Where art imitates 'art'

There has been a furor. The popular TradeMe auction site has banned some painters from listing their works on the site.

Their reasoning: the paintings are not the artist’s own work. They, it has been argued, breach the copyright of a photographer.

This raises an interesting question about the nature of copyright and what constitutes art. There are other issues relating to trade descriptions of the work, but for the purpose of this discussion I will set that aside.

Here's the bully: Painter sources an image published on the internet he models an oil painting on the photo, making little or no alteration to the composition of the image. At first glance you might think the images were the same. But only at first glance. One, you see, is a record of a landscape created using a scientific instrument and some chemical processes. The other is a painting. There is little artistry in the work that is, in fact, the photographer's own. He has made a record of a scene. One might argue that he has composed the image - that by placing the camera in a certain position that he has created a work of art that is particular to him.

Following that argument a photographer who takes a picture of Uluru (Ayer's Rock) at sunset from a particular vantage point becomes the 'owner' of the right to photograph that scene and any photographer who subsequently placed her camera in that same position and photographed the same scene would be in breach of the copyright in the original work.

That, of course is absurd. The argument would follow that each image was unique; that the setting itself was in the public domain and that there was nothing particular to the image that was introduced by the photographer. There is a clause in patent registration law that demands that the object, system or practice being patented must not contain elements that would be obvious - that is - might easily be observed or claimed by anyone under the same circumstances. This applies to the images in question, there is nothing particular to the photograph introduced by the photographer - the image of pohutakawa flowers in the foreground and ocean view in the background is remarkable for its mundane ordinariness. There is nothing especially original and if you were to go the same spot with your disposable camera you might compose the same scene. If you were to do so, would you be accused of breaching a copyright?

Is success in photography a matter of showing up with a camera?

On the other hand there is the dynamic that an oil painting is not like a photograph. The artistry of the image lies in the skill and experience of the painter to mix and apply paints and media in a way that is directly affected by his experience and skill. If you look closely at a painting the hand of the creator is evident, it is not a chemical reaction. A reasonable person would not think that the painting was a photograph, or, importantly, the photograph in question.

There is a long history of using photographic references in art. And that is just what they are in this case, reference points. I cannot see how the photographer's livelihood is in any way affected by the creation of the painting.

On the other hand, if someone were to photograph the painting and claim it as his or her own work I would take issue with that.

That the whole ridiculous storm in a teacup was prompted by an organisation called 'ScamBusters' is telling. What is the scam exactly? Was the buyer unhappy? Anyone who buys a chocolate box image of some pohutakawas and an ordinary composition would, one would assume, have low expectations and were probably quite happy to have some art-craft in their rumpus room.

It seems the only real victim in the process is common sense. Though, perhaps, the mischief is simply part of the PR offensive being mounted by Trademe itself. Seems there is a TV news item every second day (could their be a listing on the stock market on the horizon?)

Click to visit TradeMe


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