Copyright Infringement or Tribute?

It is typical for artists to be inspired by the creation of others. Even some of the greatest painters in history have reportedly used the work of others as inspiration. There is, however, a difference between inspiration and blatant copying. An artist might be flattered if another artist is inspired by his work and makes a creation as a tribute to the original. On the other hand, he would undoubtedly be annoyed if someone copied his work and then claim it as a new original creation.

During a visit to the SCOPE Miami art fair in December, Jason Levesque did a double take in front of two paintings by Josafat Miranda. The paintings were not just similar to his photographs – it was almost an exact rendition of his compositions. Levesque was obviously upset by these unauthorized copies. After all, he was the one who posed the models and made the creative decisions on how the image would look. Miranda was trying to capitalize on Levesque’s creative labor. The paintings were being sold for around $4,000 and no credit was attributed to Jason Lesvesque. Instead of confronting Miranda, Levesque exposed the artist on Facebook by posting the original photographs next to the paintings. After the discovery, the gallery promptly removed Miranda’s work. (An article with pictures of the comparisons is available here.)

It is unknown whether Levesque intends to bring a copyright infringement suit against Miranda, but if he decides to, he would have a very good claim. The facts are similar to Rogers v. Koons. Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992). In Rogers, a sculptor gave his artisans a copy of a photograph and told them to create a three-dimensional sculpture based on the image. This was done without the knowledge or consent of the photograph owners.

One of the elements of copyright infringement is “substantial similarity”. There is substantial similarity if reasonable jurors can look at both works and would not differ on whether the copied work was directly appropriated from a copyrighted work. Miranda recreated Levesque’s photos without making any substantial changes. A jury would definitely be able to tell that Miranda’s paintings were direct copies. Just like how the sculptor did not make a significant expressive difference by transferring a two-dimensional photograph into a three-dimensional sculpture, Miranda did not change the expression of the photographs by putting them into painting form.

In Rogers, the sculptor tried to argue that the sculpture fell under the Fair Use Doctrine codified in §107 of the 1976 Copyright Act. Under the doctrine, there is no copyright infringement if the copied work was used for purposes such as criticism, commentary, or parody. The court rejected this argument. They found that the sculptor’s intent was commercial in nature; he was trying to make a profit. The purpose of the sculpture was to be sold as art, not to make a commentary or a parody of the photograph.

Josafat Miranda tried to make a similar argument. He claimed that his paintings were a “tribute” to Levesque. That argument is questionable because at no point did he give Levesque any credit. The paintings were not just “based” on the photographs, they were “copied” from them. Like the sculptor in Rogers, Miranda’s purpose was to make a profit out of someone else’s talent.

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