First, go scroll through Exhibit A to the Complaint for this copyright lawsuit (starts at page 13 of Complaint, below). Besides displaying beautiful artwork, it also provides a nice visual set-up for what should be a really interesting case involving digital manipulation and transformative use.
The Plaintiff is a prominent visual artist primarily known for her original abstract art and mixed media paintings. She has sold over 1,500 original paintings worldwide.
The Defendant is an artist who creates his works by digitally manipulating existing images through computer programs such as Photoshop. Defendant sells his digitally manipulated artwork via the same online retailers as Plaintiff.
Plaintiff made contact with Defendant, who had been provided as a reference by an online distributor, for the first time in 2014. Defendant responded with a pleasant “I just took a look at your art – wow! You have a new fan.” Apparently he wasn’t kidding.
In 2017, Plaintiff discovered that 22 works for sale by Defendant were digitally manipulated derivatives of her own artwork. Photoshop had been used by Defendant to rotate, invert, stretch, filter, all the tricks…anyway, you can view the final results in Exhibit A, where Plaintiff sets forth a side-by-side comparison for all 22 works.
In a phone call between Plaintiff and Defendant, Defendant stated that his intent was not to “copy anyone’s work in a fashion where it would be confused and cost another person a sale.”
Based on a review of Exhibit A, this blog post is going to assume that Defendant did in fact digitally manipulate Plaintiff’s images. The question then becomes whether the digital manipulation and subsequent commercial use was an infringing use or a fair use.
Defendant’s entire art style seems to heavily rely upon digital manipulation of other people’s artwork, so I would expect him to present a strong, well-reasoned argument for “transformative use.” Transformative uses take the original copyrighted work and transform its appearance or nature to such a high degree that the use no longer qualifies as infringing.
Arguing a “transformative use” defense will involve answering the following two questions in the context of Defendant’s style of digital manipulation:
- Has the material taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
It will be interesting to see how both parties answer these questions as the lawsuit proceeds. Stay tuned for updates.
Keck v. Lawrence et al.
Court Case Number: 2:18-cv-00250-RLM-DLP
File Date: Friday, June 1, 2018
Plaintiff: Michel Keck
Plaintiff Counsel: Matthew K. Higbee, Ryan E. Carreon of Higbee & Associates
Defendant: John Mark Lawrence dba Mark Lawrence Art Gallery; Does 1-25
Cause: Copyright Infringement
Court: Southern District of Indiana
Judge: Robert L. Miller
Referred To: Doris L. Pryor