Roy Lichtenstein's estate claims copyright over the images he appropriated

Ryan sez, "My band is about to release a new record, and we decided to use a friend's painting for the cover. One day before our label was set to send away for CD & LP pressing we received an email from Shelley Lee, the Manager of Intellectual Property for the Estate of Roy Lichtenstein saying that the painting was an adapted Roy Lichtenstein image and a violation of copyright. I've been doing some research, including talking to the artist and an intellectual property lawyer, and I just don't want to feel bullied by Ms. Lee. It turns out our friend's painting was part of an appropriated art course she took in college, and she appropriated her painting from the same source image Lichtenstein used for his own work. We don't want to frantically search for an entirely different album cover at the last minute if it's not necessary. What can we do? The link I've included is to our band's website, and the main page is a posting I just put up."

A Copyright Violation??? (Thanks, Ryan!)

• [harrisonlong]

  Be careful on the admissions of homage and the like, as they can be used against you. I would suggest keeping a careful record of the correspondence you’ve had with the artist to make clear that her intention was not homage. Multiple people can free appropriate from the same source material. This would be like the Warhol estate making copyright claims on Superman or Mickey Mouse, solely because he used them as source material.
  The work you wish to use for the cover has enough significant differences to found different in kind and substance from Lichtenstein’s work. You can also make arguments of scale, not just content. Roy’s pieces are HUGE compared to an album cover.
  This case should be a dream for a copyright lawyer. You should fight the the good fight, and a move for declaratory judgment is a good idea. The lawyer for the Lichtenstein estate is going to be motivated by crass commercial gain. She will likely withdraw the treat than go to court. If she lost to you, she would be prevented from making the same threats (and extracting licensing fees) for other “appropriators.” She’ll cave, and if she doesn’t, you’ll still likely win in court.

• [naju]

  17 U.S.C. 103(b): “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”

  From the house report notes on this section: “Copyright in a ‘new version’ covers only the material added by the later author, and has no effect one way or the other on the copyright status of the preexisting material.”

  Lichtenstein has no claim here.

• [slamorte]

  Your best bet is to create a copyright controversy and try to get exposure on blogs like BoingBoing.

• [kalahari]

  Oh the irony…..Send that lawyer all the comments here, but bold and big font on comment #31 from “naju”. That says it all. Plus, there is no such thing as bad publicity. The estate will come off looking like a bully if they pursue it. FWIW…..(ps I really like your artist’s derivative piece. Very nice comment on the original….) And now I’m gonna go listen to your band!

• [David Barsalou MFA]

  DECONSTRUCTING ROY LICHTENSTEIN © 2000
  DAVID BARSALOU MFA
  http://www.flickr.com/photos/deconstructing-roy-lichtenstein/
  http://davidbarsalou.homestead.com/LICHTENSTEINPROJECT.html
  http://www.facebook.com/group.php?gid=230408213304&ref=ts

• [Anonymous]

  The original image most likely belongs to the publisher the artist was employed by, if they even exist.

  There are some sites out there that list original artists if you can figure out which it is
  http://www.studio-international.co.uk/painting/lichtenstein.asp
  http://davidbarsalou.homestead.com/LICHTENSTEINPROJECT.html

• [Daemon]

  What are the odds that Lichtenstein actually had permission to adapte/copy the image in the first place?

  • [Ultan]

    If Lichtenstein or his estate bought or licensed the copyright to the original work then Elsinore will be in trouble if they use it as cover art.

    IMO the cropping argument isn’t going to work for the estate, there are too many earlier pictures with essentially the same subject and composition.

• [Hools Verne]

  How much money did Lichtenstein’s estate pay the Kirbys? Fuck em.

• [kpkpkp]

  Keep your cover – it more closely follows the original than Lichtenstein’s, and as a bonus, if Lichtenstein’s estate makes a big fuss, it is free advertising for Elsinore

• [Rick.]

  Roy sure did butcher that hand in his version. Yeesh. Those fingers are like tentacles.

• [bluefelix5]

  Both artists drew on the same source material. And the friend’s work looks more like the original than Lichenstein’s (brown hair), anyway.

• [mdh]

  I’d say do whatever generates the most publicity for your band.

• [Scixual]

  Eurgh. This sort of thing ticks me off.

  Art seems more and more to be straitjacketed by copyright, which is the opposite of what it’s supposed to be for.

• [dculberson]

  You might end up with a fight, but I think you’re in the right. There’s no way that Lichtenstein’s estate can claim copyright over an image just because he used it in his art.

• [das memsen]

  tell the estate to go fuck themselves, pardon your french, and appreciate the irony of the situation.

  and if you have a fight, take it to the people! i’m a filmmaker and will gladly back you up on this!

• [jhhl]

  “When you steal from me, you steal twice” — supposedly Milton Berle

  • [Abracapocus]

    …sure that wasn’t Shepard Fairey?

• [joeposts]

  1. Use a plain white cover
  2. Re-title the album as “Censored by Roy Lichtenstein’s Lawyers”
  3. ?????
  4. PROFIT

• [NDanger]

  I checked out all 3 images on the web page. It looks to me like your artist drew on Lichtenstein’s copy rather than the source.

  I say that based on several shading lines, the most visible example being the shading below the index finger. Also, Lichtenstein inserts a line above the man’s eyebrow. Your artist does also. But it isn’t on the original. There are other shading similarities as well.

  I wish I could advise you on the legal ramifications, but I don’t know about copyright law. Still, I think it is safe to say that your artist appropriated from Lichtenstein’s appropriation, rather than the original.

  • [Chrs]

    It really surprises me that you’d say that, since the bottom image is much more similar to the left image than to Lichtenstein.

    On the off chance that people will pay attention to it…

    IMAGE KEY: The top and right images are Lichtenstein, the left image is the source material, and the bottom image is the artwork they’re using.

    • [Anonymous]

      I agree with Chrs, I think you have read the key wrong. The source material (left side) has the line above the eyebrow, Lichtenstein’s piece (right) omitted that line.

  • [Anonymous]

    Are you sure you haven’t mixed up which is the Lichtenstein and which is the source?

    Lichenstein is the blond version, I’d thought. The original has brown hair.

    Your comment seems to be comparing the two brown hair versions and actually confirming the non-violation opinion.

  • [Kayjayoh]

    No, the line over the man’s eyebrow is in the original, not the Lichtenstein. You may be mixing them up. The Lichtenstein is on the right, with the blonde (and no eyebrow line on the man). The original is on the left with the brunette (and the eyebrow line on the man).

  • [Anonymous]

    You might want to have a look at that again…Lichtenstein’s is the one with the Blonde hair!,

  • [kpkpkp]

    I think you have the two reversed; the original is on the left and Lichtenstein’s Kiss V is on the right.

    http://blog.seattlepi.com/singleout/library/Roy-Lichtenstein-Kiss-V-133905.jpg

  • [cinemajay]

    I have to agree with Chrs, the band’s piece is obviously much more in line with the original than Lichtenstein’s. Look at the shading on the hand and you’ll see this is obvious.

    Also Lichtenstein made things “glossy” like in the tears and her lips. The band’s artist pays direct homage to the original by leaving this out.

    I’m inclined to say you’re not seeing what is plainly there–Lichtenstein’s camp has no case.

  • [zyodei]

    Are you on crack? It’s clearly based on the original. Look at the tears. Look at the shape of the hair. It is absolutely NOT based on Lichtenstein’s.

    Here’s what to do: Master it as is. Send a provocative, rude email to this lady. Try and provoke her into suing you or provoking further action.

    The publicity over the ensuing months and years, and the utter absurdity of it, will ensure the success of your band.

    In court, she’s got nothing.

    • [Felton]

      Anyway, I heard that it’s mostly political hopefuls who are doing crack these days. ;-)

• [Tom Benninger]

  To make it clearer, I’ve created a graphical comparison of the works at: http://cleverruse.com/2010/05/06/appropriated-art/.

• [Anonymous]

  was the image lichtenstein appropriated in the public domain?

• [Anonymous]

  “El que le roba a un ladrón tiene 100 años de perdón”

  “Who steals from a thief gets 100 years of grace”

• [loonquawl]

  Is there a word for reverse astroturfing, i.e. creating a situation that will bring the paragons of a just cause onto the scene, to feed off the resulting bruhaha, publicity-wise?
  —
  I propose ‘promixing’ – Promix is a form of synthetic soil. Synthetic soil giving rise to real grass, as opposed to astroturf, where the grass is fake.
  —
  So i would think Elsinore is promixing us, or how did the Lichtenstein estate get notice of the impeding copyright-non-violation?

• [Anonymous]

  open the graphic in Adobe Illustrator.
  then do “LIVE TRACE” – select “color 16″

  ta-daa, now you have a new orignal drawing based on an existing work, which is copyrightable under the DMCA

  citation: see times vs. fairey (or read the DMCA)

• [NDanger]

  I apologize, I did get mixed up – I assumed the image on the left was Lichtenstein’s since it has his name on it.

  That being the case I think you have a solid argument.

• [Hamiltwan]

  If the image is truly taken from the source material (which you would have to prove in court, and NDanger suggests that might be difficult) you are free and clear from liability to Lichtenstein. But you still would be liable to the author of the original image if it was not in the public domain (and you don’t have some sort of license).

  Should you go to court, and lose, you could be liable for statutory damages, starting at 750 dollars per work copies. So ignoring the letter could be dangerous.

  On the other hand, you could sue for declaratory judgement after making a single copy, if the Lichtenstein estate refuses to drop the issue, limiting damages until a court decides the issue. A return letter stating your claim and explaining that you’re willing to file for declaratory judgement (and request attorney’s fees should you win) would probably chase them off. You might even be able to find an attorney to draft one for you Pro Bono, especially given that many copyright lawyers are low on business right now.

  • [bwcbwc]

    If you can find the copyright owner of the original work, maybe you can license from them and then countersue. As a “graphic novel”, it’s possibly still under copyright. The main scenario where it would be public domain would be if they let the copyright lapse prior to “Mickey’s Law” being passed.

    Because Lichtenstein’s work is also appropriated, you might have a chance to get the suit thrown out of court because they lack standing to bring suit. (IANAL, but) If you make your own derived work off of an original, I don’t see how the creator of an earlier derived work can sue you. It’s the original that has the rights, unless your work is more similar to the derived work than to the original, which seems not to be the case here.

• [Anonymous]

  Am not an expert but have read some online information.
  Seems that the “intent” to violate copyright status bares quite a bit of weight. You may want to consider an appropriate little written statement with the CD design that respects the authorship of the image, pre-Lichtenstein and Lichtenstein. Mail this to his estate attorney for approval, then proceed.

• [Elite Hacker]

  How bout you offer to give them honorable mention on the album? I mean, it won’t hurt to try working it out and make it a win/win situation, rather than waste time/money.

• [Anonymous]

  I call BS. Remember, they can *claim* anything they want, but that doesn’t automatically make it so.

  Yes, it resembles the painting, but it’s also been changed considerably from the original work. In fact, everything is different- the colors, the eyebrows, the tears, the hair, the lips, the shading…the *pose* is the same, and that’s about it. Roy has no copyright on two people holding each other. I bet you could find that pose in a thousand comic books in a thousand variations.

  By Ms Lee’s definition, if I was to hold my wife like that and have someone take a picture, I’d be in “violation”. And that’s baloney. I’d say, “See you in court” and see just how many millions of dollars they’re willing to spend to try and stop this “similar but not the same” bit of artwork.

• [ElsinoreMusic]

  Our initial response to Ms. Lee was that we’d gladly put a liner note stating that it was an homage to Lichtenstein’s painting. But, this was before our artist told us that she’d used the original graphic novel image and NOT Lichtenstein’s. Her response, still, was that it was NOT an homage, but a violation of copyright.

• [Anonymous]

  Yeah, NDanger was probably just confused because the picture on the left has “Lichtenstein” written on the bottom, even though it’s only supposed to be part the title of both pictures put together in this image, for the purpose of the blog post.

  Anyway, Lichtenstein is a cock. The guy tries to make fun of comic book art, but he himself can barely draw. Like, jesus, look at the shading on the tendon coming down from the guy’s index knuckle. Not only is this a shitty copy of the original drawing, but it’s like Lichtenstein doesn’t know the back of his own hand. The shading makes no sense at all.

  It’s stuff like this that gives people the impression that all modern art is bullshit. Fuck the guy, and fuck his children who apparently share his lame genes.

  • [devophill]

    “Anyway, Lichtenstein is a cock.”

    QFT

• [Anonymous]

  What’s a record?

• [Anonymous]

  There is no detail in the album cover that is in the Lichtenstein and not the original. The artist copied the original – easily shown by examining the details. I wonder could you find a quote from the artist where he talks about using or interpreting other people’s image (or perhaps from a publication produced by his estate) that would undermine them.

• [Rick.]

  NDanger: You’re attributing details to the wrong piece. One look at the rubbery Lichtenstein hand will tell you that the Elsinore version is NOT based on it.

• [Erik Larsen]

  I think you’re asking for trouble. The original was part of a comic book and not isolated and cropped the way Roy Lichtenstein cropped it. Clearly the artist was following Lichtenstein’s example and trying to change it enough to be able to point back at the source material. It won’t fly.

  Ultimately–they have more money than you do–they’ll be able to fight longer and harder than you and they will probably crush you.

  If you have nothing to lose–it may be a fun fight–but it could consume a lot of time.

• [TimDrew]

  Roy must be rolling in his grave over this (shame on Shelly Lee!). There’s no case- the album artwork does not make use of the (arguably) Lichtenstein trademark benday dot screen, and, as others have pointed out, more closely resembles the original source.

  Anyhow, in the spirit of Duchamp, just draw a mustache on girl and call it fair use…

• [Abstract Monkeys]

  This is where it gets fun. You have a reasonable argument, because anyone should be able to make art from the same source material and sell it. They have a reasonable argument, because they spent a lot of time and money marketing Lichtenstein’s version, and you want to reap the results of those efforts. The popularity of Lichtenstein’s version was a factor in her choice to paint it and your choice to use it as cover art.

  I agree that you probably can find a copyright attorney willing to do the work pro bono, because it is an interesting situation.

  Copyright issues come up all the time with cover art–one of the reasons you see alternate art in the US and European, Canadian or Japanese versions of albums. You could always “release” the album in another country where you aren’t going to be sued.

  You might also find a way to give the art away for free to anyone who purchases the album. Once the money issue goes away, litigation usually falls by the wayside.

• [Baldhead]

  Would this not be the same as Disney suing someone for making a new version of Snow White? public domain or not it’s clear the original copyright is NOT Lichtenstein’s.

• [Anonymous]

  As others have said, this should be a win for you either way.

  Typical bully-tactic cease&desist letters are never followed up. If they follow up, you can get free publicity. If they take you to court, you have a strong enough argument that you would probably win. (& more publicity)

  The only thing you would need to do is stay engaged with the media, pointing out the ‘shared appropriation’ at every opportunity.

• [tomrigid]

  This is a minefield. All we know for sure is that copyright is expensive to litigate, defendants are rarely awarded attorney’s fees, and outcomes are highly unpredictable. Assume nothing, and pray for reform.

• [ElsinoreMusic]

  You’re all so amazing! Thank you. Any further advice is much appreciated. We just want to know if we can use this image without getting into too much(any?) trouble. I think a letter to Shelley Lee is in order to see if Roy’s estate somehow owns the copyright to the original source image. Any thoughts?

  • [TimDrew]

    perhaps send her this article as well:

    http://msl1.mit.edu/furdlog/docs/lichtenstein_copyright_thief.pdf

  • [das memsen]

    Send them a link to these comments- no sane, respectable person familiar with the world of art is going to support their ridiculous claim. Roy Lichtenstein, of all people- are they that ignorant and greedy? Any press is good press for you and bad press for them, so politely tell them you’re going to release the album, here’s why, here’s some links that shows public discourse is on your side, and if they want to try to stop you legally, it’s going to be a waste of time and money for everyone involved, but there is no way they can win this one.

• [Anonymous]

  They should take it to court, especially if they can get someone like the Comic Book Legal Defense Fund to back them. This is honestly a Win/Win Situation: IF they somehow manage to get a judge blind or stupid enough that they LOSE, then they’ve established legal precedence for the CLBDF to file a class action suit against the Lichtenstein Estate for pretty much the entire body of work of that reprehensible hack.

• [Anonymous]

  Lots of people are saying that the Lichtenstein estate has no leg to stand on because he didn’t create the original/primary artwork. Be this as it may, Lichtenstein did create a derivative work, and his original contributions to this artwork can be copyrighted. This copyright will almost certainly cover Lichtenstein’s decision about what frame (and crop) to reproduce, and isn’t simply limited to the changes in halftone size and other graphical changes to optimize the aesthetic appeal of the painting. Unless you can make a solid argument that Elsinor independently arrived at the same selection from the comic book (and it should be pretty easy to demonstrate that they did not, given the band’s familiarity with Lichtenstein, the extreme improbability of the band independently selecting the exact same crop from the exact same comic, not to mention their intention to pay homage), this is far from a slam dunk case for Elsinor.

  I also fail to see how precluding Elsinor from copying Lichtenstein is going to be some great achievement for the arts. What originality or advancement to the arts does their homage to Lichtenstein make? Has it expanded art in any meaningful way? Or is it simply a knock-off with a few subtle changes, a Bolex to Lichtenstein’s Rolex?

  • [Scixual]

    We don’t get to decide what is valuable art by rule of law.

    • [Anonymous]

      To some extent, the law is concerned with things that are valuable and that advance the arts, or so says the Constitution, which authorizes Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This so-called IP clause is the basis of Copyright laws in the US, and it makes clear that progress is (or was) an important policy consideration.

      Now it’s true that there is not supposed to be judicial discrimination in terms of what is good art and what is not (so decorative piggy banks should theoretically receive the same protection as Degas sculptures), but it’s also true that in order for works to gain copyright they must show some minimal amount of originality (exactly how much originality seems to vary from case to case), and slavish copies do not qualify. This clearly suggests that some progress or innovation is required (this progress requirement is seen much more clearly in patent law, where true innovation is required—and justified—on the same Constitutional/policy basis).

      And note that this is different than saying that because something is original (and thus copyrightable), then it does not infringe on another work. The Lichtenstein pieces are original, but they also (probably) infringe on the original comics (note that Lichtenstein may have a valid fair use defence, though this is debatable). In this same way, the Elsinor painting may be original, but this doesn’t mean that it doesn’t infringe upon both Lichtenstein’s editorial choices in selecting what source material to paint as well as the original source material itself.

      Finally, as much as you might not like that idea that “[w]e don’t get to decide what is valuable art by rule of law,” there are more than a few instances where expert opinion of the value of a piece of art have played important roles in legal decisions. See e.g., Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2nd Cir. 1980) (where the artistic value of a belt buckle and it’s recognition by the Metropolitain Museum of Art was discussed in determining whether the buckle was purely functional, or also artistic in nature).

      I’ll reitterate that my main objection was not so much as to the value of the art, but to the innovation and progress it embodies. I’m not saying that comic books or pulp novels don’t get protection while paintings and “serious” novels do. I’m saying that something that is a virtual copy with minimal innovation may not deserve as much protection. This is something that a lot of you seemed to think when it came to Nissan copying Karen O’Leary by making cut-paper-maps of cities, even though that artist had originally borrowed the technique from others (see http://www.boingboing.net/2010/03/23/did-nissan-or-their.html). The big difference seemed to be that Nissan, unlike Elsinor, was a big company with deep pockets, while the O’Leary, unlike Lichtenstein, was not rich; from the vast weight of commentary it seems irrelevant that although both O’Leary and Lichtenstein have borrowed tremendously in making their work, and those they have borrowed from have received little attention or public acknowledgment for their work. It seems that Boing Boing commentators are mainly basing their opinions on their perceptions of redistributive justice… and while I think it’s not an unfair stance, it’s grossly hypocritical to pretend it comes out of some principled understanding of copyright law.

      • [Anonymous]

        I’m not saying that comic books or pulp novels don’t get protection while paintings and “serious” novels do.

        Yes, that’s pretty much what you’re saying, as for the rest of it, TLDR. Lichtenstein’s estate has no legit claim here, too bad for them, and art nerds who don’t realize dude was a plagiarist in the first place can realign their historical compasses accordingly.

• [Felton]

  NDanger already said that he/she was mistaken about which image was which.

• [Anonymous]

  It’s simple, take the original, and use it full size, putting a “censored by Lichtenstein” over just the part Lichtenstein cropped and painted. Basically all of the original except the little square.

• [tuckertuck]

  I don’t think their case is helped by the fact that it is cropped the exact same way as the Lichtenstein painting.

  Everyone seems to be championing the fact that it is more like the original but that is its biggest weakness. I wouldn’t use it because it is not a very good piece in that it hasn’t added anything above and beyond the original.

  And the phrase that was added, “Oh Charles, Thank Goodness! I thought you’d be gay forever” is cropped out. Which is the commentary the artist added and probably the reason why they chose that particular image in the first place.

  Why not use the out of copyright original and tell the lichtenstein estate to take off.

• [Marion]

  Ms Shelly Lee should go stick her head in a toilet and pull the handle. If Roy Lichtenstein chose to freely copy or interpret comic book art, then he can not complain about someone else doing the same thing. The artist is dead. He has nothing more to say. Copyright lawyers should just find another line of work and stay away from art. I’ve been an artist for the last 60 years, and I am nauseated to keep hearing about law suits everyday.

• [gabroll]

  Keep us posted on the outcome, this is infinitely fascinating. The proverbial Pot Lichtenstein calling the friend of a Kettle a rip-off artist. That’s exactly how that saying goes, right?

  • [Anonymous]

    It looks lie we’ve got a case of…. Prior Art

    (Removes sunglasses) YEEEAAAAHHHHH

• [Anonymous]

  It looks lie we’ve got a case of…. Prior Art

• [planettom]

  Convince me your new version would exist without Lichtenstein’s.

  If you’re not ripping off Lichtenstein, tell me the name of the artist you are ripping off.

  • [KeithIrwin]

    Whether or not it would exist without the Lichtenstein piece is irrelevant to copyright law. You can be inspired by whatever you want. In this case, although inspired by his painting, she did not copy it in any meaningful sense of the word.

    And although the person who mentioned how it was cropped had a point (although many of Lichtenstein’s other paintings weren’t cropped, but, rather, we exact single panels), in this case, the cropping is only similar differing both in the aspect ratio and exactly how close in its cropped. Making similar artistic decisions is also not protected by copyright.

• [Anonymous]

  Lichtenstein built his career on the backs of great comic artists Jack Kirby, Russ Heath, Tony Abruzzo, Irv Novick, and Jerry Grandenetti, who rarely received any credit. I’d say go with it and point this out the next time it comes up