It’s Not Stealing If It’s Art: A Re-Primer on Image Appropriation for the Internet Generation

Left, Arabelle Sicardi and Tayler Smith's original photograph, "Hari Nef," 2014. Right, Zak Arctander's appropriation, "Cheeks," 2015.
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… every text is from the outset under the jurisdiction of other discourses which impose a universe on it… [text operate] within the totality of previous or synchronic texts …

– Julia Kristeva

Julia Kristeva branded the concept of “intertextuality” nearly four decades ago, but technology and philosophy are poorly-matched bedfellows. It’s time to spell out the basics of appropriation in visual culture for the smartphone generation.

I’m sorry that the above sounds paternalistic on my part. Actually, I’m not. An entire generation of artists raised on the internet shouldn’t need instruction on how image transference and re-purposing works: you created this free-for-all; please stop complaining when you occasionally fall down and get a boo-boo in your own bouncy castle.

Of course, I am referring to two recent art “outrages,” one involving Richard Prince and his re-purposing of images created by, among others, the for-profit pin-up site Suicide Girls; and another upset attributed to an alleged follower of Prince, who re-purposed the work of two emerging queer feminist photographers.

I rather doubt the Prince works would have received a tenth of the press they did (and that I am giving them now) had it not been for the (delayed) reaction by some of the artists and models featured in the show. Prince skimmed through his Instagram feed, picked some photos of women he found attractive (a sadly predictable lot of rather traditional sex-pot images), and blew up the scans. He first showed these blow-ups at Gagosian Gallery over a year ago, and nobody cared. Then the works started selling at the Frieze Art Fair New York for around 100K, and suddenly everybody cared. A vacuous collection of casual gestures by an over-rewarded artist, a series of works that ought to have been yawned into oblivion, became a cause celebre.

Prince has won legal battles over copyright before, and won them handily. So, in the United States, at least, it is legal to re-purpose images created by somebody else. Forget about using the law to fight your battles. As for the “natural law” proposition that theft is inherently unjust, let’s remember that ethics and legality are wholly different entities, and ethics is the far more slippery of the two – because ethical dilemmas are as subject to relativism, and relativist judgements, as are the very works in question. Ethical arguments have about as much value in this situation as discussions of “good taste” or, indeed, the whole tired “but is it art?” merry-go-round.

I do not doubt, however, that the work of one Zak Arctander, recently featured in the New Yorker, would be mostly overlooked (and not making the kinds of headlines it has made) had not the photo-based artists Arabelle Sicardi and Tayler Smith, who created the image that forms the base of Arctander’s weak piece, called him out on Jezebel.com for his lack of “empathy.” Getting your art in the pages of the New Yorker is no mean feat. We should all be so lucky. But the New Yorker comes out every week, with new art inside frequently enough, and the article Arctander’s work accompanied focused (ironically enough, given the subsequent controversy) on the “new freedom” in photography, not on Arctander’s work in particular. Who even remembers the art used to illustrate (or decorate) an argument from two weeks ago, a month ago? But Sicardi and Smith’s blunt dissection of Arctander’s work, and the power systems that inform it, has given Arctander’s art (again, the irony) “legs.” Sicardi and Smith’s j’accuse is at its roaring best when it offers the following: “If art is about perspective, it’s also always about power: the production of it, the reclamation of it, and the violent reversal of that rebellion, too. So I can’t even say that what happened to our original photo is simply theft, and not art – I know it’s art. It’s just bad art, it’s lazy art … .” Indeed. I could not agree more. Nor could I part company faster with any subsequent claims. Art is “also always about power,” and therefore, by its nature, disempowers somebody. In the internet age, that “somebody” is all of us, because we’re all on here, all the time, and by that very act of digital self-presentation (for acceptance, praise, scrutiny, abuse, you name it), we’ve signed on to a hierarchical system that enacts the same object/subject, viewer/viewed dynamics the artworld has always performed – only much, much faster.

To Sicardi and Smith, the Suicide Girls, and other artists (and artists’ subjects) who feel ripped off, I need to say that I understand and sympathize: I’m a 50-year-old queer writer from Canada … there is no such thing as an injustice I don’t understand or want rectified. I get it. You feel powerless, and to some extent you are – but only if you buy into the narrative of ownership in the first place, which is where I get confused by your outrage.

Here is where I must ask, what don’t visual artists today get about putting imagery up on the internet? Once you click “post,” you lose ownership. And you know this because you participate in the grab-ass yourself. Have you never enjoyed or made a comical meme based on somebody else’s imagery (the awkward family photo created by people you’ve never met, the photo of the prancing cat, stills from Game of Thrones)?; have you never clicked through Giphy.com for a laugh, or participated in a brand hack to protest the misbehavior of a corporation? Have you never shared images with your friends of sexy people you’ve stumbled on while sliding through Tindr or Grindr? How is that OK, but your art is sacred and indeed subject to copyright protection? If we get past the idea of full ownership and instead accept that we are all contributors to the vast sea of information, we stop thinking of our own works as deserving of dispensation, of rescuing from drowning. In my own case, I have published ten books. Almost all of them are available via Google or other search engines, in their entirety. There is nothing I can do.

The fact that Richard Prince is a rich and famous (white, straight, male) artist and you are not is sad-making (and infuriatingly typical of the artworld, every damned time), but not in play here. Appropriation as a strategy is as available to him as it is to you. You just got the shit end of the stick in this particular case. Sort of like that guy who stupidly posed in a Christmas sweater with his cat, back in 1984, that guy whose image you’ve been sending out as a holiday e-card since 2011. Where’s his money?

I realize this is a harsh proposition, and another way of saying “just deal with it,” which rarely helps anybody, but we all now live in a world surrounded by imagery first created by others and subsequently reworked, put in a wholly different context. It is naïve for us to expect that whatever we might create is immune from this viral replication fever and/or any acts of detournement. Every time you use an image you found online for your own purposes, whether for a casual joke between friends or to make capital-A Art, you’re performing the same action as Prince has performed (and been performing for decades). As Kristeva noted, you are also investing that new work with both your own associations and ideas as well as anticipating that following viewers will recognize the very different associations and ideas that informed the “original.” In this dialogue, nobody is the core creator and everybody is potentially a new creator. The difference is that Prince figured out how to monetize his one-liners long before you and I were born.

It is especially strange to me that artists participate in the act of “building their brands,” as they are constantly told to do, by putting their work online, but then get angry or confused when their brand is increased by somebody else’s attraction to and re-use of that work. Isn’t that at least partially the point, the viralizing of the brand? Even a misuse of a brand-self is a form of PR for that brand-self. That’s not cynicism, it’s a fact. P.T. Barnum is whistling in his grave. Better a meme than a nobody.

When the Prince uproar started, it took the media about 11 seconds to find a handful of women who had no problem at all having their faces replicated in his art. Some claimed to find it flattering. The trouble with the “build your brand” message is that it does not alert potential brand-builders to the fact that some aspects of their brand, particularly the imagery, might (and if you are a woman whom your particular culture deems “attractive” or “unattractive,” let’s just be honest here and say it certainly will) be used in ways you never anticipated, without attribution, and, far too often, in ways you find offensive. The artworld is no less prone to bullying than the schoolyard.

I’m not arguing that in order for people to avoid having their brand/self be abused they hide from the online world (that sounds too much like “don’t wear a short skirt if you don’t want to be harassed”), and I am aware that brands/selves created by women are much, much more likely to be abused because the digital world is, of course, a mirror – granted a warped mirror, but one that nevertheless reflects and refracts real life. And in real life, women and their images, those created by them or of them, are treated like fodder.

Thus, this is the big flaw in the “build your brand” rage: once it’s online, it’s not your brand, it’s everybody’s brand, and assholes will be the first in line to fuck with the brand, no matter how cleverly or beautifully or carefully constructed. Attribution becomes as antique a notion as politeness.

In an ideal world, all participants in this tangled system would be paid, but artists are hardly paid in the most consummate, pre-internet sorts of situations (I’m looking at you, National Gallery of Canada). Need I repeat the cliché that the internet is the “Wild West”? In a perfect world, all the participants in an exchange or re-jigging of an image would be credited. But why do we expect such high-mindedness when no other image-making system works that way?

Take the movies, for instance, the single most popular and widely understood medium on the planet, a medium based on and generated by a flow of imagery so fast it tricks the brain into thinking one is watching a live-action being performed before one’s eyes. Even in this highly profitable and relentless image bombardment, directors are constantly stealing shots and compositions and effects from one another, and movies cost and make hundreds of millions of dollars, real money worth fighting for in court. Making art is, after all, a retail enterprise. But they get away with it, and if you can get away with stealing from the competition in one image-generating field (the movies, television, advertising), where the money piles up at a rate that 99.9% of the world’s practising artists cannot imagine (the latest Jurassic Park movie made over a billion dollars in less than two weeks), you can certainly get away with theft in an image-generating industry with markedly lower stakes.

Contrarians in this debate love to cite the legally-coded practice of sampling in pop music. They use this as an aspirational parallel to image re-use. But the recorded music industry took a century to create a legal framework around the use of melodies and arrangements, and that framework is far from stable (see the recent case of Robin Thicke vs. the estate of Marvin Gaye – that a major pop star, one equipped with an army of lawyers, can still fall afoul in an ownership debate is very telling). The image sharing/poaching/re-packaging possibilities created by the internet are, by comparison to the music industry, in their infancy, as are any subsequent structures devised to provide regulation and/or compensation.

When the Richard Prince/Suicide Girls blips first pinged, I was taking tea with a wise old queen, who reminded me of “party line” telephones – telephone systems common to rural Canada half a century ago. A party line was a shared line. The phone rang, you picked it up, and if the call was not for you, you hung up and let the intended recipient carry on. But nobody ever played by the rules. Listening in on the party line was unethical, and completely normalized. Everybody did it.

“The internet,” my dear pal offered, “is the new party line. If you don’t want to share something, don’t use the party line.”

We all know what we should do when it comes to image recycling, but we also all know that we can and will, and will exactly because we can, not always behave admirably, or even legally. And since we all know how the system works, we can’t freak out when someone does to us what we have all done hundreds of times to others, usually total strangers.

The trick is to make the game work for you by keeping the game running. Re-appropriate the re-appropriated; add another mirror to the funhouse, up the ante. Or get off the line.

5 Comments

  • K.I.A. says:

    The idea that ‘all art is free’ is the outdated idea. Even Prince says he wishes now that he had sought rights to use Cariou’s photographs (http://www.wsj.com/articles/artist-richard-princes-secret-retreat-1417536346). Re: music, it’s really only been since the 80s that technology enabled recorded samples, years after R. Prince’s sampled visual appropriations… and music, as you noted, has already worked it out (clear the sample ahead of time, or pay up later if it’s a hit… which enables unknowns and superstars to compose using the tech.) Writing has worked it out — you cite your quoted sources (or get fired/get your book pulled). Film has worked it out — if you use footage, you license it (not the same as using a similar style of shooting.) But generally, punch up not down; Koons, Prince, Fairey… why not ‘clear’?

    • Music sampling has been around far longer. The Beatles sampled BBC radio for “I Am The Walrus” and they weren’t the first. In the early 80s it just became somewhat simpler to sample. All art being free is hardly outdated or we wouldn’t still be arguing the point. Manet “sampled” Giorgione and Raimondi (amongst others). New non-corporate favoured copyright laws are what are needed, although I do agree with punching up, something neither Prince nor Fairey did in their notable cases.

      • K.I.A. says:

        music sampling has been around since the ’40s; by 80s i meant at the point where it became a common compositional tool. also, there is a difference between ‘sampled’ and ‘inspired by’ or referencing. if manet had physically used giorione’s canvas (resigning, or cutting out a part… or tacking up a comment below the painting in the museum and claiming it was his work), that would be sampling.

  • Zach says:

    “Appropriation as a strategy is as available to him as it is to you.” While that’s true, appropriation is a process that’s suppose to divert already established power dynamics, not reiterate them. I can’t get behind the idea that because something is online that it means it’s 100% available for use without consequence because it doesn’t translate into the physical world. Just because there isn’t a rope in front of a painting doesn’t mean I can just take it off the wall. And maybe it’s a generational thing, but there is definitely a difference because content made to be disseminated as a meme and content posted online as means of marketing yourself. Your solution to not put content online if you don’t want it to be stolen is impossible for any young artist trying to gain exposure for their work.

  • Jeffrey sklan says:

    Superbly written essay. As both a photographer whose work get appropriated , and an artist’s rep protecting others, I appreciate the thought you put into this article. Thank you,
    Jeffrey Sklan, LA CA

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