A streetcar is a streetcar, right?

December 25, 2010 6:46 AM

Kelley Turgeon's painting of Toronto's iconic streetcars won a contest for the Toronto Star Emerging Artist Cover Contest. Along with $2500 in prize money for the contest winner, the winning painting was also published Friday on the front page of the newspaper. Photographer Brian Labelle noticed because he had taken an eerily similar photograph in 2007.

Under his flickr username, Portraits of Toronto, Labelle posted a note to the Toronto flickr group, which resulted in Labelle contacting the Star with legal advice. The Star responded with an article highlighting the similarities, with responses from the photographer as well as the painter. In the Star follow-up, contest-winner Turgeon says, “I have a lot of respect for other artists and I would never intentionally rip off somebody else’s work."

Infringement, or fair use? Have a look.
Photo comparison by the Star and an animated comparison by flickr user, etherflyer.

posted by typewriter (52 comments total)

Wow she even got the 2 cars behind the left hand streetcar in there.
posted by Max Power at 6:50 AM on December 25, 2010

Damn. I've always liked TTC streetcars, even though I see them daily. For the last 24 hours, I've been admiring the painting and thinking I'd love a print.
posted by Artful Codger at 6:56 AM on December 25, 2010 [1 favorite]

I was about to say that I believed it could have been a fluke, but the car in the background made me think again. I'm not sure.
posted by synecdoche at 7:00 AM on December 25, 2010

C'mon, she spent hours painting that painting!
posted by sfts2 at 7:02 AM on December 25, 2010 [2 favorites]

oh jesus, its a whole different medium, and obv. fair use.
posted by PinkMoose at 7:16 AM on December 25, 2010 [2 favorites]

synecdoche... she admits she "drew inspiration" from the photo, and apologized...

I'm in the camp that she should have given the photographer credit....
posted by HuronBob at 7:26 AM on December 25, 2010

> she admits she "drew inspiration" from the photo

ftfh.
posted by scruss at 7:32 AM on December 25, 2010 [6 favorites]

Or else that's a pretty big coincidence.
posted by Daddy-O at 7:35 AM on December 25, 2010

Enh. Fair use, shitty painting.
posted by wreckingball at 7:40 AM on December 25, 2010 [2 favorites]

“That was one of the pictures that I looked at, but it was also one of dozens,” she says. “I’m sorry if I offended somebody — that wasn’t my intention. I spent hours painting this painting.”

Also THE ONE, of dozens she looked at, that she chose to copy.

“(It came) from being downtown. It’s my own interpretation of it,” she says. “If I sit in a vehicle, that’s the view. You have to be in the street to see it like that.”

Funny how her "interpretation" is the exact same composition of the photo. Does she mean it's her own interpretation of the photo?

Nice she apologized but maybe that prize should have gone to someone who didn't copy a photograph, who maybe painted their very own picture without obvious visual aids?
posted by Max Power at 7:41 AM on December 25, 2010 [3 favorites]

There's a difference between inspiration and tracing. I wouldn't consider it fair use unless the artist first requested permission from the photographer, as well as publicly acknowledging the original source of the image.
posted by Artful Codger at 7:44 AM on December 25, 2010 [1 favorite]

I wrote a paper for my art class recently on five cases where appropriation met the law (Richard Prince, Barbara Kruger, Jeff Koons and Shepard Fairey in case you were interested) and unfortunately I couldn't come up with a solid black or white answer at the end of the paper, because artists, original source photographers, the public and the courts all have different interpretations of "right", "wrong", "fair use" and "lawful". There are no easy answers in an age of recontextualization.

They say it's easier to ask forgiveness than permission, but I feel when photographers feelings are involved, the reverse is true :-) I won a ribbon at the Calgary Stampede Arts and Crafts Show last year for a picture I did of two galloping horses. I paid the photographer a fee for the use of her photo as reference material and we have become friends since. One of the Marlboro cowboy photographers whose work was re-photographed by Prince just wanted some recognition after all these years, and it doesn't seem like a huge thing to ask for.

Appropriation is a long and fine tradition in art, but it's different now that visual works often have huge monetary value. I don't know how US and Canadian fair use law differs, but Jeff Koons use of a photo for String of Puppies was ruled not to be fair use or parody, especially as he had instructed the Italian workshop to make the sculptures "just like the photo" he was inspired by. He was not creating a new work in the eyes of the court despite the difference in medium. Koons won a lawsuit over "Niagara" because the court agreed that using a photo of a foot in a larger collage constituted a new work.

However, is it necessary for artists to identify their ideas? Does the public need to know who created the original work? When art is a copy, what does it mean? Who truly has ownership of a work? These are the questions I grappled with as I researched the four artists.

Turgeon says, “I have a lot of respect for other artists and I would never intentionally rip off somebody else’s work."

Yet...it's so exact. Just as writers need to keep track of their sources so as not to be accused of plagiarism, artists need to keep track of their references too. Hmm...it will be interesting to watch and see how it pans out.
posted by Calzephyr at 7:52 AM on December 25, 2010 [8 favorites]

"Fair use" is not a legal concept in Canada. There is fair dealing, and I don't believe this would qualify.
posted by mendel at 8:23 AM on December 25, 2010 [5 favorites]

That animated comparison really seals it. That's pretty obnoxious.
posted by empyrean at 8:28 AM on December 25, 2010 [4 favorites]

If she's claiming it's original work, she's lying. It's basically a workshop piece in execution, and therefore inadmissible in almost every fine art juried show. The photo is much better an image, too.
posted by seanmpuckett at 8:44 AM on December 25, 2010 [5 favorites]

scruss.... the quote from the article "...Artist Kelley Turgeon admits she drew inspiration from Labelle’s photo..."

Please don't FTFY when it's a quote.. it's misleading...
posted by HuronBob at 8:51 AM on December 25, 2010

Um, obviously it's the same image. While the T-Star and Turgeon may be trying to downplay that fact, they're not going to succeed. The real question, though, would be whether this constitutes fair use. There is transformative work done here: the stylization through the use of color blocks, the removal of the window and the raindrops (which changes the perspective). But courts have distinguished between derivative works (copyright protected) and transformative works (fair use).

From wikipedia:

A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is.
The modern emphasis of transformativeness in fair use analysis stems from a 1990 article by Judge Pierre N. Leval in the Harvard Law Review, Toward a Fair Use Standard,[14] which the Court quoted and cited extensively in its Campbell opinion. In his article, Judge Leval explained the social importance of transformative use of another's work and what justifies such a taking:

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

Other aspects of fair use include whether the derivative work was for-profit (it was), whether it impinged on the market value of the original (it seems like it would be hard to make a case for this, unless the photographer intended to submit his photo to be considered as a magazine cover). I should point out that Labelle's work is under a creative commons non-commercial license, according to his flickr page. I believe that, since this is commercial work, that shouldn't make a difference.
posted by outlandishmarxist at 9:00 AM on December 25, 2010 [1 favorite]

So what she did a painting of a photograph. Still an original work. By this logic I would never be able to paint anything manmade. Paintings of buildings? Nope. Paintings of soup cans? Never!
posted by Ad hominem at 9:04 AM on December 25, 2010 [1 favorite]

Knock-offs from Santee Alley draw inspiration from top tier designers. Maybe we should give them a fashion show?
posted by Brocktoon at 9:08 AM on December 25, 2010

So what she did a painting of a photograph. Still an original work. By this logic I would never be able to paint anything manmade. Paintings of buildings? Nope. Paintings of soup cans? Never!

That's not really what's at issue here. The problem is twofold: 1) since she did not come up with the framing of the image, but simply the formal components of it, does she still deserve the accolades she got? (kind of petty, but it's a competition) 2) is there a copyright infringement claim to be made or is this transformative fair use (a painting of a building is most certainly transformative fair use; a painting of someone else's photo is less certain. The main issue is whether the transformation of the photo alters the meaning. Shepherd Fairey settled his case, so nothing was resolved there (I think that turning a standard press photo into an iconic representation is a clear case of altering the meaning - there is no symbolism in the AP photo, whereas the HOPE poster is rife with it - but others may disagree).
posted by outlandishmarxist at 9:13 AM on December 25, 2010

But courts from a country that is not the country being discussed here have distinguished between derivative works (copyright protected) and transformative works (fair use).
posted by stinkycheese at 9:21 AM on December 25, 2010 [2 favorites]

I wasn't exactly making a legal argument.
posted by Ad hominem at 9:24 AM on December 25, 2010

International copyright is pretty similar across the board (with some exceptions), because of GATT and so forth, but you're right, there are differences:

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore.

The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complimentary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.
posted by outlandishmarxist at 9:24 AM on December 25, 2010

Canadian fair-dealing doctrine is almost identical to U.S. fair use, in principal. In practice it seems a bit more lenient:

Furthermore, by taking "a liberal approach to the enumerated purposes of the dealing", the Court has made fair dealing more flexible, reducing the gap between this provision and US fair use[2]
It then establishes six principal criteria for evaluating fair dealing.
1)The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights." In particular, the Court gave a "a large and liberal interpretation" to the notion of research, stating that "lawyers carrying on the business of law for profit are conducting research".

2)The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after being used? What is the general practice in the industry?

3) The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing as there would not be copyright infringement at all. In some cases even quoting the entire work may be fair dealing. The amount of the work taken must be fair in light of the purpose of the dealing.
Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Was the dealing "reasonably necessary to achieve the ultimate purpose"?

4) The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."

5) Effect of the Dealing on the Work Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair."
posted by outlandishmarxist at 9:29 AM on December 25, 2010 [1 favorite]

Sure hope the photographer credited the guy who designed the streetcars. If I were them I would want a cut as well.
posted by Ad hominem at 9:31 AM on December 25, 2010 [1 favorite]

Reading further, it actually seems that Canadian courts give less weight to artistic concerns:

So although the court stated that where freedom of expression is at issue courts may need to place less weight on this hierarchy of factors and more on other factors, such as the political importance of the contents of the work,199 copyright won out in the end: “We do not consider it arguable that article 10 [of the Human Rights Act 1998] requires that the Telegraph Group should be able to profit from this use of Mr Ashdown’s copyright without paying compensation.”200 In other words, market impact (which is mindful of remunerating the author) may trump freedom-of expression claims and appears to be the most important consideration.

posted by outlandishmarxist at 9:34 AM on December 25, 2010

I wasn't exactly making a legal argument

Right. You were making a reducto ad absurdem claim that in reality is not relevant to the issue at hand.
posted by outlandishmarxist at 9:37 AM on December 25, 2010 [2 favorites]

In practice it seems a bit more lenient

Just ignore that sentence.
posted by outlandishmarxist at 9:39 AM on December 25, 2010

The rules of the competition require submissions to be original work, so fair use or no, the win should be invalidated and the second place winner bumped up and given the prize money for her goofy-looking clay shopping scene.

What I find most interesting from this situation, as revealed in the discussion on the Flickr page, is that the newspaper was refusing to publish comments about the controversy without investigating the situation first. I am troubled by online publications which seek to draw eyeballs by providing space for community dialog through comment sections, then insist on micromanaging and controlling what polite people can say there. It's always good when something happens that reveals these internal censorship policies.
posted by Scram at 9:40 AM on December 25, 2010 [2 favorites]

Legal, smeagle.
Art is about vision. This painter used someone elses vision and passed it off as their own. I don't care what the courts say, I have no respect for this painter.
posted by cccorlew at 10:03 AM on December 25, 2010 [4 favorites]

Right. You were making a reducto ad absurdem claim that in reality is not relevant to the issue at hand

Right, because international law decides who wins 2500$ prize. Let me know when they convene a tribunal in the Hague counselor.
posted by Ad hominem at 10:10 AM on December 25, 2010 [2 favorites]

I've said this before and I'll say it again, as long as someone puts in a lot of time and did the work, more often than not, they'll think it's great and unique to them. In my experience, this concept has been over-employed by every graphic artist I've ever had to work with, regardless of how mundane and misinformed their deliverables turn out to be.
posted by jsavimbi at 10:19 AM on December 25, 2010

If she's claiming it's original work, she's lying.

Everything is derivative. If anyone claims any art is wholly original, they're deluding themselves or lying and probably both. This is a new thing based on a previous thing, and anyone who claims that they can copyright the composition of a picture is both wrong and kind of a dork.

It may not be a great thing, though admit that I like both of them for different reasons. But if the criteria for "is this art" is "entirely original, and not derivative at all", then Percy Sledge's "When A Man Loves A Woman", based on the chord progression from Pachelbel's Canon, is not art in its own right, among a possibly infinite number of other examples.

If that's the benchmark then art can pretty much just stop. None of it hovers in a void, unconnected with anything else in the world.

"Bad artists imitate. Great artists steal." - Banksy.
posted by mhoye at 10:25 AM on December 25, 2010 [2 favorites]

"Bad artists imitate. Great artists steal." - Banksy.

I thought that was Picasso!
posted by Max Power at 10:37 AM on December 25, 2010 [2 favorites]

“(It came) from being downtown. It’s my own interpretation of it,” she says. “If I sit in a vehicle, that’s the view. You have to be in the street to see it like that.”


She implies that she made the painting from direct observation, but never comes out and says it. The number and positioning of headlights between the photograph and the painting are pretty damning.
posted by Nonsteroidal Anti-Inflammatory Drug at 11:06 AM on December 25, 2010 [1 favorite]

"Bad artists imitate. Great artists steal." - Banksy.

I thought that was Picasso!

that's the joke.
posted by ts;dr at 12:24 PM on December 25, 2010 [1 favorite]

Right, because international law decides who wins 2500$ prize. Let me know when they convene a tribunal in the Hague counselor.

The rules of the contest decide who wins the $2500 prize ("original work") and a Canadian court decides whether it's copyright infringement. Those are what is at issue. Not whether taking a photograph of a building or painting a soup can is copyright infringement (neither of them would be copyright infringement in the U.S., and I don't think they would be in Canada, either, although either might be trademark infringement, which is a royal pain in the ass for artists, especially documentary filmmakers). Laws consist of cemented conventions and are a result of a number of things, including rational debate. (From the comments by artists on this thread, it would seem that most painting contests have rules that prohibit copying other 2-dimensional works, even if it is stylistic copying.) Very few copyright judges are going to have difficulty telling you why painting a building is different from tracing someone else's photo. That said, if the artist can make the case that her work is original, more power to her. I've already defended Shepherd Fairey in this post.

My reference to international law was to explain to user:stinkycheese why I had thought it was okay to make an argument about Canadian copyright based on U.S. laws and really has nothing to do with my critique of your argument.
posted by outlandishmarxist at 12:31 PM on December 25, 2010

Well, not to be a dick about it, but I just get so tired (so very, very tired) of seeing discussions on the blue become about how things work in the U.S. when there is in fact some other place in the world being discussed. Sometimes it makes me want to drop into actual U.S. legal discussion threads and start quoting Peruvian legislature or something, you know?
posted by stinkycheese at 12:38 PM on December 25, 2010 [6 favorites]

Oh, I know. I think you're right, and I should have done a little digging into the Canadian law. I just wanted to explain my initial rationale.
posted by outlandishmarxist at 12:40 PM on December 25, 2010

To put it another way, Ad hominem, law is not about boiling every instance down to the same principle. We're not theoretical physicists. It's about figuring out what principles apply in which instances.
posted by outlandishmarxist at 12:46 PM on December 25, 2010 [1 favorite]

Funny how her "interpretation" is the exact same composition of the photo.

Not exactly. The animated comparison crops the painting to make the streetcars line up with the photo. It also ditches the waterdrops because the painter did. I'm surprised they didn't add a tile filter or something to approximate the brushwork.
posted by ChurchHatesTucker at 2:02 PM on December 25, 2010

Calzephyr and others, there is no “fair use” in Canada; Calzephyr and Outlandish Marxist especially should not have mused about fair use without double-checking. Fair dealing is much more limited than fair use even post-CCH. I don’t think O. Marxist is even aware that a specifically limited range of purposes of fair dealing are permissible and everything else isn’t (though d’Agostino in particular has argued that parody has been de facto read into the law).

My interpretation is that Turgeon and the Star are guilty not only of copyright infringement but the much more serious crime of moral-rights infringement.
posted by joeclark at 2:17 PM on December 25, 2010

Oh c'mon, there must be only about two or three ways of visually representing the Toronto Street Car system (and btw, what's wrong with the word Tram? - Street car seems so convoulouted, like side walk, what's wrong with pavement? or grave yard, cemetery is a lovely wordor indeed automobile - when CAR is so much more concise
posted by the noob at 3:05 PM on December 25, 2010 [1 favorite]

@joeclark: yeah, I followed up my fair use post with several on fair dealing. But thanks for the snark. Also, I don't know if you're aware of the changes to fair dealing after the recognition of a "user right" by the Canadian Supreme Court in 2004.

My interpretation is that Turgeon and the Star are guilty not only of copyright infringement but the much more serious crime of moral-rights infringement.
Moral-rights infringement is copyright infringement. Your copy right includes moral rights. I think you mean, "Turgeon and the Star are guilty not only of financially benefitting off the work of another, but the much more serious (serious how? legally?) crime (crime?) of moral-rights infringement. With overzealous, hyperbolic talk like this, you must be a prosecuting attorney. They always speak in moral absolutes.
posted by outlandishmarxist at 3:54 PM on December 25, 2010

Thank God we don't have to pay every time our eyes see something that has been photographed/painted/sketched/written about or we'd all be broke.
posted by thorny at 5:13 PM on December 25, 2010

Should she be free to do this? - of course.
Should she enter the results in a competition as her own work? - probably not.
Should it have won, if all the facts were known? - no.
posted by carter at 5:57 PM on December 25, 2010 [2 favorites]

I fixed that for her, not you, HuronBob. It's only misleading if you don't read it correctly.
posted by scruss at 6:05 PM on December 25, 2010

O. Marxist, among participants in this thread I am the most informed about fair dealing and moral rights. Among other things, I didn’t read CCH just yesterday.

American copyleftists always want everyone to be aware at all times of how fluent they are in copyright law. What they’re fluent in, if anything, is American law. Now, have I just described you, O. Marxist?
posted by joeclark at 6:11 AM on December 26, 2010

Like I said, thanks for the snark. I already admitted that Canadian law was different and that I was wrong off the bat. I was making fun of your high-minded self righteousness, not your knowledge or lack thereof. But again, copyright in Canada includes moral rights; it's not one versus the other. So that, at least, was wrong on your part.
posted by outlandishmarxist at 7:25 AM on December 26, 2010

Kinda interesting how different our arguments might be if things were reversed.

What if the photographer had taken a photo of the painting and won a competition from it?
posted by bobloblaw at 8:46 PM on December 26, 2010

I like the photo much better.
posted by vitabellosi at 3:44 AM on December 27, 2010

What if the photographer had taken a photo of the painting and won a competition from it?

That one's easy: photographs of two-dimensional artwork are considered copies, while photographs of three-dimensional artwork are considered new works. (That doesn't necessarily mean that the new work isn't infringing but it does mean that the photo of the painting would be.)
posted by mendel at 6:26 AM on December 28, 2010