with each other via influence. All work is "associated" but lets face it, alot of work is "derivative."

A sensitive viewer should be able to distinguish (even a copy).

http://chrisjagers.net

1/19/2006 10:41:00 PM  
Anonymous Anonymous said...

An artist once told me that originality is how well you conceal your sources. He was 82 then and was flattered when people tried to copy him, bemused when they made pale imitations, and fascinated when they pushed beyond what he had done. I think a lot of this has to do with how secure people feel about what they are trying to achieve.

1/20/2006 01:57:00 AM  
Anonymous pc said...

I basically agree with anonymous ("I think a lot of this has to do with how secure people feel about what they are trying to achieve"), but with an exception, the case of the "usurped idea" described by (another?) anonymous. It sounds just like what happens in science: the big professor has a group of grad students who do some innovative thinking, and the bigwig takes the credit. In science, it's almost a case of paying your dues, that is, giving up some of your original ideas to your boss. In art, it could be the same thing, if the artist has benefitted from the association with the bigwig. This dynamic is unfair, but probably of utility to both parties.

I think the problem of influence is really a non-problem. It's more of a condition of making art. I've always felt that ideas are in the air, and the sucessful artists are the ones who not only pluck them, but also know what to do with them, both purely artistically and also in a careerist sense, too. And since the ideas are in the air, there are bound to be many instances of similar ideas popping up at the same time, from studio mates to artists in far-flung cities.

1/20/2006 09:36:00 AM  
Anonymous Anonymous said...

Here's a story:

I was at Skowhegan some years ago and a friend of mine was haviung a crit with a famous NY painter. My pal was doing some great stuff with unusual materials, and he got suspicious when halfway through the crit the NY artist started taking notes.

The next spring, there were almost exact replicas of my pals paintings, on the wall of the NY dude's gallery, with his name on them. My friend is still nowhere, but every one of you has heard of the big artist I'm talking about.

Don't ask, I won't name names.

1/20/2006 12:31:00 PM  
Anonymous Anonymous said...

Hey, why don't you all name names? Is your friend, skowhegan guy, going to get in trouble if you don't name his name, but name the bigwig? If we keep not calling people on this, it's going to continue to happen. The bigwigs count on us not doing this.

1/20/2006 12:51:00 PM  
Blogger Hungry Hyaena said...

Wow...an interesting collection of anecdotes. Very troubling.

I suppose I used to be more worried about the sort of injustice, if you can call it that, detailed above by the likes of "o" and "anonymous." It does rankle me and I'd certainly lose all respect for the "thief" in such a situation, but, when viewed through a wide-angle lens, the "trade" in images and interpretation seems fair enough. After all, the notion of the celebrated genius, the "shaman" individual, is a modern idea and one likely slated for execution, especially given the acceleration of communication and the proliferation of media outlets. In the short term, we'll likely cling to the ideal and feel inclined to protect/save it, but only because it is threatened. (I'm abivalent about this imminent sea change, as I fear a general intellectual desert - contribution to the world of philosophy and ideas will go unrewarded, making it terrifically difficult to live by your brain - is one potential result, but, nevertheless, I will be happy to see creative entitlement fall by the wayside.)

J:

The exchange in the studio is always interesting, a little like phenomenon of shared periods among female roommates. One of my old studio mates and I were making very similar paintings for a while. During public Open Studio events, many visitors would assume all paintings on hand were made by one artist. In one particularly funny/irksome instance, an interested couple spoke with my studio mate for twenty minutes before telling him they wanted to purchase one of my paintings. It was, um....awkward.

Along those same lines, that studio mate has gone on to receive some early rumblings of big-time Art World success. As a result, I'm quite thankful that we no longer share studio space - even though I love the guy - because our work has parted ways. Maybe the best situation is a revolving door studio?

1/20/2006 05:01:00 PM  
Blogger James W. Bailey said...

Dear Edward,

We have another great Jeff Koon's copyright case to follow on appeal:

From Artnet.com - http://www.artnet.com/magazineus/news/artnetnews/artnetnews1-19-06.asp

KOONS WINS COPYRIGHT LAWSUIT
Jeff Koons has won one for "fair use." The neo-Pop artist, who famously appealed his 1988 String of Puppies copyright-infringement case all the way to the Supreme Court -- and lost -- has been dragged into court once again for copying another artist’s work. For a seven-painting commission for the Deutsche Guggenheim Berlin, Koons drew on part of a photograph taken by Andrea Blanch titled Silk Sandals by Gucci and published in the August 2000 issue of Allure magazine to illustrate an article on metallic makeup. Koons took the image of the legs and diamond sandals from that photo (omitting other background details) and used it in his painting Niagara, which also includes three other pairs of women’s legs dangling surreally over a landscape of pies and cakes.

For those, like me, who eat up the legal language on these decisions, Joy from Newsgrist has a pdf of the decision - http://newsgrist.typepad.com/underbelly/2006/01/koons_wins_land.html

Blanch has already filed an appeal.

James

1/20/2006 05:13:00 PM  

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