Boston Magazine’s May 2013 cover image by photographer Mitchell Feinberg depicted running shoes from Boston marathoners shaped into a heart. It was a fitting, smartly conceived statement to a city recuperating from the terror of the finish line marathon bomb attacks. To promote the upcoming Bath Half Marathon 2014, Bath Magazine in the UK printed a cover image almost identical to the Boston edition, sparking an internet controversy.
The Boston cover was reproduced in poster form with all proceeds, around $125,000, benefitting the One Fund, a non-profit dedicated to supporting families affected by the tragedy. The Bath Magazine cover caught fire when it was tweeted earlier today and the attention did not go unnoticed by Boston Magazine. Carly Carioli posting on the magazine's web site issued the following press release asking that the Bath Magazine follow the original cover's altruistic inspirations with a donation to the One Fund. Bath Magazine issued a public apology on their twitter account earlier today which has seemed to do little to mitigate the anger from Bostonians posting on twitter.
Increasingly in the digital age, creatives walk a delicate balance between drawing inspiration from a visual source in the creation of a new work and outright theft of the source material. We have seen this recently in Shia LaBouef's admission that his film HowardCantour.com was taken from Daniel Clowe's graphic novel Justin M. Damiano. Without any credit to Clowe's work, LaBouef is soon to be sued for copyright infringement, based on postings and images appearing in his twitter feed.
Last week, the Associated Press announced it would be making moves to prevent George Zimmerman from selling a painting of Florida prosecutor Angela Corey given its close resemblance to a photograph by AP contributing photographer Rick Wilson. Zimmerman, eager to offset legal expenses from his defense against a murder charge for shooting Trayvon Martin, recently sold a painting for $100,000 via eBay. One cannot help but see the AP's move as similar to the legal action that it took against street artist Shephard Fairey over his use of an AP photo of Obama for a "Hope" promo poster. Fairey and the AP eventually came to a settlement out of court.
Ultimately, at issue, is the discrepancy between fair use of an existing visual image and the measurement of how far does an artist or creative have to go in altering source material for it to be considered, legally, as an entirely new piece of work. At issue is the amount of the original work appearing in the new one and the financial effect it exerts on the original copyright holder.
The recent case of fine artist Richard Prince's use of photographer Patrick Cariou's images of rastafarians illustrates how the legal interpretation of fair use is far from absolute. Prince's appropriation of the photographs appeared in the exhibition "Canal Zone" at the Gagosian gallery and generated more than $10 million. The work, which seemed to do little more than paint over Cariou's images, was found to be an illegal infringement by a federal court in 2011. Judge Deborah Batts wrote that Prince's use of the images did not constitute a new use as it failed to "in some way comment on, relate to the historical context of, or critically refer back to the original work." In April of last year, this decision was overturned in a US Appeals court, a move indicating that Prince's work was a "new expression" with a differing aesthetic.
Despite the gray areas in assessing fair use, it is difficult to argue that the Bath Magazine cover is anything short of an outright theft of Boston Magazine's iconic May 2013 cover. While the magazine has admitted its mistake and apologized for causing offense, we'll have to wait and see if the editors accept Ms. Carioli's challenge. As she wrote in today's release, "we hope that if you were so bold as to borrow our idea, you will also borrow the spirit of that cover—and make a significant donation to the One Fund in the name of those who were unable to finish the race."