Taking an iconic image and manipulating it isn't particularly creative. And although it might be lucrative, it's almost certainly illegal. But how long will the prime suspects avoid the strong arm of the law?
We've all seen them, those debasements of creativity. Whether it's Kurt or Elvis, Jimi or Marilyn, the number of vendors happy to sell iconic imagery dressed up with a bit of colour and printed onto canvas is terrifying. And let's not get started about online availability, where there are literally hundreds of examples of people looking to expend minimal effort to make a quick buck.
But although it's understandably tempting to set up shop and put your well-honed creative skills into lucrative practice, is it legal and, more importantly, will it spell the end of your creative career?
"You see these artworks on eBay all the time, and in the vast majority of cases they have no right to use the original image and are normally subject to a take-down notice," says Alex Chapman, partner at Briffa, a leading London law firm that specialises in intellectual publishing and media copyright. "These artists often try and conjure up the feel of an original copyrighted image, but there's really no skill involved in that."
The rule of law
The Copyright Designs and Patents Act 1988 is a complex beast, and not one that we have space to pick apart here. Suffice to say, that copyright infringement of this sort is far from a black-and-white subject, and the Act itself often makes it difficult to establish any breach at all.
Take, for example, the iconic image of Steve McQueen in The Great Escape. Meddling with this portrait, and then selling on the results, breaches several areas of copyright law, and from more than one source. Not only does the copyright of that particular frame from the film rest with United Artists - which has legitimate grounds to sue - but the representation of McQueen's image could be pursued by his estate; or the lawyers who work for it.
"There's a law firm who have a deal exclusively with Universal, and which specialises in going after people who misuse Scarface images," says Chapman as proof of the serious nature by which film studios take these matters. "But there's no science to it," he admits. "It's not black and white, so like the art itself it's very subjective."
That said, according to Chapman, the Act is pretty clear in one area: "Think about it. If a character, logo or something that's recognisable and associated with one company, or a film, brand or person is used out of context but is still recognisable, then most companies will sue - whether it's a straight-up facsimile copy or an image that has been digitally manipulated."
This is particularly pertinent when it comes to images altered in Photoshop. If you produce an image that someone else, at some point, no matter how far down the line, has played a part in creating, the copyright isn't yours. So, if you take a sourced image of Clint Eastwood's Dirty Harry, strip it to monotone and add a poor Warhol triptych mimic, the entirety of that creation didn't solely come from your head and hand. Simply running an existing image through a handful of Photoshop's native filters will never change where the copyright lies, and is certainly questionable in terms of creative value.
"Changing something is, in itself, using a substantial part," asserts Chapman. "You've copied it, not used it as inspiration. Tracing, manipulating or filtering elements of an image in Photoshop is copying, because it's using as its primary element a substantial and recognisable copyrighted image."
Legally, unless you have a licence to manipulate the image - which is both rare and costly - you're breaching copyright. "It could be only one centimetre from a four-foot square image that's been taken," Chapman maintains. "But that centimetre is absolutely critical and encapsulates the central essence of the original image."
Getting away with it
But what is the likelihood of being sued? In researching this article, we tried contacting three eBay vendors, who all seemed happy to sell us iconic imagery. Though they all declined to be interviewed, one seller did say he's been selling canvases through eBay for two years, and hasn't received a take-down notice, or been contacted regarding copyright infringement.
"It's not commonplace to be sued," admits Chapman. "Take, for example, Camden market. These people are so fly-by-night that it's very difficult to go after them. But it is something copyright holders take seriously - even more so if people are making substantial profits from it."
Copyright here in the UK seems clear, then. If you don't own the image, you can't do anything with it. And now, for the hordes flogging their digitally-manipulated reprints, a day of reckoning could well be imminent. The Gowers Review recently recommended that the Government make it easier to pursue copyright infringement and increase penalties, citing digital image manipulation as key transgressor.
But whether the argument remains a legal one, one thing's for sure. Digitally manipulating an iconic image isn't creative, and to many it certainly ain't art.