April 13, 2010
 

If The Copy is Art, What's the Original?

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By Kurt Brokaw, Culture Editor

This week's Atlantic column in MAJ (11/19) raises important and not well understood issues of who owns ideas. Ten points are made. Some appear factual and serious; some might be interpreted as facetious. It's a long task to sort them out, but let's deconstruct one that goes to the heart of copyright issues.

Consider point #5. "An idea always belongs to its creator. Someone else only has the right to use it, not own it."

Richard Prince has been photographing famous advertising photos for years, enlarging and exhibiting as well as selling them under his name. The Marlboro exhibit at the Guggenheim museum in New York last December (NY Times, 12/6/07) is a classic example. The Times headline expressed the issue point well: "If the Copy Is an Artwork, Then What's The Original?" Exactly. If Prince's copy is art, what is the original photographer's photo?

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The iconic Marlboro photos were taken by Jim Krantz, a respected commercial photographer. Prince has bragged about his right to shoot, exhibit and sell Krantz' work as early as 1992, when at the Whitney Museum of Modern Art in Manhattan, he stated "no one was looking. This was a famous campaign. If you're going to steal something, you go to the bank."

Prince operates in a very narrow window of copyright protection. He works under the precept that looking at an ad in a magazine is a different aesthetic experience than viewing it enlarged to gargantuan proportions, beautifully framed and carefully lit on the wall of a world class museum. The fact that the Guggenheim advertises, promotes and merchandises the photos Prince took of Jim Krantz' work ($9.95 in the museum gift shop), bringing added revenues to the museum and to Prince, doesn't seem to enter the equation.

About now you may be reminded of George Clooney's line in the recent movie "Michael Clayton" in which Clooney, playing a fixer in a sleek corporate law firm, states "the truth can be adjusted." It's a great line. It's almost as good as Jerry McGuire's "show me the money." Adjusting product and company truths is what advertising has been doing since the 19th century when Charles Dickens and James Joyce were knocking out some of the industry's first broadsides and pamphlets. "Michael Clayton's" studio marketers liked Clooney's line about adjusting the truth so much, they made it the theme of the picture in the posters and one-sheets. It's the movie's core value and it obviously resonates with the upscale audiences that have seen the drama or rented/purchased the DVD.

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But this is essentially what Prince has done in real life--adjusted the truth of Jim Krantz' photographs by enlarging, framing and displaying them in a setting people pay money to view, and on museum advertising posters attached to light poles up and down the canyons of Manhattan.

Except what about Jim Krantz, or, for that matter, any photographer whose work is preempted and repackaged by someone else? As the NY Times asks, if Prince's copy is art, what is Krantz' original? Just another ad? You may be starting to wonder what's wrong with this picture. It may not look, feel or smell right to you.

In the vast majority of ad campaigns that have been created through history, the ideas that power those campaigns--big, small, or indifferent--become the property of the marketer the instant they appear in paid media. Does that include the photographs that are used in the campaign? Well, it depends on whether they're stock photos or original work-for-hire.

Most existing photos from stock agencies or a photographer's own files are leased to marketers for a fixed period of time in a detailed media schedule, for an agreed-upon price. For original work-for-hire, such as Jim Krantz' Marlboro photos, the marketer usually buys ownership rights to the pictures. But Richard Prince didn't buy photo rights to Jim Krantz' work from Kranz or anyone else. He operates under the belief anyone can photograph an image in a magazine ad, blow it up pixel by pixel, and offer it to a gallery, museum or auction house as A Work Of Art. Without crediting the original creator? Without crediting the original creator. As Prince told The New York Times, "I never associated advertisements with having authors."

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What's wrong with this picture?

In 2003 Christie's auction gallery in Manhattan offered a Prince photo of a Jim Krantz photo of a mounted cowboy approaching a calf stuck in snow. Jim Krantz called it "Calf Rescue" (1998), and it was taken on assignment for Marlboro. The New York Times reported that Prince renamed his photo as "Untitled (Cowboy) (2000) by Richard Prince." Christie's sold it for over three hundred and thirty two thousand dollars.

The 2007 Guggenheim exhibit was another triumph for Prince, for the Guggenheim, and certainly for Philip Morris. What cigarette advertiser wouldn't want some of its most famous outdoor photographs raised to the level of art that New Yorkers and visitors from all over the world would pay to see and take home? Especially since the Guggenheim museum has been receiving corporate funding from Philip Morris since 1978. Is the truth here becoming a little more easy to discern?

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As Atlantic magazine suggests in its new positioning, you may indeed want to Think. Again.

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