Hot Shot

March 1, 2011

Blake Gopnik at the Daily Beast has pointed out that the cover of this weekend’s New York Times Style magazine featured nearly the same composition as a photograph first exhibited in 2003 by Josephine Meckseper.

Is this a coincidence, an homage, a rip off? For legal purposes – is this a copy?

For the artist to sustain some kind of claim for copyright infringement against the newspaper, she would need to show, amongst other things, proof of copying and actual copying.

Gopnik reports Sally Singer, the magazine’s editor, as saying that she “had no knowledge of Meckseper’s image, nor did Cass [Bird, the photographer].” Is there any proof? Gopnik also reports Meckseper’s dealer, Elizabeth Dee, as saying that “the entire art world sees this as a Josephine Meckseper adaptation.”

Whose opinion has more sway in these matters – the players of the art world or the legal world?

Dee uses the term “adaptation”, but the law would require “actual copying.” Meckseper would need to show that original elements from her work were taken. But how original is a matchstick in the mouth? Singer suggested to Gopnik that both images are probably inspired by a 1960s image taken by photographer Melvin Sokolsky. Amy Stein, photographer and blogger, points out another similar composition featuring Jack Nicholson.

“There’s not much of a copyright issue, here, as Meckseper’s dealer admits,” Gopnik writes. “Artists have always riffed on each other’s work, but when the borrowing’s very close, these days it is common to give credit – to avoid just this kind of kerfuffle.” While it might be a best practice in the industry to acknowledge other artists’ work, it certainly wouldn’t be conclusive as to any issue of fair use.