Spencer Tunick
A 2005 photograph by Spencer Tunick.
By MIA FINEMAN
The New York Times
Published: July 13, 2008
IN February 2007 the Swiss-American artist Christian Marclay was installing a solo exhibition of his work in Paris when he received an e-mail message from a friend about a commercial for the Apple iPhone that had been broadcast during the Academy Awards show.
The 30-second spot featured a rapid-fire montage of clips from television shows and Hollywood films of actors and cartoon characters — including Lucille Ball, Humphrey Bogart, Dustin Hoffman and Betty Rubble — picking up the telephone and saying “Hello.” It ended with a shot of the soon-to-be-released iPhone.
Mr. Marclay tracked down the ad on YouTube and watched it.
“I was very surprised,” he said recently by phone from London. Like many in the art world he saw an uncanny resemblance between the iPhone commercial and his own 1995 video “Telephones,” which opens with a similar montage of film clips showing actors answering the phone. That seven-and-a-half-minute video, one of Mr. Marclay’s signature works, has been exhibited widely throughout Europe and the United States.
About a year before, Mr. Marclay said, Apple had approached the Paula Cooper Gallery, which represents his work in New York, about using “Telephones” in an advertisement.
“I told them I didn’t want to do it,” he said. His main concern, he said, was that “advertisers on that scale have so much power and visibility” and that “everyone would think of my video as the Apple iPhone ad.”
Mr. Marclay said he spoke with a lawyer after learning of the commercial but decided not to pursue legal action. “When people with that much power and money copy you, there’s not much you can do,” he said.
In any case he did not want a controversy to draw attention to his own appropriations of scenes from other sources — mostly Hollywood movies — without permission from the copyright holders.
“I don’t consider what I do stealing,” Mr. Marclay said. “I’m quoting cultural references that everyone is familiar with. I make art that reflects the culture I live in.” And unlike advertisers, he said, “I’m not trying to sell phones.”
Contacted by telephone and e-mail, neither Apple nor its advertising agency, TBWA/Chiat/Day, would comment on the iPhone ad for this article.
Artists have been appropriating images from Madison Avenue for decades. In the 1960s Andy Warhol made silk-screened copies of Brillo boxes and Campbell’s soup cans. In the 1980s Richard Prince rephotographed magazine ads for Marlboro cigarettes, enlarged the pictures and exhibited them as his own. Works like these are comments on consumer culture that also challenge the idea of originality itself.
But what happens when the tables are turned? In recent years a number of advertising campaigns have seemed to draw their inspiration directly from high-profile works of contemporary art. And the artists who believe their images and ideas have been appropriated are not happy about it.
Donn Zaretsky, a lawyer in New York who specializes in art law, is often approached by artists who perceive echoes of their own work in advertisements. “It does seem like advertising people are pushing the envelope on this,” he said. “They’re being more and more brazen in their borrowing. On the one hand they should be mining the art world for inspiration, and you would expect them to be referencing works that people are familiar with. But more and more they seem to be getting into the territory of blatant rip-offs.”
The law governing the unauthorized use of copyrighted images and ideas, he said, is notoriously murky. “Copyright law doesn’t protect ideas, it only protects expression. The question is, where do you draw the line? Is the agency being inspired by the idea? Or did they copy the artist’s expression?”
When artists go after advertisers in such cases, the disputes are most often settled out of court. But there have been a few notable cases in which artists successfully sued advertisers for copyright infringement.
In 1987 a federal court granted summary judgment to the artist Saul Steinberg, who claimed that a poster for the Columbia Pictures film “Moscow on the Hudson” copied his famous New Yorker cover “View of the World From 9th Avenue.” (Like Steinberg’s drawing, the poster had a detailed rendering of four Manhattan city blocks in the foreground and a sketchy view of the rest of the world in the background.)
In May 2007 a French judge ordered the fashion designer John Galliano to pay 200,000 euros, or about $270,000, to the photographer William Klein in a dispute over a series of magazine ads that mimicked Mr. Klein’s technique of painting bright strokes of color on enlarged contact sheets.
Recently Mr. Zaretsky was approached by the artist Spencer Tunick, who is known for his photographs of large installations of naked people in public places around the world. Mr. Tunick was concerned about a television commercial for Vaseline shown in Europe and the United States in 2007.
The 60-second spot, called “Sea of Skin,” features large groups of naked men and women posed in artful configurations in various outdoor settings. They stand and sway in a forest, sit on a concrete rooftop, bounce gently in a glacial lake and wave their arms on a city street.
“There was such a close resemblance to my work that it was uncanny,” Mr. Tunick said in an interview. “When I saw the ad, I thought it was definitely inspired by my photographs and videos of installations.”
Was it? Not according to Kevin Roddy, the executive creative director at Bartle Bogle Hegarty in New York, who developed the commercial for Vaseline’s parent company, Unilever.
“I’m familiar with Spencer’s work,” Mr. Roddy said, “but I can’t say that was an influence at all. Spencer is about masses of people and nudity. We’re about representing the functionality of skin. Sure, it’s hundreds of thousands of bodies, but they’re meant to represent one thing: skin.”
Mr. Tunick said he had not decided whether to pursue legal action.
In some cases artists who see variations on their own images may be victims of their own popular success.
In the late 1990s there were several well-publicized disputes in which young British art stars accused advertisers of pilfering their ideas. The conflicts arose around the time the so-called Young British Artists, or Y.B.A.’s, were featured in “Sensation,” a 1997 London exhibition of contemporary art from the collection of the British advertising mogul Charles Saatchi that later traveled to Berlin and New York.
In 1998 one of those artists, Gillian Wearing, complained that a Volkswagen commercial featuring people holding handwritten signs had copied the style and idea of her series of photographs titled “Signs that say what you want them to say and not signs that say what someone else wants you to say” (1992-93).
For her series Ms. Wearing photographed people on the street holding paper signs on which they had written brief statements describing their feelings or states of mind. In the best-known image a smirking young man in a business suit holds a sign that reads, “I’m desperate.” Similarly the Volkswagen ad includes a shot of a tough-looking security guard who holds a sign bearing the word “sensitive.” Ms. Wearing did not pursue legal action.
The following year Damien Hirst threatened to sue British Airways over a billboard for its low-cost subsidiary Go that featured a grid of colored dots. Mr. Hirst claimed that the design was based on his paintings of grids of colored dots against white backgrounds. At the time a spokesman for Mr. Hirst told the newspaper The Independent that he had discussed licensing his dot paintings to British Airways, but that the deal had fallen through.
Advertisers have traditionally tapped into the cultural cachet of fine art by commissioning works for hire. From 1950 to 1975 a Chicago company, the Container Corporation of America, commissioned dozens of artists — including Fernand Léger, René Magritte and Willem de Kooning — to create paintings that were reproduced in print ads that ran in upscale magazines like Fortune.
In 1985 Absolut vodka began its famous magazine ad campaign featuring variations on the distinctive shape of its bottle, executed by hundreds of contemporary artists, among them Andy Warhol, Keith Haring and Lisa Yuskavage.
But plenty of other artists have staunchly resisted agencies’ requests to license their work.
Mr. Tunick said he had been asked to work on campaigns for Dove, Lipton, Microsoft and Blue Cross Blue Shield, among others. “I think I get two e-mails a week from ad executives or publicists who want to use my work, and I always tell them I’m not an advertising photographer,” he said.
The Swiss artists Peter Fischli and David Weiss have turned down numerous requests from ad agencies interested in licensing their award-winning 30-minute short film, “Der Lauf der Dinge” (“The Way Things Go”). Produced in 1987, it follows a Rube Goldberg-style chain reaction in which everyday objects like string, balloons, buckets and tires are propelled by means of fire, pouring liquids and gravity.
Yet in April 2003 Honda ran a two-minute television commercial, “Cog,” in which various parts of a car — tires, seats, windshield wipers — form a dominolike chain reaction that culminates when an Accord rolls down a ramp as a voice-over (read by Garrison Keillor) intones, “Isn’t it great when things just work?”
At the time Mr. Fischli told Creative Review magazine: “We’ve been getting a lot of mail saying, ‘Oh, you’ve sold the idea to Honda.’ We don’t want people to think this. We made ‘Der Lauf der Dinge’ for consumption as art.”
In a strange twist the Honda “Cog” ad, which was developed by Wieden & Kennedy, has inspired several parodies of its own, including commercials for BBC Radio and the British directory assistance service 118. The chain reaction of creative influence, imitation and homage was the focus of a panel discussion at the Tate Modern in London during a retrospective of Mr. Fischli and Mr. Weiss’s work there in 2006.
In an age when sampling and appropriation have become widespread practices in contemporary art and in the culture at large, some find it paradoxical that artists are now guarding their own creations more vigilantly.
Michael Lobel, a professor of 20th-century art at Purchase College who has written about Roy Lichtenstein and Richard Prince, said the easy availability of digital images on the Web had helped foster this defensiveness.
“There’s a broader consciousness among artists about owning their work and keeping tight control over its distribution,” he said. “The more available images have become, the more of a countermovement there is to clamp down on them.”
Mr. Lobel said that while he sympathizes with artists who believe their work has been copied, they also need to recognize their own reliance on existing images. “Culture is about ongoing borrowing,” he said. “It’s about taking images, ideas and motifs and opening them up to new uses.”
The cycle of influence goes round and round: Ad agencies borrow from artists who borrow from advertising. Isn’t it great when things just work?
