By Maria T. Cannon
Maria T. Cannon is a junior associate at Amineddoleh & Associates, LLC, in Manhattan, an art and cultural heritage law firm, practicing entertainment, media, art, data protection and privacy law. in Manhattan. Maria earned her J.D. from the University of North Carolina Law School and completed her undergraduate degree at Wake Forest University in English Literature. She is admitted to the New York State Bar.
Blondie in 1977, Image in Public Domain
I’ve never been one to prioritize comfort over fashion, but my choice to wear a pair of impermeable leather pants to a gallery event on a 95+ degree Manhattan summer evening is something I second-guessed as the night progressed.
Yet I instantly forgot about the sheen of sweat forming on my brow as I stepped inside the ineffable Morrison Hotel Gallery in Soho. This event was a reception for Debbie Harry and Chris Stein of Blondie, celebrating Stein’s recent book release. The Morrison Hotel Gallery (a true gem tucked away on Prince Street) was the perfect spot to hold such a party – known for its rare editions of photographs documenting famous musicians and rock stars, the gallery is worth a visit on any day (think: behind the scenes photos of the Beatles in concert, alongside performance shots of Dave Matthews Band in action), and especially when experienced in the glow cast by real-life rock stars.
Debbie Harry, for one, is as stunning in person as she is in current photos as she is of ones that document her throughout her career. In fact, that evening she stood in front of a pristine print of her younger self. Seeing the “blondie” of Blondie in double was striking: here was an incredibly talented and respected artist, and truly beautiful woman, whose essence as an artist shone as brightly in person as it did in the photograph hanging directly behind her.
That brought home – for me - the importance of photography as an art form. Perhaps because we all have pocket access to professional-level cameras in our smartphones, we have become immune to the actual skill artist-photographers employ in their craft. I can tap a red button on an iPhone screen with the best of them, but I could never capture the essence of Debbie Harry as an artist, as the photographers did whose work was on display that night.
To communicate what a moment in time is like through an image – and to have that image continue to resonate, decades later – is something to be appreciated. It produces a work product worth protecting.
Fortunately, for photographers of this ilk, the fallout of Warhol is that the law for license holders of images used for a commercial purpose is better than ever. Moreover, a number of lower court decisions – including Sedlik v. Von Drachenberg, discussed further below – valued the listenability and commerciality of the work at issue, viewed within the context of use. This is a departure from the pre-Warhol reliance on the transformativeness test (which essentially asked whether the artist put her own stamp on the piece, in order to change its aesthetic from the original iteration).
Now, the law is particularly favorable to photographers who licensed the original works. In Warhol, the infringing use was based upon the license of the original photo (taken by Lynn Goldsmith). The original license was (in the Court’s understanding) to “illustrate a magazine about Prince with a photo of Prince.” This close reading of the license agreement was great news for Goldsmith, but not so much for the Andy Warhol Foundation, which infringement was not saved by the insertion of artistic elements.
In Sedlik v. Von Drachenberg, a California jury found that the unlicensed appropriation of a photo turned into a tattoo and replicated on skin - free of cost - was not infringement. The tattoo artist was the famed Kat Von D, and the tattoo was applied on the arm of one of her friends.
Most importantly, the jury did not find that the commercial value of the replicated image (which arguably could have come from the way Kat Von D used images of the tattoo to promote her brand and social media channels) prevented the license holder of the original photo from obtaining a profit. Even the Instagram Kat Von D posted of the tattoo indicated that the job did not present a profit for her tattoo business, because she thanked her friend Blake for “letting” her tattoo the work.
The photo Kat Von D inked was of the musician Miles Davis. The jury found that her tattoo version added some woeful and depressive aesthetic elements to the original image, and this – combined with the fact that she did the work for free – won her the case. It is important to note that the case is currently being appealed.
Kat Von D’s rendition of the Miles Davis image looks nice as tattoo, but really sparkles as a print – and would look right at home on the walls of the Morrison Hotel Gallery, among the other prints of incredible musicians and unheard-of magical music moments.
Back to the Morrison Hotel Gallery on the night of the reception and my warm trouser situation. Once Ms. Debbie Harry had migrated away from the image of her younger self, I stepped up to a closer look at the photo. Standing there, the experience was so powerful that I felt I was in communication with the subject herself. I often have this experience with paintings, but less often with photographs – clearly, it simply took the right kind of photo to make me a convert.
Of course, I wanted the photo for myself. How cool would it look adorning my own walls? But the cost of artistic prints, as we know, can run a bit steep. In this case, the work was out of my budget (though the night was young, and I was in New York City, when fortunes change on a dime). In the end, I had to leave it behind after the party ended and the gallery closed.
Walking in the night, I wondered: it be possible to take a picture of the image on my phone, send it to a cheap printer and have it blown up to size? Possible, yes, but infringement – and morally wrong (as well as produce an inferior result).
Infringement aside, there are aesthetic reasons professional photography prints are expensive. They are printed on archival paper, made to withstand natural aging of the paper fibers. They also have been produced to the artist’s exacting specification: shadows, contrast, and color all come into play (the intricacies of which are above my pay grade). Plus, there’s no question that a dupe of an artist’s photo deteriorates faster than the one sold by the artist or gallery. All of the above is true, and a big part of why buying the real thing is essential, even if your friends wouldn’t notice. The larger issue is that buying a fake is a moral wrong. Which brings me to my final point.
Producing or purchasing infringing works of art – even for personal use – is not a victimless affair. Even if no one knows that a work hanging in one’s private home is not that of the actual artist, and is instead a faked copy (and an attempt to save a few thousand dollars), even if it is easy to do so – it’s wrong.
The rights of visual artists– and particularly, the rights of photographers – have never been more at-risk for infringement and copying. The rise of AI, combined with the advent of AI-enable personal tech, and the ease of online ordering (not to mention many Etsy shops, who will happily produce an infringing work for any customer, for a price), make theft of this type astonishingly common.
It feels like no one is watching, yet these are the times in which it is even more important to do the right thing and purchase the work or license. The impetus is now on the consumer to do the right thing – and his lawyers, to encourage him to buy the work directly from the gallery or artist, and to not buy a cheap, infringing version of it from a third party site. Or worse – to create a false copy for himself.
Plus, hanging a fake in your house – and stealing a profit from a hardworking artist in the process - is just bad karma. There’s not enough sage in the world to clear that bad energy out.
References:
Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
Sedlik v. von Drachenberg et al, No. 2:21-cv-01102, C.D. Cal. 2024.
Check out the Morrison Hotel Gallery here.
Grab a copy of Chris Stein’s new book here.