Photo Theft Versus Conceptual Art

Acclaimed photographer Harry Benson was recently flipping through the New York Times when he came across an article about the Whitney Biennial exhibition in NYC, one of the leading shows for up-and-coming artists. He was shocked to find that the installation featured in the main photograph was using one of his photographs without permission.

It was a portrait of Michael Jackson that Benson had taken at Neverland Ranch:

He soon discovered that it was part of Lorraine O’Grady‘s art piece titled “The First and Last of the Modernists”. O’Grady had taken Benson’s photograph, desaturated it, and placed it in a diptych with a photo of poet Charles Baudelaire.

Here’s the photograph that Benson had shot for design magazine Architectural Digest in 1993:

PDNPulse reports that,

Benson contacted O’Grady, who lives in New York, to question her unauthorized use of his image. According to Benson, she told him she is “a conceptual artist.” […] O’Grady also told Benson she was planning to reproduce the diptychs in an edition of 10.

A lawyer for the museum offered to place a credit to Benson next to the installation, but Benson refused, asking for the image to be taken down. Benson’s wife Gigi informs us that Benson has spoken to a lawyer and is currently waiting to see whether the museum takes action on his behalf.

What are your thoughts on this case? Is it image theft, or acceptable conceptual art?

(via PDNPulse)

Image credit: Photograph by Harry Benson and used with permission.

  • marctaro

    It's possibly transformative (in context with the juxtaposed image it has new meaning) – and it's probably not harming the value of the source photo in any way. Probably enhancing it. (you just gave it pr here). My reading is that makes it legit.

  • SexyNinjaMonkey

    That's theft. Straight up. She got no permission to use a copyrighted work.

    Plus her work is terribly bland.
    Seems strange for a conceptual artist to have no concept of art…
    Or laws.

  • Paulo

    If that's art I'm losing money… ¬¬

    And she should have asked for permission, no doubt about that.

  • Shiva

    Absolute theft. Taking a known photo and exhibiting it as your own work is wrong. I would not settle for just taking it down, I would create the concept of dragging a ill formed concept through the wringer.

  • Armando Vernaglia Jr

    2 “That's theft. Straight up. She got no permission to use a copyrighted work.”

  • Regan

    A musician needs to ask permission to use a riff from another musician in their song… this is no different.
    It is theft. The artist should have used a little bit of courtesy.

  • Tony Hart

    This is flagrant disregard of copyright law. Theft, plain and simple. It's akin to me stealing someones car and then trying to justify it on the basis that I am a hippy and while others may consider it theft, I view it as merely long term borrowing. Mad.

  • david Ashcroft

    Using the photo almost As 100% original despite the desat and juxtaposing it opposite another piece hardly in my opinion transforms it.

    Although a credit to the original source should lessen the sting. The idea of making a short run of prints says she intends on generating income off of Bensons work, so a credit does little good and leans more to the theft arena.

    I'll get off the fence and say its not thievery but must be really effin embarrassing for both artist and exhibitor.

  • aburtch

    She should have at least asked for permission.

  • Max

    Simply desaturating a photo is not enough to transform it into a new work. The “concept” here seems to be “I've found an image on the internet and am going to call it mine and profit from someone else's work.”

  • parlance

    It's theft. And given the source, that took some major cojones.

  • Patrick Smith

    Parlance, 'cojones' is an understatement… Elephant's cojones more like it! .. I think I'll do a conceptual exhibit with some of Ansel Adams' work juxtaposed with some Galen Rowell. I'm sure that nobody will mind!

  • alexblock

    Theft and copyright infringement are entirely separate. The photos in question were not *taken away* from the original creator. The original creator still has them. Thus, no theft occurred. Whether or not Benson has a case for copyright infringement is the real issue. In any case, Benson could use this as an opportunity for a positive PR boost as opposed to suing everyone. A real artist would care more about his reputation, than his wallet. This is nothing more than a money-grab.

  • WD7

    Quite simply, theft. I'd be checking the source of the other photographs as well.

  • Miles

    It's theft, straight up. Within copyright law there is an allowance for derivative works but they have to be a *lot* more derivative than this to qualify. She hasn't substantially changed the original image, it's not transformative, it's perfectly recognisable as his picture, the context in which its displayed (oh, look it's paired with another picture now!) does not transform the original anywhere near enough to qualify as fair use.

    It pisses me off that this kind of abuse comes from an artist, it's bad enough that people think Google image search is a free for all without this kind of ignorance. And that it's displayed at the Whitney of all places! This should be removed from the exhibition by the museum pending the outcome of legal action. Offering to credit him is a pathetic response. The 'artist' should be ashamed.

    All this raises the question of where she got the other photographs she's using. Did she take any of them? How many other photographers is she ripping off?

  • BranEverseeking

    out and out theft. not a sample or even justified as a “cover” as in music.

  • Ehren Wells

    If I take a photo of a Chevrolet, am I stealing from General Motors?

  • Max

    Ehren, you must be joking. This is a case of an artist using a photo someone else took as a central part of a piece of art that they're selling. Does that sound fair to you? This isn't some arcane copyright nuance, this is profiting directly from someone else's work.

  • Ehren Wells

    Max, you're right. I reread the article after your post. If he copied the photo, manipulated it, and then placed it in this photo claiming it as his own work, that's plaigiarism.

  • Richard

    This is a less than nuanced example: it's copyright infringement for sure.

    A more nuanced and interesting situation to ponder is if I were working for Harry Benson and after he got Michael Jackson all set up, I took a picture over Benson's shoulder with my camera such that the resulting picture looked almost exactly like this. It's Benson's gig and setup so am I stealing the opportunity?

    I think yes as I'd never have gotten my foot in the door, gotten Jackson to pose, etc. Benson owns the entire situation in my opinion.

  • Wyllys

    Theft. So lame that this woman calls herself an “artist” and is basically doing a lame photoshop job on someone elses work and calling it her own. Then she has the gall to sell it in a “limited edition run of 10″. Wow.

  • ipevo888


  • mnovaes

    The point is: the threshold in museums nowadays must be pretty low for this to happen…

  • Heike Rost

    Asking for permission is first of all a matter of respect. The use of other artists' work without any permission (and profiting directly of another person's creative thoughts and work) is nothing but – theft.

  • tim

    she would have avoided all of these problems if she had the courtesy to contact the guy. what exactly does “conceptual art” mean and how does it act as a blanket term of protection for a thief?

  • scottmphoto

    Yeah this is certainly theft.

  • Stacia

    I'm so surprised how little people are aware of the history of conceptual art. This kind of appropriation been happening in art since the Duchamp first turned a urinal on its side in 1917. With that said, I do understand if people don't like it or understand it. That is always a problem with conceptual art. It's not for everyone. But it always bugs me when an issue of accused copyright infringement arises and no one examines the difference in meaning of the 2 pieces. Yes, it is clear that she appropriated the image from Benson, but the meaning of her piece IS very different from his photograph.
    Lorraine O'Grady's piece is not a portrait of a pop icon in front of a wooden staircase, as Benson's photograph is. Her piece is a comparison of an American pop icon of the 20th century and a French poet of the 19th century. She is asking us to think about what they have in common. And, as referenced in the title, she is commenting on how these 2 figures represent Modernist ideals. She is questioning whether or not it is dead, now that MJ is dead.
    Appropriation in art itself is associated with Post-modernism; originality in art is associated with modernism. So, just based on these comments on what constitutes a work of art, I'd say modernism is alive and thriving.
    Also, the market for Lorraine O'Grady's work is not the same as the market for Benson's photograph. He likely already got paid in 1993 by the magazine for doing a photo spread. That is a very different way to get paid as an artist. I am absolutely not saying one is better than the other, just that there are different means of dissemination and, therefore, different markets. Was Benson actively seeking a gallery in which to exhibit large-scale prints of this photograph he took for a magazine in 1993? That would likely make their markets closer together, and more likely be infringement instead of fair use.
    With all that said, I would agree that appropriation artists should be more respectful of the sources they transform. Appropriation artists are doing what they have done since the 70s, but that was pre-internet, pre-digital revolution. Their conceptual appropriations were very specifically for an audience which understood the conceptual language being used. But things are changing. Artwork is being seen all the time out of context. And copies can be made more easily. Perhaps we need to come up with some kind of Best Practices Guide for Appropriation Artists as the Center for Social Media has done for Fair Use in documentary film and Online video.

  • Bundydoc

    So does that mean I could take a picture that Ansel Adams published, colorized it myself in photoshop and then hang it in a gallery under a different “meaning” without getting permission? I say its theft.

  • Patrick Smith

    Stacia, I understand exactly what you are saying and this exhibit is still that hybrid of theft and copyright infringement. The only difference between now and then is that it is above the collective radar now, exposed to our indignity.

    According to your logic, *anything goes* as long as you compare one thing to another or have some new idea behind it. The logic is full of fallacies.

    I guess now that model releases are not required as long as you say that the photo is not about a person but rather a critique of this or that or a comparison to something else.

    Your argument is hollow and is just pushing words around on a page until they look right.

  • marctaro

    It's dangerous to comment on this here – there's an obvious home team vibe. I'm not advocating appropriation – someone just did it to me yesterday in fact – in a very disturbing manner. (They were using my art, off my site to entice a woman to model nude – so hey, it gets very creepy out there).

    BUT the situation remains – when thinking about artistic commentary – the combination of Jackson with Baudelaire and the title referencing modernism. It seems to me this is rephrasing the image into the worlds shortest essay on modern art. It's a statement raising an artistic debate or discussion.

    I'm not sure that I care about the 'deep statement' – I'm not an art critic/student/philosopher – I'm just a artist. But you guys have to consider what the cultural implications are of locking down images and forbidding any use or discussion.

    My understanding of this is – the precedents say that if the new work is transformative, (and they don't just mean transformed physically – they mean, changed in MEANING), and if the new work does not reduce the value of the old – (by stealing sales) then its fair game. (in the eyes of the law). I really don't think selling some limited editions to some brain trust museums somewhere is going to hurt the photographer. in fact, it HELPS make this one image of Jackson (one of zillions of similar photos) more iconic, and therefore more likely to be valuable. It's also interesting that nobody is worried about the value of the pic of Mr. Baudelaire. (I'm totally ignorant, re:him). No idea what he did at all. but I've seen Thriller a few times).

    The thing is – we cannot lock down culture. How many of you have taken a picture of a model in designer dress? What about the designer? What about the Patek watch or the car in the photo? What about the architect of the building in the back of your photo. If we start down this road of locked down culture – art will become very difficult to perform very quickly. How many have taken a still life photo of antique? Want to have to make an orphan rights search and declaration for ever single still life shot??? no you don't!

    In my own work in designing video games for a major publisher I've been prevented by company lawyers from setting a game in New York – because of the fear that we'd have to get legal waivers for all the buildings we'd be destroying.

    Please don't be focused on the misuse of photography because you are photographers! I don't want anyone cheated of anything that would make them a livelihood. I just feel that commercial concerns can very easily overshadow the freedom of creative artists – and that would be challenging for us all in our OWN work.

  • RichardEB

    Red flag number one is that the “artist” in question did not even have enough respect to ask for permission or let alone even inform the photographer of using the image. If money is to be made here, then credit is due to the original creators, not the artist who pilfers images and pieces them together. I would not even consider this a derivative work as it clearly exhibits the original piece.

    I believe that many artists need to be a little more diligent in their efforts. If you cannot create your own imagery, be it lack of experience…or any excuse for that matter then I feel it is the responsibility of the artist to get off their asses and practice in the medium of choice or ask for a favor from another artist in using their images.

    Marctaro has some really good points about the implications of copywriting every single facet of creation but I think where this differs from the article is that the image of MJ in its entirety was reproduced specifically for use in this exhibit. Regarding the matter of using reference for creating art, I think it is responsible to keep it as such. Artists should not copy verbatim what is before them, they should take inspiration from the source and leave the original composition in its entirety alone. Being honest with yourself about where your creative sources come from is as important as being original.

  • pcd2k

    I believe appropriation was/is one of the techniical practices of Postmodernism

    “Appropriation art debunks modernist notions of artistic genius and originality and is more ambivalent and contradictory than modern art, simultaneously installing and subverting ideologies, “being both critical and complicit.””

  • donquiixote

    Theft. (or copyright infringement, or whatever). Taking two random copyrighted photos of any sufficiently famous celebrities and putting them together would produce an almost identical but unique “conceptual” effect. but totally irrelevant. The “concept” that is producing the most buzz here is the brazen thievery, not the conceptual juxtaposition, the extremely clever desaturization, and the printing-it-really-big.

  • Stacia

    I would say that if the work commented on Ansel Adams or his work or his role in photographic history, then that would fall under fair use. Especially if it were an iconic image by Ansel Adams, who is very well-known as a B&W photographer, then I would argue that modifying work by such an iconic film photographer digitally DOES have a different meaning. And no one is ever gonna confuse a digitally modified version of an Ansel Adams image with an original Ansel Adams. This would actually be more of a fair use than the O'Grady/Benson case, because it would be commenting more directly on Ansel Adams.

    With my post above, I was not stating that I thought she shouldn't try to get permission from Benson or pay him or give him credit. I was only trying to argue that the 2 pieces and the intentions behind them and the context in which they are shown is very different. And those factors do matter in a fair use defense. If O'Grady perceived of the Benson image of MJ as iconic (in the same way the Baudelaire portrait is), then it is more likely that she believed in good faith that her use was fair. Perhaps she still should have asked for permission. But “theft” is not the right word for what happened.

    Fair Use is meant to strike a balance between the copyright owner's rights and the progress of arts and science. You may think her piece is not progress, but I disagree. I think she's asking a very important question about Modernism and cultural icons. I admit, I have not seen Benson's photograph in it's original context in Architectural Digest, but I would venture that it's probably not doing the same cultural work that O'Grady's piece is doing.

    I'm not saying that either work is more important than the other, just that they have different cultural roles to play and therefore different markets. And that is what the doctrine of fair use is meant to preserve.

    With all that said, I think appropriation artists absolutely should reconsider how and why they appropriate, and who the image source is and how it is being used. I argue for an ethics of appropriation which is lacking. For example, I think there is a major difference in appropriating from a source that is not widely known with no permission or attribution and appropriating from a mass-media corporate source like Disney. But I also think we shouldn't jump to the conclusion that appropriation artists are lazy assholes who don't know how to make their own work. It is just a really different kind of work.

  • Stacia

    Actually, I do not believe anything goes. I think you've misunderstood me. What I was saying at the end of that post was that appropriation artists SHOULD be reconsidering how their appropriations communicate their intentions and who the audience is in light of the ways that digital culture strips away viewing context. They SHOULD be acting differently. That's what I meant by developing a Best Practices for Fair Use in Appropriation Art.

    But I think it is wrong to assume that conceptual artists who use appropriation to comment on the culture that surrounds them are lazy thieves who have nothing interesting to say.

  • tim

    “But I think it is wrong to assume that conceptual artists who use appropriation to comment on the culture that surrounds them are lazy thieves who have nothing interesting to say.”

    Stacia, I don't think the issue doesn't lie in the act of appropriation–although some people seem to try to mix that cynicism into their arguments here– or conceptual artists being lazy thieves. They could be very hard-working, intelligent, and high-minded (hence, conceptual), but that still makes them thieves if they don't respect someone else's lawful rights to carry out their appropriation. the collective moral outrage could have been avoided save for the lack of courtesy, the blatant self-righteous, self-important, arrogant attitude exhibited in this case. if the artist simply apologized and came clean that she didn't know it wasn't a public domain image, i think the collective outrage wouldn't be so extreme. but to hide behind the flag of “conceptual art” basically says, “i can do whatever i want because of my concept of free speech, even if it means stepping over someone else.”

    what if they try to comment on societal mores and issues of justice and intentionally steal, pose nude in public, pee on passers-by, etc. to “make a point”? what if they take the issue further from these to something more extreme and sinister – say, violence, or murder? where should the moral line be drawn to excuse anything done for the sake of “conceptual art”?

  • tim

    sorry, i meant, “i don't think the issue lies in the act of appropriation–“

  • ArielLeMer

    The conversation here is very strange.

    <<Tim: the collective moral outrage could have been avoided save for the lack of courtesy, the blatant self-righteous, self-important, arrogant attitude exhibited in this case. if the artist simply apologized and came clean that she didn't know it wasn't a public domain image, i think the collective outrage wouldn't be so extreme. but to hide behind the flag of “conceptual art” basically says, “i can do whatever i want.”>>

    So far as I know, the artist herself has not spoken publicly on this incident. How do you know she has not apologized? Or that the phrase “conceptual artist” was not used as a simple description of her work rather than the “arrogant justification” you are describing it as? Are you basing your opinion on a story told just from one point of view?

  • debby

    this is the problem with art schools and with the world wide acceptance of art today. It turns out people who have no concept of creativity and teaches them to justify their efforts with words like “Conceptual”, “Transformative”, “Juxtaposed”. It's only the Emperor's New Clothes if we choose to see that it's there.

  • Elkinsbryan

    as an artist/photographer, i think it is ok that the photo was used in another exhibit, by another artist…as long as there is a shout-out to the original artist.

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  • cj

    i believe that art should be expressed in any way and if the artist believes in a message or an image , than the artist should do what ever and is not theft because this are public faces that indirectly or directly are being remember by her publicity.
    so in my personal opinion, let those haters hate .
    she is a great artist and her work is wonderful !