Revisiting “Copyright Infringment”
Ten years ago I wrote this post on Facebook, wanting to get the opinions of my many artist friends on this delicate subject. I was having a meltdown of sorts at the time because I was being brutally attacked online. I probably should never have accepted this commission in 2011. However, this particular artist, whose painting was the inspiration for my client’s commission, was my reference. That should have stopped me right there. But, the original berkel slicer artist did not, and does not, have a copyright and singular rights to painting Berkel Slicers. Here was my post:
February 5, 2014
I want to thank my friends who offered kind words, thoughts, and encouragement, during the last two difficult days. I came very close, at about 2 in the morning, to just throwing it all (paints, canvas, pastels, everything) in the garbage. I haven’t cried that hard, or been that devastated by insults, threats, horrible names, in all my life. As a person who knows the law, however, I want to clear some things up for those who may be a bit confused or just don’t know what happened.
In 2011, I received a commission request from a friend in Washington DC to do an oil painting of a Berkel Slicer. I had no idea what that was. He had gone to Italy for his 5yr anniversary, and being the cook that he is, he fell in love with the Berkel Slicer when he saw one in action in Italy. He didn’t have the space for an original slicer, but he really wanted a painting of one to hang in his kitchen. …. um …. okay then.
I agreed, but told him he had to send me pictures. I had no clue what it was, nor had I ever seen one. He sent me an image, and at first I thought it was a photograph, until, upon closer inspection, I realized that it was actually a painting. I did not know the artist.
My friend said he would like a painting like the image he sent me. I asked him if he had contacted the original artist and he said “no.” He told me that he loved my work and just wanted a painting of a Berkel slicer for his kitchen. Nothing fancy here. He just liked this particular model depicted in the original painting.
I told him that I could not copy the painting. I could paint the Berkel Slicer similarly depicted in the reference, but would be changing the colors a bit, values, background, size, and reflection. That was the only way I would do this commission for him. He agreed.
And that is what I did. Please understand something — you cannot copyright a “thought” or “patent” an idea. For instance, this artist painted the Berkel Slicer with a reflection of the SF MOMA in the wheel. If I had painted my Berkel Slicer with a reflection of the SF MOMA in the wheel then I have violated Copyright. Understand? However, if I paint the Berkel Slicer with the Capitol Building in Washington DC in the wheel, that is NOT Copyright. The artist does NOT have Copyright to “reflections” – where they are or what they are – anywhere in his painting. The reflections are his conceived idea, but unless I copy the exact idea, I have violated no copyright laws.
Also, his background is completely white. Mine is several shades of off-white, yellow-white and heavy brushwork in the oil. No justification being made here, but also, no Copyright violation here either.
If, an artist paints 3 roses – two red and one pink, and another artist is inspired by the work, flips it and paints one pink and two red roses, is that Copyright infringement? Actually, no. It is not.
What we take from this is that, an artist’s rights to creative work is a fine line. Inspired by another, go for it. Want to try your hand at a same scene or style of painting, go for it. Just because this artist in New York painted a Berkel Slicer, does not mean that he owns all rights to Berkel Slicers and paintings thereof. I think Berkel may take issue with that.
Secondly, this particular artist, took great pleasure in calling me names and trashing me as if I had done something “wrong.” Because I consider myself an honest person, I admitted that his image was provided me as a reference for the painting I created. However, it was not my intention to spoof it as mine, sell prints, or claim to be the original artist with the idea of painting a Berkel slicer. I changed it up enough to make mine different in some ways, although similar in others. I know, a fine line. Still, I wasn’t going to lie to the guy. I felt bad about it, because, well, maybe I should not have accepted the commission.
I hate it when people think they know something about something, when they actually know nothing at all. Talk about the kettle calling the pot black! If you were to see and enjoy the work of this artist, you would know that in practically every painting, he has violated copyright, trademark, logo, name recognition, and marketing identifiers. He does not, and has not, noted the names of those artists who worked tirelessly to create those trademarks, logos, etc, for brands and products that we enjoy. He has turned their work into a collage in a large fine art painting. This IS Copyright infringement, just in case you want to know. Just because he depicted them in a creative collage does not original artwork make. In other words, where as my one painting does not violate the law, most all of his paintings are a blatant violation. He uses exact replication of logos, trademarks, everything, in his paintings. Yeah. It looks cool. NO. It is not right. Kettle calling the pot black.
Personally, I thought he had serious nerve to publicly flog me on FB to promote his own work. Doing this at the expense of a grandmother, no less, with about as much connection to the NY Art Scene as my dog! I received hate mail, threats, horrible and abusive name calling. I haven’t slept in about 30 hours. Below, I have included a side-by-side of his painting and mine. Next to that, I have included his recent Times Square painting.
I think we should all pick our fights. I was not the only one who thought that public flogging was unreal and unjust. I took a deep breath, stepped back, and he finally came around to seeing things more clearly. He took down his bully fest at my expense and at least we are now civil. That doesn’t make what he does right, and that doesn’t make what I did wrong.
I would love to hear your thoughts on this subject … a very delicate subject at that, for all artists who find inspiration from other artists.
