I will spare you my interpretation of US Copyright laws and guidelines and instead link you to the US Circular 1, which explains what is protected under US Copyright Law. If you are an artist, read it and then organize yourself to apply for the appropriate protection. If you are an art dealer representing artists, encourage and support your artists in achieving the appropriate protection in the laws of their jurisdiction.
In the creative world, specifically the art world, what constitutes inspiration versus known plagiarization has always seemed to be a huge grey area. Since the art world, as vast as it is geographically, is really and truly smaller than we realize, everyone knows each other, everyone is looking at everyone’s work all the time, and everyone has a mobile phone with cameras at the ready to snap images and post them to social media for posterity. The eventuality of some form of copying and/or copyright infringement seems inevitable.
Artists, particularly collaborative artists are always in conversation with their peers and with the artists of previous generations whom they admire and respect. A younger artist’s style may be derivative of another artist’s style or technique but different enough that it is not a precise replica. A practice comprised of the production of precise replicas would make one a copyist, not an artist.
My question is how do you make the determination about what is a copy versus what is inspiration? When does the desire to achieve an aesthetic an artist genuinely admires turn away from building upon the existing aesthetic and pushing it forward versus duplication without citationality? Apparently these questions are still being meted out, and most recently, in the discourse surrounding the case of Lina Iris Viktor versus Kendrick Lamar.
Yesterday, Sarah Cascone writing for artnet reported that New York Federal Judge Paul A. Engelmayer, “ruled that he couldn’t yet say that Viktor would not be entitled to a share in the profits from the sales of the Black Panther album and its hit single ‘All the Stars’ should she be able to prove that he copied visuals from her paintings in the song’s music video.”
Really and truly, I find this entire scenario fascinating, but first a little background.
The Long and the Short
Both the creators of the film Black Panther and members of Marvel’s PR team contacted Viktor to ask if she would allow her works to be in the film. Viktor declined. Rapper Kendrick Lamar created the song “All the Stars” for the film. Later, a music video for the song “All the Stars” was created featuring an aesthetic that is decidedly similar to Lina Iris Viktor’s paintings.
But do not take my word for any of it.
Why this case is important
Whatever the outcome it will be recorded and accessible as precedent for future, similar incidents. As a rule artists, particularly celebrity artists, when accused of stealing another artists intellectual property, prefer to settle privately out of court. A settlement is often perceived as an admission of guilt but if the matter never reaches court, no official, legal determination can be made and thus guilt, even if accurately presumed, will never be proven. In this scenario, a determination will be made - guilty or not guilty - and it will be noted in the public record en perpetuum.
A personal assessment
I have seen Viktor’s work in person and online. It is distinctive. When you see this work you can authoritatively state, “ This is Lina Iris Viktor”. I have also seen the music video. It “borrows” from other aesthetics too, namely South African township and shebeen culture and Congolese Sapeur culture. Thus, it is not shocking that Lamar’s creative team would want to include Viktor’s aesthetic. What they included is not bad, but it’s clearly - now donning my curatorial lens - a noticeably less lush copy.
Extremely notable is the reality that Viktor, as per the artnet article, was asked on two occasions once by the filmmakers and a second time by Marvel PR if she would agree to have her work included. That she said no twice, was sufficient enough indicate her disinterest in the association. Apparently, Kendrick Lamar’s creative team for the music video, did not agree. Whatever you opine of her decision, Viktor had the right to say no and her wishes should have been respected.
I am also thinking about how this plays into discussions about the ways in which artists get paid, and don’t get paid, for their work. Artists, if they have a gallerist, sell, often exclusively, through their gallerist who has clients that are private and institutional collectors. When an artist creates a new body of work for a museum exhibition, he or she receives either a commission or an artist fee. If there is programming attached to the exhibition, they [may] receive an honorarium for their participation. Once a work is in the public domain - meaning no longer in the hands of the artist or his or her gallerist - the artist has no guarantee of earning profit from that work. Let me rephrase for clarity: any unauthorized use of an artist’s work and the ideas contained therein, constitute a loss of earnings for that artist. This statement stands true in the music industry to. It is unlikely that Lamar and his team are unaware of this fact. More importantly, Viktor and her lawyer are crystal clear, and proceeding according.
Plain and simple, this is stealing. It happens all the time and it goes unnoticed because the offending parties prefer to settle so as to avoid bad press and actual proof of wrongdoing. What I appreciate about this case, is that Viktor is taking a firm position that she will not stand for the abuse of her autonomy to refuse offers to use her work in ways that do not interest her. I also appreciate that she took this matter to the court system, as it brings a level of transparency to these issues that is rarely, if ever, achieved. No matter the outcome, there will be legal precedent recorded for posterity.
Negarra A. Kudumu
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