Sculptors Accused of Plagiarizing Photo

Last week we reported that a photographer was in hot water after photographing public art and selling it as stock photography. It just so happens that a new case has arisen involving just the opposite: sculptors basing work off a photograph without permission.

The above image, “Sad Vader”, is a popular photograph made by New York City-based photographer Alex Brown that has become ubiquitous on the Internet and sometimes published without crediting Brown. UK-based sculptors Craig Little and Blake Whitehead of littlewhitehead created a sculpture based on the photograph titled “Spam” due to how the photograph can seemingly be found everywhere on the web. Here’s a photograph of the installation:

When emailed by Brown, the artists replied,

On all the blogs we found it on, none of them mentioned the maker of the image. We never knew the image had been taken by a professional photographer.

In an email to Photo District News, Brown states,

My main objection to all of this is that I exhibit this image in galleries and sell limited edition prints, […] By appropriating it, they directly undermine my ability to do so.

What are your thoughts on this situation? What action should be taken?

(via PDNPulse)

Update on February 10th, 2010: Dave, a reader, tells us that the British Journal of Photography got in touch with littlewhitehead and received a pretty lengthy statement. Here’s a snippet:

We contacted Alex immediately after hearing of his concerns and asked if there was anyway we could deal with the situation amicably. We assured him it was never our intention to upset him, nor was it merely to copy what he had already done. However, instead of replying to us, he has selected certain parts of this email and posted blogs slandering us plagiarists. He has also contacted galleries we’ve worked with also slandering us plagiarists. We do not really believe this is an appropriate first step towards dealing with the situation amicably.

Image credits: Sad Vader by Alex Brown. Spam by littlewhitehead.

  • marctaro

    If its fair game for the photographer to make art using Darth Vader, who was created by an artist at Lucasfilm, then why is it not fair game for a sculptor to make a third piece based on the ubiquity of this cultural icon. (the Vader mask).?

  • Photog

    Doesn't matter if the image was made by a professional photographer. Could have been made on a camera phone by a 12 year old, it is still copyrighted.

  • keath

    Wow. I rarely feel it necessary to comment, but I think I'm significantly appalled enough at that quote to reply: Why should it matter that it was taken by a professional photographer? Even an amateur has the rights to their photo unless they explicitly release them to public domain!

  • Robert

    Well, the use is a bit different, one is using a part of a the whole image of “Darth Vader” changing context and the situation, so the in the image it becomes a prop rather than the driving force of it (no pun intended). The picture seems to be of the situation and a whimsical moment rather that someone trying to rip off Darth Vader. The sculpture on the other hand is almost a direct copy of the original picture as a whole only with a different excuse behind it.

  • Ross Hall

    This has been dealt with thousands of times in and out of court before.

    But it does ask a second question. The original photo is largely without merit. I know it is an “internet phenomena” but to be honest this is the first time I've come across it and I would have passed it by under normal circumstances.

    So we now have a rather dull photo being turned into a dull “sculpture” (which appears to be devoid of sculpting).

    Frankly a storm in a teacup.

  • Steven Yunghans

    “…We never knew the image had been taken by a professional photographer.”

    You mean, if the photo was taken by an amateur, it's OK to recreate the shot as a sculpture?

    Check out the film, “RiP: Remix Manifesto” by filmmaker Brett Gaylor for fair use and what it means to art. Granted, the film is mostly about music rights, but much of the law applies to visual art as well.

    The Darth Vader mask has become a cultural icon, moving beyond the work of one artist, just like the Mona Lisa or portions of the Sistine Chapel ceiling. It's not so much what you use, it's how you use it. Recreating a moment that was captured on film as permanent (or at least reasonably permanent) 3D art should prior arrangement from the original creator.

    While speaking on the subject of “spam” and it's prevalence on the WWW may be fine, you still need consent for the recreation.

    If it was my photo, I'd be flattered, but I still want at least some credit because the artist OBVIOUSLY used my work as a source with little reinterpretation.

    I am a little alarmed by the thought that if this was taken from an amateur, you don't need to give that person credit for the original work. It's still an original work that someone thought about and created, even if it was in a fleeting moment.

  • kimasendorf

    hell yeah, fuck copyrights!!!

    millions of artworks based on ideas of other people. art should be open source!

    especially in photography there is a entire scene for making imitations. something like this but only pays homage to the original..

  • Edward McNally

    Being a photographer I can sympathize with the photographer, but it is a different location, a different pose, different lighting, and a different jersey. Only the mask and the idea is the same. The mask is not the photographer's copyright, and ideas are not copyrightable.

  • Miles

    There is a precedent to this. The artist Jeff Koons used a photograph of a man and a woman holding puppies that he found on a postcard to make a sculpture. That sculpture was, according to Koons, a parody, a riff on the idea of the banality of everyday items. He thought that would give him clearance to use it under fair use. The court disagreed, saying that “Koons was not commenting on [the photographer's] work specifically, and so his copying of that work did not fall under the fair use exception.”

    This would seem to be a very similar case. The sculpture uses so many exact details of the original photograph, like the red shirt and braces, that the sculptors can't claim to be expressing a general concept, whether parody or not, under fair use, and there's no parody of the original image claimed, or by the looks of it, intended. They are just expressing that the photograph is ubiquitous on the internet. There's no 'transformative' idea involved.

    This also highlights the concerns around the odious proposed 'orphaned works' laws, which gives people permission to use copyrighted material when the owner cannot be identified. The sculptors claim not to have been able to find the image with any credit to identify the photographer, but how hard they tried, or should try, isn't particularly quantifiable.

    In this case I have no sympathy for the artists, it doesn't matter who took the image or how many places it appears without a credit. To claim that it would only matter to them if a professional took the image, suggesting that they would have no problem using an image taken by an amateur even if they knew who took it, is just disrespectful and unprofessional.

  • Tim Gander

    Never even seen this photo before, but never mind. Regardless of the legal and artistic niceties of this case, it is a lesson to photographers that they really need to control their work better, by watermarking or at least ensuring IPTC data is attached to every photo they publish, and a lesson to those who wish to re-use someone else's work that it's a safe assumption that EVERYTHING you see on the internet is copyright owned by somebody somewhere.

    Open source might apply to software code (which in any event is covered by IP, not copyright) but it can't successfully be applied to photographic works. It certainly cannot be assumed that the creator has granted open access to their work.

  • Dave

    The British Journal of Photography contacted the sculptors littlewhitehead, and after a couple of back-and-forth, they have agreed to talk. Here is what they had to say:

    “We believe it is important to understand Spam in regards to the context of the exhibition it was part of. All the work in the exhibition looked at very unprecious, irreverent forms of artistic production. e.g. we deep fat fried and battered a 200 year old bible; we defaced photographs of award winners from a retail magazine and blew them up to life-size corporate portraits; we posted an obituary in a national paper for the death of a cartoon character.”

    “For Spam we wanted to use a ubiquitous web image as our starting point and turn it into an artwork. “Vader kid” is on many blogs and is used by some as myspace profile photos. Contrary to what Alex Brown has said, many of blogs the photograph appears on does not credit him with the photograph (some of the websites have even put their own watermark on the image). We didn't know the photograph had been taken by a professional. But for us the photograph was only the starting point for our work. We were never interested in finding out who had taken the original, that was irrelevant to the working process. The fact the image already had such a large web presence is what made the image important to us. As pointed out by many posts on the blogs, our composition is very different from his. The whole feel of the work is also very different. We believe the problem has occurred because most people are viewing Spam as a photograph (particularly the photograph taken at a similar angle to that of Alex Brown's) and not in its entirety as a sculptural installation.”

    “We contacted Alex immediately after hearing of his concerns and asked if there was anyway we could deal with the situation amicably. We assured him it was never our intention to upset him, nor was it merely to copy what he had already done. However, instead of replying to us, he has selected certain parts of this email and posted blogs slandering us plagiarists. He has also contacted galleries we've worked with also slandering us plagiarists. We do not really believe this is an appropriate first step towards dealing with the situation amicably.”

    This statement was taken from:

  • Michael Zhang

    Thanks dave. We'll update the post.

  • morris

    Alex Brown sounds like he's been a total bitch about the whole thing.

  • jonliebold

    There are a lot of good points made. But nothing changes the fact that this image is out there and the original photographer got screwed by these other sites. I did a Google search and found it on a large number of sites. A random sampling had, as the sculptors said, no attribution. So they see an image on quite a few sites like MySpace and such which would readily respond to copyright claims if one ever was made. What else are these guys supposed to think? At what point do you draw the line and say you could reasonably conclude that the image's creator had not intended for it to reach this level of saturation intentionally?

    Even though I am both a graphic designer and a photographer, I would have to side with the sculptors. The inspiration is there, but it is not a 100% copy.

    I am also reminded of a quote from Margaret Cho: “Artists are supposed to comment on culture. That is the function of art.” The sculptors have stated that their work is a commentary on a cultural phenomenon of images like these that spread across the internet or “go viral” as the term goes now. They also state is is not an isolated work but a component of a larger exhibition so in my opinion it does need to be looked at in that context.

    This case is one of those teachable moments. As an artist or a photographer it is OUR job to take care of our own works. Nothing I post, even if it is for a class assignment, goes up without my copyright watermark on there. Copyright is also included in the metadata which, and this is a guess on my part, stays intact through most copying. The United States Government offers copyright registration to also further protect your work.

  • Viking

    A bit silly to take a recourse on copyrights because of an installation that refers to a photo, but that certainly is anything but a copy or a model of that photo. Should that be a copyright infringement, we can soon sue anybody dressed up as a Trekkie, a Clone, in anime gear, zorro or whatever it is.
    Virtually all visual human expressions cite or refer to prior expressions, any anthropologist, semiologist or mathematician etc could explain this. The original photo is, even more so than the accused sculptor, deriving popularity and value (dollarwise and culturally) from the one holding the copyright to the Darth Vader or Star Wars helmets, for that matter.
    Taking recourse on 'rights' and not on 'obligations' or oppotunities will paralyze social and cultural advancement. What about the photographer and sculptor creating joint opportunities and a win win situation? The photographer could make nice photos of the installations, the sculptor could express the photos in 3D, and both could invent crazy new forms of exhibitions and ART.