Copyright Intrigue! by Joe

Maybe you’ve heard about the troubles that local Champaign-Urbana band Elsinore recently encountered with the cover artwork for their new album, Yes Yes Yes.  The artwork is a painting by UIP’s very own student worker Brittany Pyle, a friend of the band and a photography and video art student here at the University of Illinois.

The estate of iconic pop artist Roy Lichtenstein was claiming that Brittany’s artwork was a copyright infringement of Lichtenstein’s Kiss V, which was, like so much of his other work, itself a reinterpretation of a comic book panel that is apparently not copyright protected.  Brittany’s painting was originally composed as a class assignment in derivative artwork, and she used the public domain comic book panel–and NOT the Lichtenstein work–as her source.

Thanks to the interwebs and the blogosphere and The Twitter, this local episode caught national attention, and the Lichtenstein estate recently backed off and allowed Elsinore to use the artwork.  We asked our rights and permissions manager, Kathleen Kornell, about her take on the case, and here’s what she said:

Well, I think you have to consider Lichtenstein work of art to be a derivative of the original, which I assume is in the public domain. Derivative works are those in which someone else’s creation is “recast, transformed, or adapted.” And a derivative work can be entitled to copyright protection in its own right. “The reasoning behind this is that the manufacturer of an art reproduction in a medium different from that of the original required the reproducer to contribute some measure of his own special skill, and that contribution is entitled to protection.”

The above sentence was taken from The Copyright Book: A Practical Guide, 4th Edition, by William S. Strong and referred to a mezzotint reproduction of a painting but I think it could also apply to Lichenstein’s Kiss V, which is magna on canvas v. the original comic book images. But the protection afforded to a derivative work extends only to the original contribution of the maker.

So, I guess you would have to ask what is original and copyrighted about Roy Lichtenstein’s work and did Brittany appropriate enough of it to be considered copyright infringement? And I think that answer can be subjective and even a copyright lawyer might have trouble determining it.

I don’t believe I’ve ever worked directly with the Lichtenstein estate but even if they are not entirely in the right in this matter, they probably have the time, money and legal power to back their claim whereas Elsinore might not.

Fortunately for Elsinore and their fans, the Lichtenstein estate decided NOT to pursue this claim any further, but for a few days it provided fodder for some hot conversation, both online and off.

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Marketing & Sales Manager since 2012