When Kendall Met Monty
How can artists use copyright law to protect their works from unfair appropriation?
Kendall Jenner (Photo by Getty Images)
Ed. note: Please welcome Scott Alan Burroughs, one of our new columnists focusing on intellectual property law.
Instagram personalities Kendall and Kylie Jenner were recently on the receiving end of a piping-hot copyright infringement lawsuit. (Disclosure: the author represents the plaintiff in this suit.) The complaint contains allegations that the Jenners advertised and sold shirts bearing modified versions of photographs depicting the late, great hip-hop artist Tupac Shakur. Mike Miller (@mikemillerphoto), the creator of the photographs, averred that the works were exploited without his permission and noted that he did not particularly want his work associated with the Jenners.
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The Jenners fired back, not with a series of eye-roll emojis, but by invoking the “first-sale doctrine,” which stands for the proposition that one who purchases a product embodying a copyrighted work may resell that work without running afoul of the artist’s copyrights, particularly the artist’s exclusive right to exhibit and distribute the work. It turns out that the Jenners (and their business squad) had bought deadstock shirts bearing Miller’s photograph from a second-hand seller, cut out the original labels, added their own labels, slapped their initials on top of one of Miller’s photographs and an outline of an Instagram post on top of the other, and then marketed and sold the shirts at a cool $125 a pop. While this was perhaps an unorthodox business model, the sisters claimed it did not amount to a violation of the Copyright Act.
These protestations, though, lacked fizz because the right to sell merchandise bearing a copyrighted work is just one of the exclusive rights in the bundle of sticks comprising an artist’s copyright. Another of those rights is the exclusive ability to create derivative works, which means that if somebody wants to create a new or altered version of an original work of art, they have to reach out to the artist for authorization before doing so. This protects the artist on a number of fronts, ranging from a third party profiting from a modified version of the work to the combination of the artist’s work with elements that the artist might find offensive or unsavory. For example, if an artist is into animal rights, she can most likely stop a hunting lodge from slapping her artwork over a photo of the lodge and then using it on its website. This exclusive right, however, is limited compared to what is available to artists in other countries, a slight that is based on an outmoded idea of the role of the American artist.
The US of A’s copyright law was put to paper back in a day when we were not yet a nation of innovators and creatives, but were instead a bunch of wretched copyists and opportunists. In that bygone era, we kept busy copying books and artwork from the less Philistinian nations of Europe. And our protectionist legal scheme reflected that. First, we excluded fashion garment designs (which our underpaid garmentos and cutters-and-sewers were busy copying from the more stylish French and Italians), and then we refused to acknowledge droit moral, or moral rights, in an artist’s creation. Such rights are high-minded and our community of artists was comparatively small in relation to those in older countries, so we gave no bothers at the time.
While the Copyright Act still does not recognize moral rights, courts have stepped in to protect artists against the mutilation of their works by third parties who are motivated by something other than integrity, substance, or aesthetics. For example, when the ABC television network, which had obtained a license to broadcast a series of Monty Python specials, aired savagely edited versions of the originals that omitted the sweet, sweet obscenities and other material found unfit by the suits at ABC, Terry Gilliam and the rest of the Pythons felt a certain apoplectic sort of way and did what good comedians do when someone busts up their bits – they sued in federal court in New York. The court recognized the lack of a statutory moral right in the United States, but nevertheless found in favor of the Monty Python gang on the basis that ABC’s distortion of the Monty Python special violated their rights in the content and misattributed the modified material to the group. And the fact that ABC had the right to use the content had no bearing on their right to engage in what the Court vividly referred to as ABC’s “deformation” of the show
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On one hand, it is important to allow artists to take inspiration from and build upon the artwork of others. On the other (and probably stronger) hand, it is important to allow an artist to maintain the integrity of their work and to present it to the public in the way it was intended and protect it from being associated with a particular person or cause. In other words, if a photographer does not want a reality star’s face pasted on top of their original photograph, the photographer should be able to preclude that from happening.
America has now moved far beyond its status as a huddled mass of counterfeiters and knock-off artists. We are now at the forefront of creativity in many different disciplines. At the same time, our artists’ original creations are more accessible than ever before, and the means by which to copy and distort those creations are easy to find and use. Artists often have a very personal relationship to their work and are chagrined to learn that their work has been appropriated by someone with whom they do not want to be associated or altered in a way that impairs the work’s integrity. The Monty Python posse may just have carved out a path for these artists to fight back against those who care not about the droit moral.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
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