Is this copyright infringement?
A rant by Jason Rader
The image below was made totally from AutoShapes and WordArt in Microsoft Word 2003 in about 15 minutes. Read on to find out why this matters.
I made this image after reading about the ludicrous request from the Artist’s Rights Society to Google ordering them to take down their modified logo honoring the artist Joan Miro. Here is a link to the Google logo (I dare not put it here for fear of litigation). If you study Miro’s work (do a Google image search) you will see that the Google logo was a combination of elements from some of the artist’s most distinguishing works. I, myself, didn’t know of Miro’s work until I clicked the Google image (like most people do when it changes) and learned more about him. I was pleasantly surprised and added him to my mental list of cool people…and then was outraged when I read the story involving the ARS and the executors of Miro’s estate flaming Google for the compliment a few days later (here’s the link). I felt totally betrayed by this…Joan Miro is dead, I wish him well, it’s the jackasses who speak for his estate and the “money grubbin’ beyotches” at the ARS that are way-off my cool people list and approaching the top of my Total Losers list.
Theodore Feder, president of the ARS, remarked in the article (link above) “It’s a distortion of the original works and in that respect it violates the moral rights of the artist.” WTF? Are we talking “moral rights” (whatever that means) or copyrights? So, I went to the site ARSNY.com to find Feder’s email address so I could flame him myself. In my opinion the ARS business model is dedicated to taking a percentage of an artist’s royalties by using bludgeoning techniques to get them.
Remember, the ARS doesn’t get any money unless someone pays through them, thus the motivation…I’m sure Google’s logo wouldn’t have been considered a distortion had they paid a few hundred thousand to do it. This makes it in ARS’s best interest to diss Google’s good deed and try to get them to pay for use of something that the ARS claims as copyright infringement.
On the arsny.com site there is a “tutorial” on Copyright Law http://www.arsny.com/basics.html. It was here (scroll down about half way) that I found the graphic of Robert Indiana’s “The Figure Five”…and being the cynical, sarcastic, wise-ass that I am, I decided to invest way too much of my own time breaking down Indiana’s work into sections while asking the question…Where is the line drawn between honoring someone with an imitation and copyright infringement?
First of all, I think Robert Indiana is a cool dude; I like his work. Heck, his stuff is in the Smithsonian and on postage stamps! He did this piece in 1963 without the use of Microsoft Word or any computer based tools (I’m pretty sure). I have no beef with him…his work just happened to be on the ARSNY.com site at the time when my Fatal Attraction gene kicked in…sorry Bob, I mean no offense.
There are only 7 elements of “The Figure Five” (at least that’s all my untrained eye finds…I do work across the street from a respected art gallery though…I’ve even walked through there once):
1. There’s the dark grey rectangle that everything sits on top of.
2. There’s the circle, divided into 25 separate grayish sections, with a kind of thick white border.
3. There’s a black pentagon on top of the circle.
4. There are words in a stencil font apparently cut out of the pentagon so you can see the grayish sections through the letters. The words that are: USA, ERR, DIE, HUG (could be HOG, but looks more like HUG), and EAT.
5. There’s a big red standard pentagram (star) in the middle on top of the pentagon.
6. There are 3 yellow number 5’s on top of the star. One is almost as big as the star, the second is small enough to sit in the swoop of the first and the third is the smallest, fitting into the swoop of the second 5. (If you can’t imagine it…look it up, or look at mine)
7. Lastly, the title of the image is stenciled across the bottom of the rectangle under the “circle-pentagon-star-5” thing.
Now see my image, obviously not the same as the original, but a tribute:
If this is copyright infringement, what makes it so? I assume I’ll be contacted by the ARS before too long (I’m sending this to Theodore Feder as well).
Is it the gray rectangle? I hope not…I’ve seen gray poster board at the grocery store for sale before. There was no copyright logo on it but I didn’t scrutinize it too much.
The circle it’s self isn’t that unique. In my graphic I used the gradient fill feature on the Format AutoShapes menu. Indiana’s is cut into 25 equal pieces each using 5 shades of gray. It is impressive to cut something into 25 equal pieces. If you do the pizza cutter technique you get 24…maybe that’s where the art comes in. It certainly isn’t the fact it’s a circle or that it’s gray. Is mine different enough because I didn’t spend time doing the separate gray slices?
Is it the pentagon? The building that comes to mind was dedicated on January 15th, 1943; 20 years before this work was completed. I wonder if Bob cleared it with the US Government? All I know is that when I use AutoShapes in MS Word and I insert a pentagon, it doesn’t say anything about “used with permission”.
Is it the words he used? I just used the coolest 3 letter words I could think of as I typed. Is it the words (and their meaning) that make it art? My mom’s a poet, and she uses words out of the dictionary…she doesn’t make up her own. Maybe Tolkien owns exclusive rights to the words he made up…if so, the guy who came up with “beyotch” should be rich. (I owe him a few $$).
Surely, it can’t be the star…Russia probably owns some rights to that. This whole thing looks Russian actually…should we do some research? Back in ’63 it was probably encouraged to steal intellectual property from the communist nations. Just joking…
The “5” I used is in “Modern No. 20” font, it looks close, but not exact. Did Indiana make-up the font he used? If not, is it used with permission? Should I pay a royalty to Microsoft or the font maker? Isn’t 555 used in most movies as the prefix to everyone’s phone number? Does that cost money? Yellow 5s? The Mach-5? 5 can’t be copywritten…can it?
Then there’s the label, “The Figure 5”. The ARS calls the work “The Figure Five” (they spell out the word 5)…is this disparity enough to argue? I named mine “Exhibit 5” just to make it different enough to be a representation of a label but obviously not the same as Indiana’s work…I mean figure and exhibit are totally different words! My art is different…”exhibit” is way harder to spell.
My conclusion; taking things that are so commonplace and arranging them in a word processing program so that they look like another thing is NOT copyright infringement. It’s flattery. What if I bought an artist’s work, canvas and all? Could I take pictures of it and put them on T-Shirts? I say yeah. Can’t I take pictures in a museum? Aren’t those pictures mine? Copyright law is up to interpretation; that involves Lawyers and Judges (who should know better). If we keep letting organizations with unlimited funds petition judges to agree with them without yelling foul…ultimately we all lose.