creative thievery= Whats yours is minefuture of entertainment convergence panel

The playwright Wilson Mizner once said, If you steal from one author, its plagiarism; if you steal from many, its research. And Pablo Picasso famously said, Good artists copy; great artists steal.

These quotes speak volumes about how our society views the exchange and use of ideas.

The line between inspiration and artistic appropriation is one that is continually redrawn and redefined because art doesnt live in a vacuum. All ideas are influenced by the others that came before them.

One of the most interesting aspects of this complex issue is how the discussion and the commonly accepted norms are shaped by context. What might be considered theft in one artistic medium is often considered little more than inspiration in another.

This panel today will discuss a variety of examples of this cycle of theft vs. creative inspiration accusations across industries from fine art to fashion to advertising to music to film, books, comedy and more.

Im going to introduce our panelists and then share examples of appropriation, each followed by a discussion of where to draw the line and when money is involved, who is due what. We may involve some audience participation by asking you to raise your hands in a vote of right or wrong after each debate, and I think well see that many of these issues arent simply black or white and our answers may change depending on the medium in question.

jonathan rosenArtisthrag vartanianFounder & EditorHyperallergicmary crosseExecutive ProducerDerby Contentsergio muoz sarmientoArts & Entertainment Lawyer,The Law Office of Sergio Muoz Sarmiento

panelists

Hrag VartanienIs the co-founder and editor-in-chief of Hyperallergic, the worlds largest art blogazine. In addition to his writing and commentary, he has curated numerous art exhibitions, including #TheSocialGraph, which was the first exploration of the evolving landscape of social media. He regularly writes and lectures about performance art, the online art world, street art and multiculturalism.

Jonathan RosenIs an appropriation artist whose contemporary works are expressed through found, sourced and collected collage materials. In the two years since he left his former life as an advertising creative and commercial director, Jon has become one of the hottest new talents emerging from New Yorks art scene. Jon is also launching an art-technology startup this year that will help artists of all disciplines find sought-after career opportunities.

Sergio Munoz SarmientoIs an arts and entertainment lawyer with a primary focus on intellectual property, rights of privacy and publicity, moral rights, authentication, free speech and artist-gallery disputes. He advises and represents contemporary artists, public charities and private art foundations. He has both a bachelors and masters degree in Art in addition his law degree. Sergio founded the Art & Law program in 2010 and teaches contemporary art and law at Fordham Law School.

MARLBORO MAN & RICHARD PRINCE

The Marlboro Man is the classic cigarette ad photographed in the 70s by Sam Abell.

Richard Prince photographed the exact advertisement, cropping out the Marlboro logos and printing it large format for gallery walls. Richard Princes photograph sold for $1 Million Dollars in 2005. In 2005, he broke the world record for the sale of a photograph and in 2008 he did it again with another photo from the Marlboro Cowboy series. It sold for $3.4 Million dollars. None of that money went to Sam Abell, the original photographer.

By removing the image from its original context, Prince says he added new layers of meaning to the work.

How is this art? Can Richard Prince still be considered an artist? Does he owe any profits to Phillip Morris or Sam Abell? What does it say that the original photograph could never make it onto a museum wall, but Richard Princes created such a stir in the art world?

Video of Sam Abell on the topic

INSTAGRAM & RICHARD PRINCE

Last year, Richard Prince printed and enlarged other peoples Instagram posts onto canvasses and sold the finished products for $90k a piece. Controversial or not, Richard Prince has been lauded in the greatest galleries and museums in the world.

Selena Mooney, who founded the burlesque group Suicide Girls in 2001, is one of the victims who have pushed back at Prince for using their photos. Instead of taking legal action, Suicide Girls offered their own life-size version of the prints for $90 a piece.

The last few years especially, our culture has increasingly considered aggregating, reposting and retweeting accepted forms of self-expression. If you take something from the Internet, are you confusing freely available with free to use? Social media is a culture of sharing, but theres a difference between personal sharing and commercial sharing

An Instagram spokesperson said that People in the Instagram community own their photos, period, a spokesperson for Instagram told The Daily Beast. On the platform, if someone feels that their copyright has been violated, they can report it to us and we will take appropriate action. Off the platform, content owners can enforce their legal rights.

SHEPARD FAIREY & The Associated PresS

This iconic image of Obama was not commissioned through the Obama campaign, but after the famous street artist Shepard Fairey made it, it was widely used to advertise Obama for President in 2008. It was revealed in January 2009 that the photograph on which Shepard Fairey allegedly based his design was based on a photograph by an Associated Press freelance photographer Mannie Garcia. The Associated Press demanded compensation for its use in Shepard Faireys work. Shepard Fairey has responded with the defense of Fair Use, claiming his work didnt reduce the value of the original photograph.

Shepard Fairey and The Associated Press came to a private settlement in 2011, part of which included a split in the profits for the work. What is the value of the work? Could Garicas work ever reached the fame that Shepard Faireys did?

Drake & James Turrell

For over half a century, the American artist James Turrell has worked directly with light and space to create artworks that engage viewers with the limits and wonder of human perception.

Drakes video for Hotline Bling features him dancing in luminous rooms with Turrell-style effects.

In response to the video Turrell issued this statement: While I am truly flattered to learn that Drake fucks with me, I nevertheless wish to make clear that neither I nor any of my woes was involved in any way in the making of the Hotline Bling video.

Saturday Night Live hopped on the meme, creating its own parody, featuring Donald Trump. Drake fans flocked to art galleries or created their own spaces to emulate Turell-esque backdrops for their own rendition of the video. Moncler saw spikes in the sale of the particular model and color of jacket that Drake wore in the video.

Could Turrell succeed on a copyright claim?

What could Turrells best response be in this meme and social media dominated world?

The reaction to the Hotline Bling video is much stronger than any millenial reaction to James Turrell. Is this a testament to Drakes fame or is it that James Turrell hasnt had the same mass reach to draw the same reaction?

Drake & james turrell

PATRICK CARIOU & RICHARD Prince

For an exhibition in the Gagosian Gallery, Richard Prince appropriated 41 images from a photography book by the French photographer Patrick Cariou, claiming fair use that he created new meaning out of the photographs. Patrick Cariou argued that it was copyright infringement.

A judge originally ruled in favor of Patrick Cariou claiming the changes made to the photographs werent significant enough to constitute a change in meaning -- fair use. The ruling was then overturned and the judge ruled in favor of Prince for the majority of works in dispute, claiming that Richard Princes work transformed the way that it was aesthetically different and thus acceputable under the argument of fair use.

The initial ruling in this case in favor of Cariou has created huge divisions in the artistic community.

How can a judge determine whether or not the appropriated artwork had enough meaning when the art could be interpreted differently by each person who views it?

DENNIS morris & mr. brainwash

In 1977, Dennis Morris photographed Sid Vicious (the lead singer of the Sex Pistols). The photo came to be known as Sid Viciouss signature pose, tilting his head and winking. The photograph was published in Morriss 1998 book Destroy: The Sex Pistols 1977 for which Dennis Morris has a copyright registration.

Mr. Brainwash is an appropriation artist and created 7 works using the Sid Vicious photo. Some of the pieces Mr. Brainwash made use splashes of color or adding sunglasses or other accessories. One is a giant wall mural in Los Angeles. Morris sued Mr. Brainwash for copyright infringement.

How is this different from Andy Warhols Marilyn Monroe pieces?

The court ruled that Mr. Brainwashs uses of the photograph were not sufficiently transformative because the works did not add anything new so as to give the original photograph sufficient new expression, meaning or message. Mr. Brainwash argued that his works were intended to comment on Sid Viciouss personal and on the nature of celebrity in general.

If subject matter is the only purpose for using anothers work, should the artist license to acquire derivative rights that compensate the underlying artist and show respect?

Was new meaning given to the Mr. Brainwash piece, or is it just aesthetically different? With new apps that allow users to make graphic treatments of photographs, how does this change your opinion?

girl talk

Girl Talk remixes popular songs to create a new experience of multiple artists between genres and eras. He could not make his music without the prior success of other musicians. Are his practices legal?

Does this embrace collaboration? Should he pay royalties to the original musicians whose work he uses? Sounds can bring back memories and samples remind the listener of a particular era. Sampling can function like an audio time machine. To determine between fair use and actual copyright infringement, judges look at a variety of factors such as the length of the clip, the purpose and whether its transformative. A transformative use means that youve changed the context or altered the original sufficiently to transform it into something new. This concept has played an important role in all fair use cases over the last 20 years.

Do we romanticize the idea of something having to be entirely original? Hip Hop samples all the time, but it was only in 2014 that the Grammys allowed a song that included samples to be considered for the Song of the Year category.

Beyonce vs. Chris Black & Abteen Bagheri

Last months launch of Beyonces Formation video was a huge hit with over 30 million views already. Abteen Bagheri and Chris Black are a director/producer team behind a 2013 New Orleans documentary that are claiming that the director of the Formation music video used B-Roll footage from their film without permission. Beyonces team says the requested to license the footage but the talks broke down wihtout getting finalized. The sent an NDA, but it was never signed. The director has been sued in the past for similarly borrowing other artists work. Beyonce issued a statement saying that the footage was licensed properly and used with permission and that the owners were given proper compensation. The footage was provided by the filmmakers production company. And the filmmakers were listed in the credits as additional photography.

The documentary directors were upset about the lack of credit. In music videos, credits other than the musician, director and record label are rarely shown. Is it realistic to expect that these directors who provided mere seconds of b-roll footage should have received further acknowledgement at the end?

How is this different than licensing stock footage from Getty?How do the terms of service on Vimeo affect this?

Honda Cog

This is an older example, so I apologize for the film quality. In the early 2000s, Honda put out this video Cog, one of the first branded internet films that went viral. In fact, at the time, there was no YouTube to share it, and I even remember downloading a quicktime to my desktop and sharing it with colleagues as an email attachment. It was just about as successful as a piece of advertising could get at that time without a formal media buy.

Two Swiss artists complained that it bears similarities to their 1987 short film.

Despite marked similarities, the court ruled against the filmmaker, who ended up liable for court costs.

The advertising agency claimed the Swiss film was only one of the inspirations for the ad and argued Advertising references culture and always has done. Part of our job is to be aware of what is going on in society. There is a difference between copying and being inspired by.

In a world where advertising needs to reflect pop culture, what is the right thing for an advertiser to do when so closely mimicking an artists work?

Damien Hirst vs. British Airways

Damian Hirst is famous for his multi-colored polka dots. When British Airways launched their low budget airline Go in the late 90s, the logo for Go was a colorful circle and the advertising featured multi-colored polka dots.

British Airways said The fact is that Gos logo is a circle, and the advert is just an extension of that. Circles have been used for transport for years - wheels are round - and the inspiration for the Go logo came from that and not from Damian Hirst. Hirsts spokesman said that the had discussed spots with BA before the deal fell through. Can anyone own polka dots?

S. VICTOR WHITMILL VS. WARNER BROS.

In April 2011, tattoo artist S. Victor Whitmill sued Warner Brothers for a copyright infringement in the Film The Hangover II. In the film, Stu (Ed Helms) wakes up after a night of debauchery in a Bangkok hotel with a replica of Mike Tysons tribal face tattoo.

Victor Whitmill claims that he designed the tattoo specifically for Mike Tyson and therefore claimed it was a copyrighted work and that Warner Brothers and no right to put his work in the film or in any promotional materials.

The lawsuit almost affected the release of the film and there was a possibility that if the two parties couldnt come to an agreeement, the face tattoo would have to be digitally lifted for the home video release. Ultimately, the case was settled for an undisclosed amount and the Hangover II went on to gross $581.4 million worldwide.

How far can you extend the rights of a design like this? Would Mike Tyson own the rights to the design now that its on his face, or would it be considered a license from the artist? Would the movie have been as funny or culturally relevant without this exact same tattoo?

David Anasagasti vs. American Eagle

Ahol Sniffs Glue (David Anasgasti) is known for his signature eyeball design that is painted on everything from well-known murals to local record shops to nightclubs to hotels. The artist said that American Eagle took his copyrighted image worldwide without asking permission or offering compensation.

According to a lawsuit filed in federal court, American Eagle is guilty of blatant, unlawful and pervasive infringement for using Ahols eyeballs motif in advertising on its website, social media pages, targeted marketing, a billboard in downtown New York City, and in store displays from Tokyo to Panama.

The complaint claims that American Eagle knew it needed to seek permission use use such creative works captured in the resulting ad campaign but never reached out for approval even though they had his contact information. Ahol's complaint, "Mr. Anasagasti has never permitted his work to be used to advertise or sell commercial products... Given that he hails from the counter-culture world of underground street artists, Mr. Anasagastis reputation as an artist has been founded, in part, on a public perception that Mr. Anasagasti doesnt 'sell out' to large corporate interests. Yet ironically, in todays fashion marketplace, affiliation with artists bearing such 'street credibility' is highly sought-after by retail brands for the cultural cachet and access to the profitable youth demographic that it offers.

If you take a photograph on a street that featu

ROGERS v. Koons

Photographer Art Rogers shot a photograph of a couple on a bench holding a row of puppies and sold it for use on greeting cards. Internationally renowned artist Jeff Koons in an exhibit in the banality of everyday items came across Art Rogers photograph and used it to create a set of statues based on the image. Koons sold several of these sculptures making a significant profit.

Is this fair use? Parody?

The court found similarities too close and that a typical person would be able to recognize the copy. Koons defense was rejected under the argument that he could have used a more generic source to make the statement without having to copy Art Rogers photograph. Koons was forced to settle.

This is one of those famous cases in the art world. Can you build upon anothers work to create your own original piece? And if you do so, does that constitute derivative work? Is photography just a documentation of the world, or is it a creative and artistic product?

Amy Schumer

billy on the street vs burger king

Vanilla Ice vs. David Bowie/Freddie Mercury

Ice Ice Baby was a hit in 1991. Vanilla Ice sampled but did not credit the song Under Pressure by David Bowie and Queen. Though at first he denied it, Vanilla Ice later retracted the statement saying it was a joke. Facing a lawsuit, Vanilla Ice fessed up to sampling the work. Sampling wasnt really as popular in 1991 as it is today. The case was settled privately out of court.

If this happened in 2016, would the world react in the same way?

ROBIN THICKE & PHARRELL WILLIAMS VS. MARVIN GAYE

WILLIAM ROGER DEAN VS. JAMES CAMERON, TWENTIETH CENTURY FOX, ET AL

The artist Cecily Brown says that she has inspired an imitator.Are these copies? Are they purposefully influenced by? Can anyone own a style of painting?

Cecily Browns work is held in the collections of the Guggenheim and the Tate Modern, while Sherie Franssen is relatively unknown. Legally speaking, an artist cannot infringe on style. Just think of Impressionists.

Are Franssenss paintings affecting market share of Cecily Brown? And if so, would that just be a reflection of buyers taste?

Do artists have an uninformed sense of copyright law?

Is it unusual for two artists at the opposite side of the country to be on similar wave-lengths? Could they both have the same influences from artists before them?

Barry Werbin, a partner at Herrick, Feinstein LLP who serves as chairman of the firms intellectual property practice: Today, could [the Impressionists] all sue each other for copyright infringement, under the law? No, they are not plagiarizing each other. If there is a woman with a parasol here, but there are different depictions, the shapes are different, the perspective is different, that isnt copying. Am I using the same concepts and style? Yes. Is that infringing? No.

Huey Lewis and the News' "I Want a New Drug" vs. Ray Parker, Jr.'s 'Ghostbusters' Theme

The song I Want A New Drug by Huey Lews and the News bears a striking resemblance to the Ghostbusters theme song, for which it scored an Oscar nomination for Best Original Song in a Movie.

The parties settled out of court, but Huey Lewis discussed the caste on VH1s Behind the Music in 2001 infringing on a confidentiality agreement and resulting in another lawsuit. The producers of Ghostbusters had originally come to Huey Lewis and asked him to remake his song for the Ghostbusters and he passed on the opportunity saying that it would devalue his original song.

Huey Lewis said In the end, I suppose they were right. I suppose it was for sale because basically, they bought it. Suing to protect an abstract musical idea is a lot harder to defend when the new version has been changed extensively. If were going to claim that a riff from I Want A New Drug is a legal entity that can be abstracted, copyrighted and owned, why is the artist allowed to hold separate copyrights on different versions of the riff? Its like the old classical music joke that goes Its not that Haydn wrote more symphonies than Beethoven: Beethoven wrote nine symphonies, Haydn wrote one symphony 104 times.

The Da Vinci Code vs The Holy Blood and The Holy Grail

Improv Everywhere Flash Mob

Charlie Todd, the founder of Improv Everywhere, is popularly credited with creating the flash mob movement. This is a category of performance art that did not exist before and now has hundreds of stunts with hundreds of millions of combined views.

A flash mob is a large public gathering at which people perform an unusual or seemingly random act, and then disperse.

Imrov Everywhere has been copied many times, but heres one example.

The Chicago Bears released this video a year later.

Is this copying or is it inspiration?

Can someone have rights to an entire category?

Urban Outfitters vs. Independent Designers

Celia Rowson Hall

theron humphrey vs. so delicious

theron humphrey vs. so delicious

Cecily Brown vs. Sheri Franssen

Marcel Duchamp - "The Fountain"

Puff Daddy vs. Sting

Q&A