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Can You Commit Copyright Infringement By Using Your Own Work? 172

Mrs. Grundy writes: Notorious appropriation artist Richard Prince has been in the news again with his show consisting of screen shots of other people's Instagram photos printed as large inkjets on canvas. These prints have reportedly sold for $90,000. In 2013 Prince successfully defeated a lawsuit for a previous appropriation by convincing the court his work was 'transformative' and it's likely this new work would also find a sympathetic ear in the court. Among the photographs whose work he used this time were several from the Suicide Girls Instagram feed. In response, Selena Mooney, cofounder of Suicide Girls, began offering exact replicas of Prince's pieces that used her photographs for a mere $90. Photographer Mark Meyer looks at the bizarre possibility that if Prince's use of Mooney's work is transformative and fair, Mooney's might be copyright infringement.
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Can You Commit Copyright Infringement By Using Your Own Work?

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  • Correct, but silly (Score:5, Insightful)

    by AK Marc ( 707885 ) on Saturday May 30, 2015 @03:45PM (#49806093)
    It's simple, if it's copyrighted, it's copyrighted. It doesn't matter that it's a derivative of your own earlier works. That a screenshot (of someone else's work) is copyrightable is the problem. If you were to copy his method to come to a similar (or even identical) work, you'd be legal, but to copy his exact work, it doesn't matter that it's transformative of your original work.

    These issues have been well explored in music, where "borrowing" from others is well known and broadly practiced.
    • by Anonymous Coward

      That may be true, but what TFS doesn't mention is that they added a similar "transformation" to his version.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      As usual, the Slashdot summary is wrong, although even TFA doesn't make it very clear. The $90 version isn't an exact replica. There's another comment added to the bottom, and without digging into the details I'm guessing it's the presence of the comments that made the $90.000 version "transformative" (In fact it's arguably fair use as well, since it's commentary on the image). Now, of course, the $90 still isn't on the clear at all, because the idea of having the comments as part of the work was part of Ri

    • by UnknownSoldier ( 67820 ) on Saturday May 30, 2015 @05:46PM (#49806665)

      > It's simple, if it's copyrighted, it's copyrighted. It doesn't matter that it's a derivative of your own earlier works.

      It's not that simple.

      It didn't stop that idiot Zaentz from suing John Fogerty over John Fogerty [mentalfloss.com]. i.e. He believed John Fogerty had plagiarized John Fogerty via his earlier work "The Old Man Down the Road" which sounded too much like "Run Through the Jungle."

      How the hell can you be sued for creating a later work when you wrote earlier work?? How can the later work NOT be derivative when it is _your_ *style* ?? This is completely retarded.

      When you have the same bloody 4 chords repeated over and over [youtube.com] as Axis of Awesome points out, copyright gets ridiculous. What's next? Suing people because they used the same 3 notes? 2 notes? 1 note?

      • by AK Marc ( 707885 )
        John sold his copyright, then copied himself. That is a clear and not a problem, though maybe a good warning for people to not sell copyright completely if they plan on continuing to work in the industry.
        • John sold his copyright, then copied himself.

          Not according to anyone else. His argument was more that he has a certain sound and he sold off the copyright to a particular instance of that sound. The court agreed.

    • These issues have been well explored in music, where "borrowing" from others is well known and broadly practiced.

      And the result is still the same legal grey area and clusterfuck that it's always been. You can borrow most of a song and get away just fine because you're being "transformative" but if you borrow a single riff from an obscure symphonic version of a rock song you give up 100% of all income from your song to someone who had nothing to do with it. [wikipedia.org]

  • by Anonymous Coward on Saturday May 30, 2015 @03:45PM (#49806095)

    The whole act of putting the almost exact replica from the original copyright owner is a commentary on the issues of the weirdly selective broad reach of copyright. Thus it should be protected free speach.

    • by readin ( 838620 )
      Can she do that, or does she have to do something "transformative" like adding fine print to the canvass saying "Can you believe someone paid $90,000 for this?"
  • by Anonymous Coward

    Yes, you can commit copyright infringement by using your own work, since using your own work doesn't inherently mean also not using anyone else's work. Also, just because something is "your own work" in the sense that you created it doesn't necessarily make you the copyright holder at all. Next question please.

    • Also, just because something is "your own work" in the sense that you created it doesn't necessarily make you the copyright holder at all.

      Citation Needed.

      • by Anonymous Coward

        You need a citation? Try googling "works for hire".

      • Also, just because something is "your own work" in the sense that you created it doesn't necessarily make you the copyright holder at all.

        Citation Needed.

        The Beatles [forbes.com]

      • An author's copyrights can be assigned or transferred to a third party. This leaves the author with only the same rights as any member of the general public. (There are a few narrow exceptions, but nothing that would prevent the possibility of an author infringing on the copyright of a work he created)

        It's also possible for a person who prepares a work to not be considered the author. This is the case for works made for hire.

        And of course copyright isn't mandatory, though that just leads to works being in

  • by Greyfox ( 87712 )
    If a court decided that it was a different work (IE: Not derivative of the original piece) and you make an exact copy of that piece then yes, that's copyright infringement. If it's so different that you'd never have had that idea on your own, even if all the component pieces are your photos, the arrangement of them is not. If the piece is so similar that you could accidentally replicate it by, say, printing your photos on one page or some shit, then the original court would likely have not found the piece t
    • by Sique ( 173459 )
      You should actually read the articles, because the issue at hand is somewhat more complicated.
      • You should actually read the articles, because the issue at hand is somewhat more complicated.

        I wish I still had mod points today, because while I find what Prince is doing to be disagreeable and slimy... you're absolutely right.

        Now, regarding his high-end clientele - it's funny how often it's demonstrated that "a fool and his money are soon parted". Wealth is so obviously not a proxy measure of intelligence.

      • by readin ( 838620 )
        Could Ms. Girl take Prince's work and add, in tiny letters in the corner, "Can you believe someone paid $90,000 for this?" and then sell it?
  • modern "fine art" artists are jerks. In stead of learning how to make masterpieces they are all about attitude and crap. All modern art is just a drug deal game anyways, it's all about laundering money it now appears. What, did you really think some screaks of blue paint was worth 100 million to some Eastern euro people when the old masters don't fetch that much? Also I bunch of tax doges.
  • I thought the rule was, when the headline asks a question the answer is always "no". This must be one of those rare exceptions.

  • by Megane ( 129182 ) on Saturday May 30, 2015 @04:14PM (#49806221)
    And nobody has yet mentioned John Fogerty? [wikipedia.org] Slashdot, I am disappoint.
    • My first though was of the patent troll that accidentally sued itself. I'd provide a link, but my Google-fu is not working today.

  • by Anonymous Coward on Saturday May 30, 2015 @04:15PM (#49806225)

    "The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."

    • by Duckman5 ( 665208 ) on Saturday May 30, 2015 @04:30PM (#49806317)

      "The price point itself is an artistic expression of the desirable commoditization of art. By taking a formerly expensive piece of art and making it available to the masses, the artist instills in us the notion that the artificial scarcity of mass producible artifacts creates an elitist vehicle for abstract investments, whereas actual art belongs in the hearts and minds of people, not in their vaults. This performance makes palpable the disgust that we feel when confronted with the personality cult that drives the commercial art scene."

      I completely agree and wish that I had mod points. I see her response almost as a parody of the ridiculousness of the entire situation. I don't know how a court would decide, but I would definitely argue that the response is transformative in the same way as Prince's work. The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince’s.." and that would make the argument that they are a new work of art very difficult.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        The only problem is the way in which she was "marketing..these prints as cheaper alternatives to Prince's.." and that would make the argument that they are a new work of art very difficult.

        How so? They are alternatives, substitutes even. That is the point. The price for that piece of art is arbitrary and inflated by artificial scarcity, which she denounces and replaces with accessible art for the masses, thus showing us the true colors of the commercial art world, which, even when faced with appropriation art, still favors scarcity over impact. If the number of copies is so important to the art establishment, then how is changing the number of available copies not an artistic act? And to real

        • ... to really drive it home, she does it in a performance that is thinly veiled as a commercial endeavor: Art posing as business in response to business posing as art. You'd have to be a complete philistine to not recognize it.

          Brilliant! Everything is part of the performance! I really love it. It takes it to a whole new level of meta.Thank you for that insight.
          I had never thought of framing it like that. I had approached the situation from the assumption that her actions were of anger/spite, but you're absolutely correct. I wonder how deep this rabbit hole can go...

        • by Specter ( 11099 )

          Oh how I wish I had mod points! +1

  • by dex22 ( 239643 )

    If the barrier for what constitutes "transformative" is set very low, it's only reasonable for the courts to set the bar on what is considered "derivative" very high. If he has protection for transforming her own work then she should have similar protection for deriving from her own work. As soon as he does something transformative, it becomes obvious.

  • by localroger ( 258128 ) on Saturday May 30, 2015 @04:47PM (#49806403) Homepage
    The key to this is that Mooney is "transforming" Prince's "work" in exactly the same way he "transformed" hers. If her use is infringing, so is his. The "transformation" of simply making a large printout isn't going to fly. Copyright doesn't depend on the size or transmission method.
    • by Kjella ( 173770 )

      The key to this is that Mooney is "transforming" Prince's "work" in exactly the same way he "transformed" hers. If her use is infringing, so is his. The "transformation" of simply making a large printout isn't going to fly. Copyright doesn't depend on the size or transmission method.

      I don't think that argument is going to fly, because you could argue the same about landscape photography. Nature isn't copyrighted and you could have been at the same place at the same time choosing to capture the same image. Yet that particular image is copyrighted. I think the argument will be that even though it's transformational, it is also part original. Imagine for example a news article, even though it may quote pieces of a book for context, it clearly also contains a lot of the journalist's origin

      • Actually, if you generated the exact same picture yourself, it is not copyright infringement, but still copyrighted. It's one of those weird differences between copyright and patents. If you can show you produced the work independent of the other work, you are free of infringement claim. Same defense will not work in a patent case (although knowing infringement will usually get you a harsher penalty). Now of course, that's just theory, in practice that's an uphill battle to prove. And also, you can cop
  • by mbone ( 558574 ) on Saturday May 30, 2015 @04:47PM (#49806407)

    It's called "self-plagerism [ithenticate.com]," and it most commonly occurs when someone publishes a paper in a journal that claims the copyright. Then, if the author uses their text without approval, it's a copyright violation.

    • Sorry, but no. Self plagiarism is not a copyright problem, it is an ethical one. Even if you hold the copyright to a publication, it is an academic fraud to try and republish it on a new journal as if they were new results, without a citation.
      • by jaa101 ( 627731 )

        Sorry, but yes; self-plagiarism can be a copyright problem. Publishers usually have you sign away your copyright to them before they will publish your work. They can then legally prevent you from publishing your work with another publisher or yourself. Sure, the author usually retains a moral right to be identified as the author, but the right to profit from the work can be sold to others. If the author creates another work too similar to the first, i.e., they plagiarise themselves, then that can be just as

  • by bug1 ( 96678 ) on Saturday May 30, 2015 @05:10PM (#49806517)

    Just add their logo in the bottom corner of all the movies and call it art.

    But of course the law is about playing favorites ...

  • I do not know what happened in the last case, but this new "art" is literally just a screenshot of a post. Since he added nothign to it, other than a pricetag, no one would buy the transformative angle.
  • Comment removed based on user account deletion
    • The problem is that copyright has been treated as a right similar to free speech and real world property rights, maybe not as essential but still something that a person "naturally" deserves. Sure copying is stealing in some non-legal senses of the word "steal", and of course, there are no really natural rights since even the right to life is forfeit in certain circumstances (like when you have a dynamite strapped to your waist and running toward a group of people threatening to blow them up). But copyright

  • Sure, you can be sued for violating the copyright on your own creation. John Fogerty was, in one of the most egregious misuses of copyright law to date: http://mentalfloss.com/article... [mentalfloss.com] Yeah, John Fogerty got sued for writing a song that sounded too much like a John Forgerty song. Go figure...
  • They contain additional comments, making them transformative in the same way Prince's works were transformative.
  • My work is 'transformative' as well, when I re-encode blue-ray disks to .mkv

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