Last year’s Turner Prize controversy was pure artlaw territory and deserves closer examination. It concerned one of four short-listed artists, Glenn Brown and his large canvas Loves of Shepherds, 2000. Full colour reproductions of the work were splashed across most newspapers, side by side with the work of Anthony Roberts who had provided artwork for a book jacket illustration of the 1974 Pan publication of Robert A Heinlein’s science fiction novel Double Star – ironically, a story about ‘the greatest unpersonation of all time’.

Glenn Brown, was trained at Goldsmiths College, London and in recent years has concerned himself with taking other artists’ images as a starting point for his own work. His reputation for appropriating others’ images in his work is well-established, but several years ago Brown ran into legal problems with Dali’s estate over allegations that he had produced a copy of a Dali work, rather than developing it into a new work of his own; that dispute was resolved.

This issue raised its head around November 2000 when an amateur artist saw Brown’s work at the Turner Prize showing and recalled Roberts’ 1974 jacket cover: it was such a compelling image that he easily sourced the book with its cover, and confirmed the visual connection.

In copyright law, the visual connection is the real test of ‘originality’. In order to qualify for copyright protection a work must be ‘original’, in the legal sense that it is not ‘substantially derived’ from the earlier work of another artist, and ‘substantial’ in this context means qualitatively, not quantitatively. The test is applied by a ‘non-visual expert’ (in other words, the person in the street, not an artist, art historian or curator) by placing the two works side by side and asking whether there is a visual connection: in other words, is the essential shape, form, configuration or perspective of the earlier work substantially present in the later work. If so, there is a connection, and the later work will have failed the ‘originality’ test.

An obvious example is a photocopy, or photograph of a two-dimensional work. However, when artists use their aesthetic skill and labour to paint, draw, print or otherwise make a new work of theirs which is substantially derived from another’s work, the question naturally arises as to whether the later ‘new’ work can be justifiably said to be a result of the ‘original’ work of the later artist. From the legal viewpoint, if the later work is visually connected (in the way described earlier, and in the eyes of an ordinary person), the later work will not be an ‘original’ in law. Artists, art historians and critics may, however, take a different view of aesthetic, as against legal, ‘originality’. This is what appears to have been at the heart of the Brown and Roberts controversy.

In that case, most ‘ordinary’ people (non-visual experts) immediately judged Brown’s work to be a ‘rip-off’, because it looked ‘just like’ Roberts’ earlier work. However, visual experts, including Tate Gallery personnel and the Turner Prize jury, thought otherwise; but, in their cases, they would appear not to have been using the visual connection test of legal ‘originality’, but an aesthetic test of originality.

Richard Cork wrote in The Times (November 28, 2000) that the difference between Brown’s work and that of his source was easy to grasp, and that the later work was in his view ‘a swashbuckling, spectacular work, and in no sense deserves to be dismissed as bad art or a rip off’. Cork reminded readers that this issue has been around for centuries, during which period artists have always been dependent on each other for visual ‘starting points’. And, of course, he is right.

But there is a world of difference between Monet’s Dejeuner Sur L’Herbe and Picasso’s cubist version thereof decades later; if Picasso had not made reference to the original in his own title, few people are likely to have made the ‘connection’. Warhol’s series of iconic and graphic silkscreens of Elvis Presley, Marilyn Monroe and so on, were reproductions of world renowned photographic images of those icons executed on a vast scale, often using primary colours, framed and placed in an art gallery setting; they were to ‘ordinary’ people undoubtedly visually connected to the original photographs (and would therefore probably fail the legal ‘originality’ test); likewise Warhol’s handmade re-working of the Campbell’s soup can label or the Brillo boxes. Whether or not Warhol has secured a licence to execute such works from the copyright owners of the originals is not clear.

In very recent times, Damien Hirst’s Hymn was an exact copy, on a very large scale and in bronze, of a small toy made by Humbrol: visually connected for sure; but was it ‘aesthetically” original? In the 1960s Richard Hamilton re-created Duchamp’s large glass’ (The Bride Stripped Bare By Her Bachelors, Even) when the original would not be released by the gallery in Philadelphia (where it was located) for a Duchamp retrospective at the Tate Gallery. The original had been damaged in transit in the US, and the gallery was fearful of further. damage occurring in transit to the UK. Such a major retrospective would have been unthinkable without the large glass; hence Hamilton’s idea of reconstruction – and Duchamp’s support for this being done. Visually connected for sure, and deliberately so; as for ‘aesthetic’ originality, Hamilton’s version was exhibited by the Tate in the Duchamp retrospective, and remains there as a Hamilton work.

Mark Boyle tells an intriguing story about a rip-off by the manufacturers of Mariboro cigarettes. An advertising campaign was launched by Marlboro by constructing a huge hoarding on which they had made a three-dimensional mock up of an imaginary piece of desert America, to look ‘just like’ one of the Boyle Family ‘surface-of-the-earth’ works; a discarded Marlboro cigarette packet was strategically placed there. Visually connected? In this case, the later image looked as if it might have been a Boyle Family picture, but was not in fact one of theirs. Some people who know their work thought it was one of theirs (that they had not yet seen) and said so. But it was not, and the Boyle Family had not given permission for this plagiarism to occur. Marlboro had ripped off the idea from the Boyle Family, but had ‘done their own thing’; and so passed the legal ‘originality’ test.

Le Corbusier is reported to have said something to the effect that ‘all artists steal; but the truly original artist repays a thousandfold’. Le Corbusier was not an art lawyer, but his epithet comes close to marrying the law’s attempt at defining originality for copyright purposes, with the art world’s approach to aesthetic originality; because the law requires artists such as Glenn Brown to ‘repay a thousandfold’ so that ‘ordinary’ people would not spot the visual connection when the works are placed side by side.

For this writer’s money, Picasso cuts it with his cubist version of Dejeuner Sur L’Herbe, whereas Brown’s Loves of Shepherds, 2000, does not; but, of course, the true title of the piece should have been (as the Tate Gallery later admitted, and as Brown had originally stated) subscribed with the words ‘after Tony Roberts’.

© Henry Lydiate 2001

NOTE (added November 2009): Roberts’s claim against Brown for copyright infringement was eventually settled out of court; and Brown amended his painting’s title by adding to Loves of Shepherds 2000, the words (After Anthony Roberts).



This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.