Cartrain & Damien Hirst: Appropriation vs copyright infringement (2009)

R.J. Preece (ADP)
Creative Business & Entrepreneurship | Published 08 June 2009
Co-partnered with Sculpture magazine
Page 2 of 5

Cartrain and Damien Hirst

R.J. Preece: Please take a look at two photos of artworks in the Daily Mail. One photograph, above, is of Damien Hirst’s diamond-encrusted skull; the other is of a collage by a 16-year-old artist, Cartrain. (Right click the following and open in a second web browser: Damien Hirst ’threatened to sue teenager over alleged copyright theft’.)

He’s appropriated the skull and has positioned things around and in front of it. My understanding is that this is not copyright infringement.
Paul Tackaberry: Why do you say that?

RP: Because first there are images in front of the skull: the Kodak advert and the image of the book "How to be a detective". There’s also some sort of image behind the skull, and the man is holding up a spoon. There’s also a sliced piece of fruit. This places the skull source material into a different context. It’s a completely different image with a different aura.
PT: Is that how you see it? This is fairly non-contentious legally. Ask yourself, what portion of the original— and not just the quantity but also the quality— appears in the new work? If a "substantial portion" of the "original" appears in the new work, then that’s all you need for copyright infringement. This assumes the first image is "original."

It seems arguable that there is a copyright infringement here. I think it would be difficult to argue that the new work doesn’t contain a substantial portion of the original. Quantitatively, about 80% of the skull is in the second image. The most interesting part of the skull, I find, is the larger diamond and design on the forehead. The large diamond adds to the uniqueness, and that feature is shown in its entirety in the new work. The only part that is not visible is really at the left bottom. Just because part of the image is obscured, doesn’t mean much.

RP: What if the Kodak advert was in front of the Skull Star Diamond?
PT: Then it’s less likely to be an infringement. Where did the 16-year-old get the photo of the skull?

RP: I don’t know. Probably off the Internet. Or maybe he somehow got the high-resolution publicity photo.
PT: If either is the case, then there’s an infringement of the photograph.

RP: I see the photo in this Daily Mail article is apparently the copyright of Reuters. This seems odd— except for cropping to the right, it looks exactly like the publicity photo to me! Then there’s the Kodak advert, the photo underneath it, and the piece of fruit. This is endless!
PT: This is the thing about copyright and the law— with this act of collaging, unless the copyright has expired on all of the pictures, each element is potentially a copyright infringement claim.