Judges tend to focus on “the degree of transformation and the nature of transformation” from one iteration of a work to the next, she said. In the case of the Obama photo, there were at least two transformations. First, from Schorr’s photograph to Mesfin’s design—“it’s a judgment call,” Sandeen says, “But there was transformation there. It completely changed, I would argue, the original image, and made it different.”—and then, from Mesfin’s design to Devins’s mural.
“Taking the Instagram to the wall, that is more problematic in my opinion,” Sandeen said. “But I’m not going to say changing the medium isn’t an argument.”
An argument, yes, but not always an effective one. The artist Jeff Koons unsuccessfully used similar logic before a French court, which recently decided his 1988 porcelain sculpture of two naked children was copied from a 1975 postcard featuring a photograph by Jean-François Bauret. Judges ordered Koons and Centre Pompidou, which exhibited a photograph of the Koons sculpture, to pay the equivalent of about $50,000 in damages.
In the United States, the artist Richard Prince held an art installation composed of other people’s instagram photos—printed and blown up, along with his comments on them. “The biggest modifications to the images,” Lizzie Plaugic wrote for The Verge in 2015, “are the slightly sleazy comments Prince leaves under the photos. Under one of [the musician Sky Ferreira] in a red car: ‘Enjoyed the ride today. Let's do it again. Richard.’”
“It’s fascinating,” Sandeen told me. “I was at the Broad, in Los Angeles recently, and they actually had one of his works that was more original, and they had this description of him about how he’s challenging traditional notions of IP law. I thought it was hilarious because was that really the purpose of his art? To create case law? Or was he just lazy?”
“I think that as a society we have weird feelings about visual arts,” says Robinson, the Minipops creator. “Lots of people say they wish they could draw, and lots of people get outraged when the price of a logo is made public.”
At least 18 artists have complained that the retail Zara stole their designs, according the artists Tuesday Bassen and Adam J. Kurtz who launched a website aimed at cataloguing the alleged theft. Zara’s response, Kurtz says on the site, was “particularly offensive.”
It’s “very hard to see how a significant part of the population anywhere in the world would associate [these designs] with Tuesday Bassen,” Zara said in a letter Bassen shared online. “Zara’s lawyers are literally saying I have no base because I’m an indie artist and they're a major corporation,” Bassen wrote in a tweet.