Common Sources

Jack Vettriano’s oil painting, Reach Out and Touch (February/June), 2003, was sold last year for around £35,000. It depicts a rear view of the artist, bespectacled and wearing a white collared shirt and black trousers with forked braces, reaching out with his left hand towards the back of the head of a naked female model standing to his left beside a fireplace, with his right hand behind his back holding a paint brush. This work was first exhibited at London’s Portland Gallery in Spring 2004.

Joe McLaughlin’s oil painting, The Artist (March), 2003, was sold last year for £540. It depicts the same figures in the same composition; save that the model is not wearing a thigh length black stocking on her left leg, the fireplace is a different style and has a small mirror or painting on its mantelpiece. This work was first exhibited at the Paisley Picture Framers and Gallery in spring 2004.

Late in 2004 a widely publicised row blew up between McLaughlin and Vettriano’s gallery, which alleged an ‘unquestionably clear breach of copyright’, following McLaughlin’s website posting of The Artist. McLaughlin refused to comply, on the basis that The Artist had not been copied from Reach Out and Touch; its composition had been taken directly from a photograph by John Swannell which McLaughlin had seen published in a Sunday newspaper magazine in March 2003.

In February 2003, Swannell composed and made a series of photographs at Vettriano’s studio, including the composition in question using a naked female model. Vettriano’s Reach Out and Touch intentionally drew from Swannell’s original photographic composition. As did McLaughlin’s The Artist.

The UK’s copyright legislation, set out in the Copyright Designs and Patents Act 1988, gives copyright to the makers of paintings, so long as they are original artistic works. To pass this legal originality test, it has to be demonstrated that the work in question was produced by ‘independent skill and labour’ – the operative word here being ‘independent’, and the idea being that the shape, form, configuration and composition of the work must not be ‘substantially derived’ (ie taken and effectively ‘copied’) from someone else’s earlier work. In other words, if there appear to be striking visual connections and similarities between two works, it will be presumed that the work made first had been seen and therefore ‘copied’ by the maker of the second work – unless the second artist can show that this was not the case. This legal position seeks to reflect a very practical reality: the chances are extremely remote that two artists – whose works are unbeknown to, and who work completely independently of, each other – could produce substantially the same shapes, forms, configurations and overall composition.

In this case, it appears that both painters, at the same period in 2003, strongly drew upon the same photographic image that had been composed by John Swannell: a common source.

In which case, Swannell would have been the first owner of copyright in his original photographic work, and each painter’s subsequent compositions were appropriations of that original. Arguably, therefore, each painter’s work would not pass the legal originality test, and so neither work generated a copyright for the maker.

On this basis, the assertion on behalf of Vettriano that McLaughlin’s work was ‘unquestionably clear breach of copyright’, would have been wrong. Although it might have been a breach of Swannell’s copyright – as indeed might Vettriano’s work. Were both artists in breach of Swannell’s copyright?

Copyright owners have the exclusive legal right to reproduce, and authorise reproductions of, their original copyright works. It appears that Swannell had direct contact with Vettriano when his original photographic composition was made at the painter’s studio in February 2003, and is likely to have been given some form of authorisation to reproduce the work in Reach Out and Touch; according to his gallery ‘as a result of this visit, when various photographs were taken, Jack embarked on a series of paintings which would have been completed by June of that year’ (the Scotsman, November 10, 2004). According to the Independent newspaper (December 4, 2004), McLaughlin ‘paid Swannell’s agent £117 for artistic reference and produced his painting’. Both artists therefore appear to have been authorised by Swannell the copyright owner to make their respective works; and that neither was in breach of his copyright. This incident now appears to have been resolved by those involved, presumably on this basis.

Using common sources for the making of new – not necessarily original within the meaning of copyright law – artistic works has always been prevalent in the history of art. Manet used the figurative composition in the bottom right-hand corner of Marcantonio Raimondi’s engraving of Raphael’s lost judgement of Paris, 1515, as the central compositional element of his Dejeuner sur I’Herbe, 1863; and numerous artists have used da Vinci’s Mono Lisa, 01504, and other iconic works, over subsequent centuries to date to make their own new works, notably Duchamp in his notorious LH.O.O.Q, 1919, and Warhol (Mona Lisa, 1963). All have been free to do so, because copyright in all those original icons did not exist when the new works were made; which means that any artist is likewise free to do so if a work is not protected by copyright law.

But using images portrayed in a non-copyright work will only create a new copyright for the appropriating artist if the new work passes the UK law’s originality test which requires that the artist paying homage adds substantially more of their own ‘independent skill and labour’ for the viewer to see, than remains to be seen of the original artist’s work. Ponder whether Duchamp’s pencil additions of a moustache and goatee beard to a printed reproduction of Mono Lisa, together with his five French letter acronymic pun as his new title, would have passed the UK’s legal originality test giving him copyright in that seminal 20th century icon.

© Henry Lydiate 2005

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.