Tuesday 10 July 2012

Birds of a feather...copy each other?

The Australian press is a flurry with reports of some artistic copying. The first image below is a photograph, entitled Shenae and Jade, by artist Petrina Hicks, which is held in the collection of the Art Gallery of New South Wales. The second is a painting by Czech artist Marek Hospodarsky entitled Bird.

Reports the Sydney Morning Herald:
Art dealer David Hulme found it hard to spot the differences when he received a promotional email from art dealer Saatchi Online.
The price of the Hospodarsky painting is $1200 - a print costs $20.
 Mr Hulme said the image was an ''iconic photographic image''. ''I compared the two and it's obvious that it's a copy,'' he said. ''The main problem is the way it is being proliferated to such a substantial amount of people around the world.'' He rated the work as ''quite an amateurish representation of Petrina's very highly professional work'' and said it could damage the artist ''because it is not of anywhere near the same quality''.
When The Sunday Age contacted the Stills Gallery in Paddington, Sydney, which represents Hicks, it was not long before a second painting by the artist was discovered on the Saatchi website that also looked familiar. Hicks accused Hospodarsky of ''directly'' ripping off another of her images. "I can also recognise the works of other well-known artists in his paintings; his work is 100 per cent derivative,'' she said.
Looking to our favourite recent UK Red Bus case, there it was held that it is possible to infringe copyright in a photograph by recreating a scene that had been photographed, when the skill and labour of the author (his intellectual creation) went into creating the scene that was photographed in the first place. The judge found that the common elements between the defendants' work and the claimant's work were causally related, in other words, that they had been copied, and, on a qualitative assessment of the reproduced elements, those elements were a substantial part of the claimant's work. Therefore, there was copyright infringement of the original work.

Applying the decision to the facts of this situation, upon a very basic visual appraisal (of my own), it does seem that the Hospodarsky painting reproduces the key visual elements of the Hicks painting. I would be interested to know our readers' views on the matter. Would you consider that Hospodarsky's painting reproduces a substantial part of the Hicks image so as to amount to copyright infringement? Or is Hospodarsky's painting his own intellectual creation.

Source: Sydney Morning Herald, 8 July 2012


Anonymous said...

"...it does seem that the Hospodarsky painting reproduces the key visual elements of the Hicks painting."

The painting is much more than derivative. It's slavishly imitative. Unless of course the loss of detail texture color and crispness is an artistic statement, a kind of wry joke played on Hicks, and not just a one-pass through photoshop's watercolor treatment.

Tom Ang said...

If I were to paint or photograph a young girl fooling around with a budgerigar, there is little doubt I'd have to reproduce the 'key visual elements' of the Hicks original. Commonality of key elements cannot be the test. But incidental elements which are common to both works can be telling: the highlights on either side of the girl's forehead, for instance, or the shape of her neck as revealed by the blouse, particularly telling (for me) is the shadow under the girl's left chin which on the original is a little awkward: that is reproduced in the Hospodarsky. These are not essential to the depiction of the subject and outweigh differences such as the red background, and point to an artlessly slavish copying, to my mind without a doubt infringing.

Rachel said...

The painting is a copy. It would have been relatively simple for the artist to paint a woman with a bird in her mouth and to have had that work be an original based on the choices the artist made. But here, the woman in the photograph is portrayed in intimate detail, including her hairline, nose, ear, clothing, and the way the light strikes her face. The bird is a close copy too. Ultimately, whatever creative choices Hospodarsky made were not important ones.

Anonymous said...

Hospodarsky's painting is his own intellectual creation. It would have been relatively simple for the artist to paint a woman with a bird in her mouth, but the artist chose to use instead a photograph as the basis for his work. As with Jeff Koons's work, the painting raises issues about the nature of the artistic process, the relationship between photography and painting, and the nature of realism. This is exactly the kind of creative endeavour that copyright is intended to foster.