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Avvocato Arlo Canella
This article is intended to simplify the legal issue concerning collage. I will explain the most correct method, as I see it, to deal with this thorny legal issue.
Summary:
Collage is the technique of overlaying cut-outs of photographs, documents, newspapers and magazines. The term also refers to the resulting work that is the fruit of the application of this technique. If you use images of third parties to create collages, however, you have to be careful because you could be accused of infringing the rights of others. Conversely, the author of photographs or other works often does not want others to use them without asking for permission.
A young collage artist, Rhed Fawell (on IG @rhedfawell), suggestively stated in an interview with Repubblica that “historically the art of collage has always been particularly accessible, especially because of the ease and speed of obtaining the materials. We live in a disposable media society whose key is recycling. The beauty of this art is the promise for everyone of being able to create something from nothing using just a can of glue and some magazines’ (The statement is taken from the article “Tutti pazzi per l’arte del collage digitale: i migliori profili da seguire su Instagram” of 25 May 2019 by H. Battaglia on D.REPUBBLICA.IT).
To sum up, the topic of “cannibal” art is as topical as ever (this is so-called ‘Appropriation Art’). As a matter of fact, we keep talking about it without being able to identify a general rule. In this article, I outline my technical approach to solving the legal challenge.
If to create the collage we used “pieces” of which we ourselves are the authors, there would be no problem. However, every creation is composed of elements, just as every living organism is composed of cells. Even if every ‘new thing’ is always the result of a novel mixture of ‘cells of information’, not everything can be freely mixed by the authors. We can say that intellectual property, when it exists, constitutes a kind of constraint on information cells. In order to legitimately create a new organism, we should indeed ensure that the pieces we are going to use – i.e. the cells or clippings – are actually available, i.e. not restricted.
As I see it, the first way of approaching the ‘collage problem’, the most straightforward and traditional one, is to thoroughly check whether such restrictions actually exist.
As is well known, photographs, for example, are governed by copyright law. The discipline knows three different types of photographs:
This being the case, perhaps it is precisely for this reason that many artists (even the best known and most prudent ones) prefer to use photographs with ‘expired’ protection for their artistic collages. It seems to me, for example, that contemporary artists such as Eduardo Recife, Joe Webb or Laurindo Feliciano might use ‘vintage’ images not only for stylistic reasons, but also for these safety reasons (see the article L’arte del collage e tre artisti di arte contemporanea da non perdere” by A. Fornaciari).
Be careful: what is represented in the photographs could involve other intellectual property rights such as trademarks, other artistic works, the image of more or less well-known persons (see in particular paragraph 5).
All in all, even if you want to consider collage an art form, you cannot neglect to take into account the rights of third parties that depend on the pieces used for collage.
As a matter of fact, I would say that it is actually the type and nature of the pieces used by the artist that determine the level of ‘legal risk’ of the collage. For this very reason, there is often a tendency to digitally modify the pieces so that they are not actually recognizable… in the next section we will see whether this strategy can work or not.
The subject of plagiarism/counterfeiting, even in photography, always arouses a lot of curiosity. Perhaps that is why, during a business meeting at a well-known Milan-based photo agency, I was asked: “Lawyer, is it true that if there are 3 differences, one can no longer speak of plagiarism?”.
It made me smile because, even if I had nodded, I don’t think my interlocutor would have got a clear enough answer. Anyway, the question is badly posed, from a technical-legal point of view. The problem lies more in the nature of the differences than in their number.
In a nutshell, when it is possible to recognise the work of others in our own creation… it makes no sense at all to speak of differences. Since we are using someone else’s work, we should have been authorised to do so in advance, otherwise we would already be committing a legal abuse. Article 18 of Italian Law 633/1941 states that the author certainly has “the exclusive right to elaborate [and this] includes all forms of modification, elaboration and transformation of the work…”.
In other words, all that matters is not to get caught. Modifications will only be sufficient as long as they render the original work completely unrecognisable. Only then can we actually sleep soundly.
But there must be an escape route that allows authors not to have to go through the legal sieve, piece by piece, of everything that is being used to make a collage.
After all, the pieces of a collage are just cut-outs and, it would make little sense to speak of transformation of the pieces. However, it makes complete sense to speak of transformation of the work as a whole precisely because, at times, the ” leap forward ” is quite substantial… And this allows the collage to be considered entirely new, autonomous and original. And this regardless of the intellectual property constraints on the pieces that constitute it.
Lavoisier’s scientific Law of Conservation of Mass states that ‘Nothing is created, nothing is destroyed, everything is transformed’. Let us focus precisely on this concept of transformation.
“The White Album” is the work that won the Golden Lion at the Biennale di Venezia in 2019. It is a ‘video-collage’ by American artist Arthur Jafa consisting of amateur clips downloaded from the Web, music videos and more. There is no doubt that each of these video pieces possesses ‘constraints’ given by the intellectual property rights of their respective authors. However, the juxtaposition and reworking of Java have generated an original work precisely because it has a strong and autonomous meaning (compared to that of the incorporated clips). We can safely say that Jafa has transformed the clips, merging them into a work that is completely autonomous with respect to the used video clips.
In this case, it would have made little sense to analyse the used clips one by one, as these would certainly have had valid and significant rights. Those rights, however, would have been outweighed by the artist’s right to freedom of expression (awarded the Golden Lion).
This is then the million-dollar question: is there a clear boundary line between what is lawful and what is not in the field of Appropriation Art and, consequently, of Collage?
When discussing this subject, reference is usually made to the American experience and the doctrine of so-called fair use, i.e. the fair, equal and correct use of the works of others. American judges have introduced analysis parameters (the so-called four factors) to understand whether exploitation can be considered lawful or not. They are:
the object and nature of the exploitation (obviously, commercial exploitation is also of particular importance):
Transformation is always undoubtedly a key concept: (1) for the exploitation of the original work to be considered legitimate, the artist must have created something sufficiently new and autonomous; (2) the more the second work will have belonged to a different artistic sphere from the first, the more easily the ‘borrowing’ will be considered free; (3) the more the use of the original work will have been quantitatively limited, the more tolerable it will be; (4) lastly, it will still be necessary to respect the market effects on the original work.
The truth is that the balance struck by the law, and by the Courts, is that between the aforementioned right to freedom of expression of the artist and the right to exclusivity guaranteed to the authors of the works exploited. In this regard, the “transformative coefficient” becomes very relevant and the “four factors” identified in the American experience are simply a relative measuring criteria.
At this point, it seems appropriate to mention some of the cases that have become famous in the world of Appropriation Art.
The case of Jeff Koons’ String of Puppies, in which the artist had taken a photograph of Arthur Rogers, has now become famous. In this case, the photograph had actually been used as a prototype for the creation of the sculpture. The American judges had ended up ruling against Koons (Rogers v. Koons, 960 F.2d 301 – 2nd Cir. 1992).
In contrast, the conclusion in Blanch v. Koons (2006) was the opposite. Sufficient transformation for Koons’ work “Niagara”; this time, the artist had limited himself to using the photograph taken by Andrea Blanch depicting two crossed feet wearing Gucci sandals… but in a much larger context (also in terms of size). Koons won (Blanch v. Koons, docket no. 05-6433-CV of 26 October 2006).
When Patrick Cariou saw his own collection of shots entitled Yes Rasta (2000) being used, he decided to sue Richard Prince. The latter, after all, had not bothered at all to request any authorisation for his own series of works called Canal Zone ( see an example above: on the left Cariou’s shot, on the right Prince’s ‘transformation’). After two instances, the courts of appeal acquitted Richard Prince for sufficient transformation against an inherent message discernible by any reasonable observer [Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)].
By contrast, Prince went a little too far when he decided to use a photograph of Donald Graham (above left). In this case, he had merely combined the photograph with some likes and comments that appeared on Instragram. Evidently too little for the Judges to consider transformation [Graham v. Prince – 265 F. Supp. 3d 366 (S.D.N.Y. 2017)].
Although in a very different legal and cultural context, i.e. the European context, the arguments made by the Judges are not very different. To be fair, in Europe the regime of copyright exceptions involves the so-called three-step test, but I will not elaborate on it today [see C. Geiger, The Three-Step-Test, a Threat to a Balanced Copyright Law?, in IIC, 2006, p. 683-699 (2006)].
The decision (a precautionary order) of the Court of Milan has become a milestone. Following precisely the American decisions cited above, the Court ruled on the possible interference between the works of John Baldessarri (for Fondazione Prada) and the works of Swiss artist Alberto Giacometti, his famous “Grand Femmes”.
The Judges of Milan stated that “the intervention of the American artist [Editor’s note – Baldessarri]appears consistent, while the use of Giacometti’s image of the woman also appears dramatically transformed, from the thinness and tragic expression of the post-war period to the ecstatic expression of the thin woman, not because of the hardships of the war but because of the severe demands of fashion. The transformation thus exists, both in a material and conceptual sense, and the result is a creative work with its own artistic value’ (Ord. Trib. di Milano of 13 July 2011).
All in all, the measurement of the transformation coefficient always seems to be the focus of the jurist’s analysis.
Lastly, I would also mention the case of Sanguinetti v. Kambalu (see the 7.11.2015 Order of the Court of Venice). Kambalu criticised the situationist Sanguinetti with his “Sanguinetti Breakout Zone” at the 2015 Biennale. The Judges specified that:: “The entire installation has its own creative coherence and message of sarcastic criticism clearly referable as coming from Kambalu and can certainly not be reduced to a mere counterfeit and plagiarism of Sanguinetti’s works or parts of them, having to remember that the presence of the mentioned creativity allows to consider integrated also the exemption of parody, according to what argued by the European Court of Justice ruling no. 201 of 3.9.2014 (Case C-201/2013), the parody itself being pacifically recognised as a right constitutionally guaranteed in the national legal system by Articles 21 and 33 of the Italian Constitution”.
In conclusion, in reading the transformative coefficient, rather than an economic interpretation following in the footsteps of the American four factors, our Judges seem to focus more on the artistic message, on its importance and on the presence (or not) of that critical, parodistic or satirical spirit on which they tend to hinge their decisions because it is a spirit that has a normative (constitutional) basis.
Be careful, this argument about transformation does not apply when it comes to the exploitation of others’ image rights. When someone’s portrait is used in a work, different rules (and legal standards) must be respected.
The operative part of Section 96 of the Copyright Protection Act clearly states that: “a portrait of a person may not be exhibited, reproduced or put on the market without that person’s consent, subject to the provisions of the following article”. And Art. 97 specifies that “the consent of the person portrayed is not required when the reproduction of the image is justified by the notoriety or public office covered, by the necessity of justice or the police, by scientific, didactic or cultural purposes, or when the reproduction is connected with facts, events, ceremonies of public interest or held in public.
The portrait may not be exhibited or placed on the market, when the exhibition or placing on the market would be detrimental to the honour, reputation or even decorum of the person portrayed’.
It seems abundantly clear that the underlying logic of the rule differs from that analysed in the previous paragraphs. Whoever creates a work, whether a photographer, a painter or a collage artist, must obtain the consent of the person portrayed before publishing the work.
The image or portrait of a person is also protected by Article 10 of the Italian Civil Code. As a matter of fact, the rule provides that: ” if the image of a person […] apart from the cases in which the exhibition or publication is allowed by law, or with prejudice to the decorum or reputation of the person himself or of the said relatives, the judicial authority, upon request of the person concerned, may order the cessation of the abuse, provided that compensation for damages is paid”.
Private individuals have every right to be left alone… always. Regardless of the freedom of artistic expression. If, on the other hand, the character is a public figure, the hypothesis of the injury to his reputation may then come into play, and his consent to the use of the image may also be disregarded.
Let us finally consider what are the risks for the author of a collage or, more generally, the author of an appropriative work of art.
To put it in a nutshell, anyone who acts without seeking the appropriate authorisations risks being liable to pay damages for infringement of the rights of the authors of the collage pieces. As I said at the beginning of this article, it is exactly the type and nature of the pieces used by the artist that determine the level of ‘legal risk’ of the collage.
The author of the appropriative artwork could be ordered to destroy the work for violation of the moral right of the authors of the original works. He could also be required to pay compensation for both pecuniary and non-pecuniary damage.
Needless to say, in assessing the actual risk, the artistic character of the person performing the ‘transformation’ is also taken into account. In my opinion, it would be hypocritical to state the opposite.
If a renowned artist such as Koons appropriates works of other authors to create new works, there is likely to be an increase in value for both works.
As far as the image rights issue is concerned, there may be an injunction to pay damages for abusive exploitation, which should be coupled with the cessation of the abuse and thus, withdrawal.
Avvocato Arlo Canella
