Two weeks ago, Belgian painter Luc Tuymans was found guilty of plagiarism in a Belgian court. We look at the details of copyright law and explain why we think the verdict was misjudged.
The case referred to a painting by Tuymans titled ‘A Belgian Politician’, a painting based on a photograph of Jean-Marie Dedecker taken by the prosecutor, Katrijn Van Giel.
Jean-Marie Dedecker by Katrijn Van Giel (courtesy of imagedesk.be)
It is reported that Tuymans will be subjected to a £500,000 fine if he makes any further reproductions of Van Giel’s work. This I imagine is worrying news for a painter who has based his whole career on painting from photographs, many of which have been appropriated from the internet or from newspapers. His work first came to prominence in the late 1980s and early 1990s, when he started to paint images that related to both contemporary and historical political events, such as the Holocaust or the Oklahoma bombing, as well as more banal compositions of wallpaper patterns and unremarkable household objects.
His paintings have always been so far removed from attempting to replicate the idea or appearance of the photographic source from which he has worked. The palettes are often muted with a heavy reliance on cold greys and jaundiced flesh tones. The paintings always have the sense of something lost (the colours are reminiscent of faded photographs), and there is a detachment that removes any sentimentality; his paintings are often so cold they’re chilling. This sense of detachment is of course all part of the painting process. Tuymans deliberately paints his images to look like paintings of photographs as much as they are photographs of people or scenes, in a direct attempt to question authenticity. The paintings ask us whether we can be moved by a facial expression that feels so detached, not only because of the way that it has been painted but also because we’ve seen the same image plastered across the internet and reproduced in our newspapers.
Luc Tuymans: ‘Soldier’ (image courtesy of wikiart.com)
As soon as I heard the news that Tuymans had been found guilty of plagiarism my instinct was that the verdict was a misguided one, but I felt it was only right to take a look at what the copyright laws state, and double check. I remain unmoved in my view. The relevant points in the Berne Convention for the Protection of Literary and Artistic Works are that the artist has:
- The right to authorise translations of the work.
- The right to authorise arrangements or other types of adaptation to the work.
To address these points in turn, first of all, we need to ask ourselves “what is a translation?” According to the Oxford English Dictionary it is ‘The conversion of something from one form or medium into another’. Tuymans’ painting does not do this directly and therefore cannot be described as a translation. The medium of painting does not allow for mere reproduction, there are too many decisions to be made by the painter for that. The photograph may have formed the basis of the painting’s design, but combined with the chosen palette of deadened cold greys, the painterly brushmarks, and the naivety and flatness of the portrayal it becomes something else entirely. As art writer Adrian Searle rightfully pointed out in his comment on the news “Coming down to details, everything is different, including the image’s construction”. So, if not a translation, is it an adaptation? Well, again, no. An adaptation implies that the photograph was simply converted into a painting. But again I must state that Tuymans was clearly not intending to express the exact same idea as Van Giel, and that his presentation of the images was so laden with his view, his painterliness, that it made the work entirely his own.
Domenichino: The Last Communion of St. Jerome (image courtesy of www.kingsacademy.com)
Of course this issue is not a new one in painting. It even pre-dates the mass media images that you might imagine started the whole conumdrum. Accusations of plagiarism in painting were being thrown about in the 17th Century, with painter Domenichino being accused by fellow Baroque painter Lanfranco of stealing the design for his painting ‘The Last Communion of St Jerome’ from his former teacher, Agostino Carracci. At the time many artists took sides and many defended Domenichino for merely developing an idea of beauty (idea del bello) – the idea that through imitating a previous composition an artist is able to develop it, making it even more beautiful – contributing another perspective to the subject and enabling a development of the sublime in painting. Although today beauty is not the be all and end all in visual art (you only need to blame fellow alleged plagiariser Marcel Duchamp for that) there’s a parallel here with the Tuymans’ case. It could be argued that perhaps Tuymans was creating a conversation with the photograph – adding his perspective and continuing the journey of this image in a way that was clearly not expected or welcome by Van Giel.
Agostino Carracci: ‘The Last Communion of St. Jerome’
More recently, there have of course been many other news-worthy accusations of plagiarism in art. Anyone remember Glenn Brown’s Turner Prize nominated painting ‘Loves of Shepherds’, whose design was appropriated from a 1970s Science Fiction Book? Or Damien Hirst’s giant bronze reproduction of a children’s anatomical model (‘Hymn’, 1999?) Or what about Andy Warhol’s soupcans? And how could Marcel Duchamp possibly have claimed the urinal as his own making?
In response to the Glenn Brown case, Sir Nicholas Serota said “He said: “Glenn Brown has frequently used the work of other artists in developing his own work, but that is true of Picasso, who borrowed from Rembrandt … this is not new.
Glenn Brown: ‘The Tragic Conversion of Salvador Dali (after John Martin)’, 1998 (image courtesy of chloenelkin.wordpress.com)
“He uses other artists’ work, but that doesn’t mean to say you could possibly mistake his work for theirs… he takes the image, he transforms it, he gives it a completely different scale.”
My feeling is that a greater degree of clarification is required in the law to help prevent these cases from arising, and to help encourage a freedom of expression and dialogue in visual art.
As Tuyman’s lawyers themselves rightly stated, “The verdict prohibits a form of contemporary art and deprives contemporary artists the right to express themselves”.
It’s a contentious issue. Where do you stand?
John Martin: ‘The Great Day of His Wrath’, 1851-3 John Martin 1789-1854 Purchased 1945 http://www.tate.org.uk/art/work/N05613
Without wanting to be accused of plagiarism myself, I wish to acknowledge the following sources in the making of this article:
http://www.copyrightservice.co.uk/
The Oxford English Dictionary
I disagree, I am afraid. If Tuymans wanted to use another person’s photograph, it would have been so easy for him to have sought permission of the photographer. He chose not to, assuming that the law gave him some right to do what he wished.
The has been clear for a long time, whether you are painting a landscape or a portrait, whether it is an exact copy or an interpretation, that the first thing that you should do is discuss this with the copyright holder and try to obtain their permission. If you do not do so, then you risk this sort of case.
Found images used within a work are more complex, and the law is rightly grey because of the complexity. No-one suggests that this is such an image – it is straightforward plagiarism. To add another twist, would you not be upset to discover a professional artist selling a painting (at a significant price) which was a slightly altered copy of one of your paintings, without so much as a bye or leave?
Howard.
No, I would not be upset personally if someone based an artwork on my own and made a lot of money out of it. For me art is freedom of expression, and for me, although not a huge Tuymans fan, I see it is transparently clear that his appropriation of the photograph was part of the point of his expression. If he had taken a photograph that cropped the head of a politician in a similar manner, in order to show a politician under huge strain, as a means of communicating something about this figure in the context of Belgian news, then yes, I would agree that that would be plagiarism. However in painting the photograph and showing it in an art gallery he is also saying something about the nature of the photograph and not just the politician, and he is layering it in the context of the tradition of representational painting. If you were to paint a still life that included a depiction of a jug would the painter be a plagiarist of the ceramicist? For me the answer is no. The painting does not hold water, it does not serve the same function as the jug. Why is the same not said for a painting of a photograph?
This not the same as the still life situation – the photo was not an object among others, but the whole basis for the painting. However “his appropriation of the photograph” is a good description of what Tuymans did. To have created an honest work of art, Tuymans could quite easily have taken his own photo of the politician and painted from that – that is after all what a lot of us do. To allow his defence that plagiarism of this kind is actually part of his art is a bit like saying that an artist can legitimately make any legal offence a part of their art, and get away with it. And nothing justifies *not* approaching the artist (remember photography is not just a craft!) who took the original photo and seeking consent for its use, does it?
What if the painting of a jug was just of the jug on its own? And with regard to the other point you make, it’s also very interesting that most people seem to see this as Luc Tuymans ‘stealing’ the image, and not following in the tradition of Domenichino, perhaps giving life to the photograph in another medium. I understand that it is the lack of acknowledgement that is the real problem here, but apart from being not very courteous the artist is still most apparently painting a photograph in order to say something about the photograph, and not stealing the idea and denying the original photograph ever existed. If it was seen as ‘good’ art, or more beautiful than the photograph, would this still be a criminal act? If so I think it would be a shame – the censoring or punishment of an artist perceived to make good art to me would be more criminal than the lack of acknowledgement of what the work was based on. And I guess my argument is that bad art, although often offensive, can’t be classified as a crime. Should Banksy have spray-canned ‘after Tarantino’ on his work depicting John Travolta and Samuel L Jackson a la Pulp Fiction? And actually, while we’re on the subject of Banksy, shouldn’t we be attempting to arrest this vandal and cleaning up all those lovely buildings he has graffitied rather than celebrating him and lauding him across the media? He is after all breaking the law…
I have posted my stance in a bit more detail in my own blog – with a link to this and to Making A Mark, which also has a thorough discussion of the facts and issues. Yes, there are other situations where things become more complex. Banksy is a fascinating case in point, but as no-one seems able to ‘catch’ him or her, that is perhaps a tad hypothetical. I am also in the next couple of days going to post a more radical approach to ‘fair use’ for artworks which you might like to consider. My blog is at http://eclecticlight.co and includes material on cadmium pigments and the proposed ban. See you there too?
Absolutely. Looking forward to reading your thoughts!
I’m completely torn in this debate because as both an artist and (formerly keen) photographer, I know that contacting the photographer for permission should *always* be the first step. Clearly, this rarely happens, as I can only imagine the complete lack of permission-seekers queuing up to ask to use an image of Jimi, Marilyn or Audrey. Iconic photos have always spawned seas of derivative artworks – mostly, IMHO, awful – but then there are some that take an image to the next level, e.g. the Obama/Shepard Fairey poster. The Associated Press rightly owns the image, Fairey used it without permission and sold stacks of merchandise from his (and in his words, “fair use”) work from an original photograph. That case was confidentially settled out of court. Wish we could know the details…
Any time I use a photo [that I have not taken], I use it as reference only, carefully altering, changing, interpreting the image to suit my project. It would not be recognised as a work based on the original photograph unless you were to watch my process of evolving my the reference material. In this way of working, no one gets hurt. If, however, someone were to use one of my photographs – a moment where I capture a moment in time uniquely experienced and documented by me alone – I’d expect to be asked first. Granted, there are moments repeated so often that anyone can photograph them 100x over and that’s fine; go hog wild. Examples: most architectural photos, or natural places e.g. waterfalls, canyons, etc. However, when the photo is clearly a unique moment, or composed, created art by a photographer (portraiture being a perfect example), then why not ask for the permission? If you don’t receive the permission, move on, there’s plenty of art to make.
In short, what a minefield, but artists should respect photographers and ask. (Bear in mind, I’m only talking about artists vs photographers here. Painting/drawing a work ‘after’ another artist is a whole ‘nother kettle of fish.)
Really interesting comments Jen, I didn’t know the story about Shepard Fairey and Associated Press. But surely the image of Obama is heavily stylised and very much Fairey’s design now?
Really interesting thought too about how unique the photo is…and also what you say about the process that is undertaken to create the work based on a photo. If the artist that had used one of your photos to create a work had very heavily ‘stylised’ it – developed the ideas, the mark making, the colour, to create something that is very clearly their unique vision of the photographic image, would you still feel permission should have been sought?
I think the majority are in agreement that at least asking permission is the courteous thing to do, but the jury is still out (well for me anyway!) on whether it should be law.
Its not plagiarism it’s studying another artists work the artist being the photographer in a similar way someone learning the guitar is not guilty of plagiarizing the beatles when they practice a hard days night, however they dont enter it in the charts and pass it off as their own creation.
It is a bit tricky. Personally I have used images from newspapers for a couple of my artworks but in different mediums. They were adverts but will have the same restrictions as a photo. One is an exact replica done in felt and the other is altered. I also have a picture after Monet and marked as such which I am told is perfectly acceptable. Having said that I would not copy someone’s picture as Tuyman has done, I feel it is a direct challenge to the photographer and as such it is no surprise he was taken to court.
Very rarely do I use a photograph not my own as the basis of a painting. However last year I was inspired by a wonderful photo inTheTimes of storm waves crashing over Seaham lighthouse. I sought permission from the photographer and the copyright holder North News to make a work based on the photo. Not only did they happily agree,but requested a photo of the completed painting. They then asked MY permission to post it on Twitter! Mutual respect,great result all round.
Yes that has to be the best way of doing about things if it is possible…mutual respect is a very positive outcome. Thanks for sharing your experiences.
I recently painted from a photograph of someone else as my own photo,s where not good enough. my own photos were taken on a very dull day and they did not reflect my feeling for the mountain(Tryfan). Pleased as I was when it was completed I knew that I had to contact the photographer and explain my reasons for using his photo. He sent a really good note back asking me for a bigger print, stated he thought the painting better than his photo. I felt it was courtesy to ask for permission as I knew he had copyright even though my painting was not exactly the same as original..
I believe that if someone else’s work is a recognisable copy of someones i.e. as Pat says, permission or an attribution is acceptable.
it is quite a grey area. It would seem that a hyperrealist might be plagiarism yet they probably would not say that themselves. There is a huge tradition of photocollage that has not been subject to similar forces and quite rightly so. It is part artistic maturity to let these things go, although sometimes its not nice when others progress ideas that are changed beyond being close enough to be plagiarised, but once the work is complete, is it really the artist’s any longer?
Photographers would seem to be equally subject to similar laws. For a start it is usually required to sign release forms to show someone’s face. But what about a photographer of artwork, in a common sense, architecture’s forms often become what creates a good photograph, or is it a good architect?
There was also a law trying to be passed that would mean similar photos of the same thing could be subject to copywrite law. But we can see the ridiculousness of that, only one picture of each famous monument etc. and it might be terrible. The photographer takes a style on to the object, just as this painter has done here, as another might to a piece of furniture and not be copywrite infringement because it is transformed.
I think photographers would have to subject themselves to the same laws if this verdict becomes the norm, and that would mean very little photography being made, what 0.0001% of photographs would pass this test i wonder?.
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