‘Cultural appropriation’, ‘unethical borrowing’, ‘plagiarism’ and ‘rip-off’ are recent headline-grabbing media comments criticising a photoshoot of Rihanna published in Vogue Paris in December 2017. In July 2018, Twitter user STEVE JXSEPH @STEVEJXSEPH posted on the images of Rihanna alongside artwork by Mickalene Thomas, commenting ‘I just wanna point out that this is very similar to mickalene thomas’ work and juergen NEEDS to explain what’s going on.’

Juergen Teller is a German-born, London-based artist and leading fashion photographer, who became professor of photography at the Academy of Fine Arts in Nuremberg in 2014. He was commissioned by Vogue Paris to art-direct the Rihanna photoshoot.

Mickalene Thomas is a US-based African-American artist recognised for artworks that pose what she describes as ‘questions about self-identity, sexuality, blackness and the dominant culture’ in a wide-ranging practice including photography, collage, printmaking, video/film, sculpture and installation. Thomas is most renowned for her 2D artwork using materials such as rhinestones, acrylic and enamel offering ‘a complex vision of what it means to be a woman [of colour] and expands common definitions of beauty’. Many public-facing institutional collections, mostly in the US, hold artwork by Thomas, whose commercial gallery representation is by Lehmann Maupin in New York City.

As social and other media interest gathered momentum, Lehmann Maupin published an initial response to Teller’s photographs ‘which have rightly been compared to Thomas’s work … Mickalene Thomas’ prolific body of work has been instrumental in addressing inequality within art history and art institutions through her representation and reclamation of traditional art historical genres and depictions of beauty and desire around the female body, particularly Black women, who have too long been marginalised in our culture. Throughout her career, Mickalene has developed an internationally recognised visual language that is deeply rooted in photography … Mickalene has earned the right to be recognised and commended for her ground-breaking contributions to contemporary art and visual culture, and for a signature aesthetic that she has been cultivating for decades. As Mickalene’s long-time gallery and advocate, we vigorously stand by her in defending the originality of her work.’

However, the originality of Thomas’s work has not been the focus of media comments alleging Teller’s (ab)use of Thomas’s artwork. Perhaps this diplomatic approach by Thomas’s gallery is understandable in the light of the fact that Lehmann Maupin also represents Teller, dealing only with his fine art work. As the gallery further explained: ‘we were not consulted or involved in his work for Vogue Paris. We will continue to represent Juergen in this capacity and are hopeful that there will be a resolution between these two artists.’ There have been no reports of personal comments on this matter by Thomas or Teller.

Media debate has thus far not alleged or suggested Teller violated Thomas’s copyright in her artwork. This is a useful starting point for consideration of the significant and interesting difference between style plagiarism and violation of copyright content. Violation of a copyright-protected work is normally decided by courts on a case-by-case basis according to the law of the country where an abuse is alleged to have taken place.

It is fiendishly difficult for lawyers expert in copyright law to assess whether a court would judge violation to have occurred, but courts in most countries would invariably consider whether the whole or a substantial part of the content of a copyright-protected work has been used by another artist without permission. The trickiest judicial question is likely to be whether a substantial part of another artist’s work has been taken and used; and substantial is usually a qualitative not a quantitative matter. In other words, not whether more than 50% of the copyright-protected content has been stolen; rather whether a key part of the copyright-protected content of original work has been appropriated. Put another way, courts look at whether specific and overall visual content of the original copyright-protected work has been borrowed, and not whether the style of the original copyright-protected work has been used.

Different countries approach this copyright content question in various ways. For example, the UK’s Supreme Court has explained: ‘What quality is one looking for? It must be answered by referring to the reason why the work is given copyright protection. In literary copyright, where copyright is conferred irrespective of literary merit upon an original literary work, the quality relevant for the purposes of substantiality is the literary originality of that which has been copied. In an artistic work, it is the artistic originality of that which has been copied … whether the infringer has incorporated a substantial part of the independent skill and labour of the original author.’

Applying such legal tests, courts assess the content of the original copyright-protected work visually through ‘non-expert eyes’ to consider whether key/substantial elements have been taken from the original and used in the second artist’s work. This cannot be an exact science. In relation to Teller’s images of Rihanna, it would be difficult to conclude that the actual content (lines, shapes, forms, configurations, perspectives, colours, and so on) of specific artwork by Thomas has been used in Teller’s images.

However, as recent media posts complain, there is an evident visual connection between the style of Teller’s images and that of Thomas, which was not credited or acknowledged in the Vogue Paris publication. This amounts to what is known in academic and scientific fields as plagiarism, and in this case style plagiarism.

Plagiarism is a concept derived from the Latin word for kidnapping. In 1st century Rome the poet Martial complained that other poets appropriated his verses – without acknowledgement – accusing each of being a plagarius. Plagiarism is stealing another author’s work and publishing it as one’s own without crediting or citing the source. Violations of copyright-protected works are almost always plagiarisms; but all plagiarisms are not automatically copyright violations.

Style plagiarism is the term normally used where the overall look/feel/mood of a work is viewed by spectators as being derived from or inspired by the style (but not the specific content) of a previous artist’s work. Style plagiarism connotes unethical behaviour, usually triggered where a previous artist’s style has been adopted without acknowledgement of source.
But throughout the history of western art, contemporary artists have drawn on the content, styles, concepts and ideas of earlier artists’ works. There has never been a generally understood and accepted and clear distinction made between imitation, appropriation, style plagiarism, artistic originality and originality. Modern art history and its canon has looked backwards to label artistic styles or schools, such as Impressionism, Symbolism, Futurism, and when later artists chose to work in new and developing contemporary styles (that we now label, for example, Post-Impressionism) other artists did not scream ‘foul’ from the rooftops because their style had been ripped-off. They had no reason to complain artistically or ethically or legally.

The Teller/Thomas case illustrates many aspects of differences between style plagiarism and violation of copyright-protected content. It is highly unlikely that Teller’s striking use of Thomas’s style amounted to a violation of her copyright-protected content; but failure to ensure that Vogue Paris publicly credited Teller’s homage to Thomas was perhaps questionable (weirdly, the Vogue Paris Instagram account added the hashtag #MickaleneThomas when it promoted Teller’s photoshoot on 1 December 2017). And beyond such legal and ethical considerations there is also an outstanding cultural double-take: Thomas’s subject-matter being ironically inverted.

© Henry Lydiate 2018

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.