Derivative Works & Roy Liechtenstein’s Fifth Kiss (of Death)
The first time I saw a multi-million-dollar “Masterpiece” by Roy Lichtenstein, a supreme painter from the Pop Art movement, I had the same thought as almost everyone:
Isn’t this just a comic?
Now, I like comics, and think they’re fun all blown up and framed, mock-seriously, on the office wall. But they’re a dime-a-dozen, not millions a pop. Simple things sometimes go for millions in Pop Art, but is this really just a typical 50’s era comic, going for millions of dollars?
As quickly as that silly thought popped up in my mind, it popped away. Of course not! The entire art world would not be duped into shelling out hundreds of lifetime salaries each for simple enlarged comic strips. The art world couldn’t be that daft. No. It must be some other intellectual statement, based on the underlying concept of comic books. Something deeper that I didn’t understand. Something so subtle, I needed an expert to analyze and explain it to me.
But the only available expert was a big security guard called “Mack,” eyeing me suspiciously as I got a bit too close to the priceless painting. (I don’t know if his actual name was Mack, but he was built like a Mack truck.) Deciding that Mack looked like the type of expert that doesn’t suffer fools, I moved on to Damien Hirst’s floating dead shark exhibit in the next room, and thought instead about the impossibility of death in the shark’s mind while it was still alive. It made much more sense than the Liechtenstein comic.
Years later, it turns that we were all right. This $165,000,000 “Masterpiece” is just a comic. In fact, it’s an exact copy of somebody else’s comic, if you can believe it.
And so is this Liechtenstein:
And this one:
Each of the above outright copies sold for a canvas-stretching $50,000,000 plus, adjusted for inflation.
Roy Liechtenstein’s comic painting method was simply to pick out other artists’ existing, published comics, and paint deliberate, painstaking copies, down to the “little dots” so often seen in a Liechtenstein. Those dots are not a nod to post-impressionistic Pointillism, from the late 19th Century. Even those details are just a dot-by-dot copy of the cheap comic book color gradation techniques of the 1960’s.
How could that be, you ask? He must have done something more to the source material, or what is everyone paying for?!
The answer is an (almost) absolute “no.” He made no substantial changes. Now, naturally, a paintbrush, rather than printing, will create some unique texture, and Lichtenstein did make some slight changes, sometimes (e.g., change a red scarf to yellow). But, by and large, these are exact copies.
Wait, you say, isn’t copying other’s work illegal? Doesn’t it violate the comic book artist’s copyright?
That is the very question posed in the legal arena known as “Derivative Works,” one of the most challenging areas of copyright law. The copyright laws of the United States recognize creative rights in derivative works, allowing artists to platform off of others’ work, and move it forward, with new contributions. Yet, at the same time, Derivative Works can be, and often are, violative of the source material’s copyright.
But in the late Roy Lichtenstein’s case (or, more precisely, his estate’s case), the protection for derivative works can be quite weak, particularly where, as in Lichtenstein’s comic series, the copying is near total. In point of fact, a 2010 law suit, the rock band Elsinore prevailed in defending its use of album cover art nearly identical to Lichtenstein’s Kiss V (both shown below):
Although the likeness is striking, Elsinore quite cleverly avoided all of the non-derivative aspects of the derivative work by Lichtenstein in Kiss V. Instead, Elsinore went to Lichtenstein’s source material, the earlier comic that he had copied. According to the Court, without using anything original, that Lichtenstein himself created, Lichtenstein’s work has not been infringed at all!
What happens then? Can another band derive Elsinore’s cover? Perhaps, if they are careful about the details. Where are the original comic artist in all of this? Sleeping, or will they sue both Elsinore and Lichtenstein? In the end, Elsinore’s lesson may be the same as Liechtenstein’s. Derivative works get instant recognition, taking from the hard work and popularity that came before it. But, then, anyone else can do the same, and take your marketing energy and good will as well. This is the vicious cycle of derivative pop media.
Our two cents at Beckman Law is: Originality is the Best Policy. The winds of your hard effort and promotional dollars are best spent in your own sails, on your creative work, not fanning your competitors. Then, we have something of our own. Something we can protect, enforce and infinitely profit from.
We’d be thrilled to help you protect your truly creative work – just drop us line, below!
