Matt Herriot

Matt Herriot is a senior at Yale University studying Art History and Art. He grew up in London, England and is a big West Ham United F.C fan. Matt is inspired by other paintings, particularly the process by which they are made. He first looks at the composition, and then delves deeper into the process the artist used to make the composition. He then likes to incorporate those techniques into his own art. Matt is notable for his portrait of American musician, Jessie J, and a portrait of a friend that now hangs proudly in Branford College at Yale University. Once Matt graduates, he hopes to obtain a Masters of Fine Arts and pursue a career as an artist. For more information, please visit his instagram page @herriot_art.

Discussion Debrief

I sat down with Matt to discuss his art, intellectual property as it related to him, and answer any questions he may have. Matt is pursuing a career as an artist. Matt takes art very seriously, and has managed to sell some of his works. He was commissioned by Jessie J to paint a portrait of her and he also has some of his works hanging up at Yale University. Where Marielena Rodas is a small artist who has yet to go commercial and has no intentions to do so for now, Matt has found a bit of commercial success. Thus, our discussion on intellectual property may be helpful for small artists who are seriously considering pursuing a commercial career out of their art. 

Matt’s medium is paint, currently. Thus, the most relevant intellectual property tools for him are copyright, fair use, and moral rights. As I did in Marielena’s profile, I started off with a broad overview of what these topics are. Copyright was established through the ‘Copyright Clause’ in the Constitution, otherwise known as Article 1 Section 8 | Clause 8. It states that

“[The Congress shall have power] ‘To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’”

fairuse.stanford.edu

This right includes the right to reproduce their work or create derivative works. Copyright protection, however, does not extend to ideas or processes, only the expression of those ideas. Because the ultimate goal of copyright is societal benefit – hence the ‘limited times’ part with copyright protection lasting for the length of the authors’ life plus 70 years – copyright law has evolved to protect secondary works when it is fair. This is known as the Fair Use doctrine. In 17 U.S.C. § 107,

“…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

17 U.S.C. § 107

There are 4 factors to consider when determining Fair Use: the purpose and character of the secondary use (is it critical, educational, or for nonprofit use? Is it transformative?), the nature of the copyrighted work (is it unpublished?), the amount and substantiality (is the selection and quantity reasonable?), and effect on the market (does it hurt the market value of the original work?). Another important tool in an artist’s legal toolkit is moral rights through the VARA act. Under 17 U.S.C. § 106A (VARA), author’s have the exclusive right to

“to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

17 U.S.C. § 106A

Fair Use – An affirmative defense and the Transformative Aspect

Matt’s first response to hearing all of this was to ask me about a scenario he’s been thinking about. Matt and a friend thought that a cool new art concept would be to photograph themselves next to a famous work of art. He wondered whether the photographs would be the photographer’s property, or whether it would belong to the artist of the famous work being photographed. This, to me, is a Fair Use issue.

Assuming that the famous works of art are still valid for copyright protection – remember that copyright protection only lasts for an author’s life plus 70 years – then this is a Fair Use issue. Otherwise, the famous work of art has entered into the public domain and the photographer is free to pursue this artistic style. Now onto the issue at hand. Obviously, the photographer is using famous works of art in their photos. It has somehow become integral to expressing their message in the photograph. There is no denying that the photographer is copying the paintings and infringing on the artists’ right to reproduce their work and creative derivative works like this. The photographer can mount a Fair Use defense, which is an affirmative defense. The photographer must acknowledge that he is guilty of copyright infringement, but for a fair and justified reason. To prove Fair Use, the photographer will have to persuade the courts through an analysis of the 4 factors. Certain factors outweigh the others; oftentimes, Factor 1: purpose and character of the secondary use outweighs the other factors. Essentially, the more transformative the secondary use is, the less factors like amount used and market effect will have on Fair Use determination. Take for example Andy Worhol’s orange painting of Prince. Warhol painted the portrait based on Lynn Goldsmith’s photograph of Prince. Through Warhol’s alterations, adding color to something previously dull, the courts deemed it transformative and thus warranting Fair Use. Courts have been known to view certain arts as Fair Use based on the aesthetic value of it, the popularity or fame of the artist, or simply because the art is respected and established. Think of Cariou v. Prince when Prince took a photograph of Cariou, added a purple guitar and large eyes to the painting. Prince himself said there was no greater meaning or intention for doing this, yet the courts believed it to be substantially transformative and thus Fair Use. Maybe the courts liked Prince, maybe they liked the new photograph, either way, these cases can come down to value judgements by the court. 

Therefore, in Matt’s case, the more transformative the painting is, the more they can claim Fair Use and make the photographs their property. The photographer has displayed the famous works of art prominently in the photograph, and with such a substantial amount of copying, the photographer should aim to have some kind of greater message or meaning for this – some kind of commentary or critique.

Moral Rights and the First Sale Doctrine

We then talked about moral rights. Matt thought it was an interesting concept, and went on to tell me about a graphite drawing by William de Kooning. Someone had purchased the drawing and erased the whole thing. The purchaser presented the blank paper as a new work of art, for some kind of statement. My visceral reaction upon hearing this was sadness. How could someone deface and erase someone’s work? What kind of baseless statement was this person making? Matt explained that at that time, and in art in general, making statements and things that haven’t been done before is part of art. Something that pushes the boundaries of art is art, because that is one of the characteristics of art. What the person did was novel and groundbreaking, and thus the action was less egregious than maybe the next person who does it. To Matt, this isn’t a violation of moral rights; it is necessary to artistic expression.  Moral rights is interesting because it essentially goes against the First Sale Doctrine. According to the First Sale Doctrine established in Kirtsaeng v. John Wiley & Sons, the purchaser of a copy is entitled to sell or dispose of the copy without permission of the copyright owner. Moral rights, through VARA, acknowledges that the creator of the art is entitled to certain rights, irrespective of commercial transfers. It is only through a contract clause can VARA rights be terminated, but if not, the artist has the right to prevent the destruction or mutilation of their piece. Thus, we must ask ourselves whether the artist, de Kooning has a right to prevent the destruction or whether the purchaser has the right to destroy it in the name of art. Like with most things in intellectual property, there is a fine line between art and destruction/copying. It is difficult to determine, and is case-by-case dependent.

Fair Use – is it worth it?

When I asked Matt if he had any questions for me, he asked for my advice with a dilemma he had. Matt’s studio is in London. After his Spring semester at Yale ends, he wants to go back home and paint his studio. All the paintings in the studio are his, except for one painting that he bought from another artist that he displayed on the wall. The painting is by an artist named Taylor O. Thomas. Matt wants to paint his studio, but he was worried about any copyright violations that may arise from incorporating Thomas’ painting into his. He is thinking about swapping the painting out for one of his own, but he believes that the Thomas painting adds aesthetic value, is a good spot, and maintains the integrity of the studio he is trying to capture. 

This is a classic Fair Use issue, one that is a bit complicated. Here is my advice to Matt. Matt has good grounds for a Fair Use defense. Like we talked about earlier in our conversation, Fair Use is an affirmative defense, so going down this route would mean that he is admitting to copyright infringement, but for a good reason. If he loses, he would be admitting copyright infringement. This route is undoubtedly complicated, with a lot of time, effort, and money spent on legal fees to prove Fair Use. Given the risks and the difficulties, Matt is better off asking Thomas for permission to use their painting in his painting of the studio. Thomas may be flattered and say yes, or not think it’s a big deal since it is only a small part of the overall painting. Either way, getting permission from the copyright holder is the key to avoiding any copyright infringement claims. Most copyright cases arise because no permission was granted, probably because the infringer didn’t ask in the first place. The violation that comes with someone copying your work is understandable, and is what could lead an artist to pursue a copyright claim when they may not have done so if the copier simply asked. Matt told me about a time early in his career when he used to make paintings from photographs, and would simply message the photographer on Facebook to ask for permission to do so. He didn’t know what legal forces were at play – like copyright– but he knew he ought to get permission. The photographers gave their permission quickly and easily. This just goes to show, when in doubt, just ask for permission. The art world, especially amongst small artists, is very collaborative. As long as that collaborative spirit is respected and appreciated, most likely other artists are willing to share and help. Now, if Thomas says no, then I would suggest that Matt swap out the painting for one of his own since it doesn’t change much in terms of the final painting. 

If Matt is truly so set on using the Thomas painting, either without permission or having not asked for it in the first place, then mounting a good Fair Use defense is key. Like we talked about before, he must examine the 4 factors of Fair Use, but the more transformative the painting is, the better.

Art is theft

Delving deeper into the collaborative aspect of art, Matt thinks copying and sharing is essential to art. Matt recalls this quote by Picasso, “good artists copy, great artists steal.” I dwelled on that quote for a bit, and realized that it means that good artists copy from each other and draw inspiration from that, but it takes a truly remarkable artist to steal those ideas and make it so unique they become famous for it. There were a lot of good impressionist painters, but none were like Monet. 

This reminds me of the transformative aspect of Fair Use and copyright. The courts have essentially put Picasso’s words into law. They understand that artists will copy each other, and they may or may not win their copyright cases, but only the truly great artists will steal it and transform it such that it becomes something remarkable in and of itself. 

Maybe something to think about here is whether we should be so concerned with copyright in the first place. Instead of thinking about copying in such a negative light, it can be seen as productive, flattering, and a way to make something live on.

Forgeries

After talking about how theft, copying, and collaboration are all a part of art, Matt started talking about fake paintings. Matt cited Fake Mona Lisa paintings that are selling for a lot of money on auction sites. During Leonardo da Vinci’s time, there were several forgeries circulating. Now, these forgeries have been identified as such, but they are famous in their own right because of their history and how old they are. Mona Lisa fakes today aren’t remarkable, but these are because of how they have their own story to tell separate from their original. 

Nevertheless, these are forgeries, which are different from copyright. Forgeries are just fraud. It is trying to pass off something as someone else’s. This makes it different from an artist who copies another art or incorporates it into their own.

Matt’s Inspiration

After a lengthy conversation about intellectual property, I wanted to take a step back and talk to Matt about what inspires him and his art. Matt talked about how he gets inspired by other paintings, particularly how they are composed. He pays attention to how artists put things together step-by-step. To him, the process is more fascinating than the actual composition because it eventually creates the composition. Focusing on the process forces him to delve deeper. This fascination is reflected in Matt’s own work. Matt told me about a still-life painting by Matisse. It had only one orange in it, and it got Matt to thinking about how Matisse made it. He then looked at the overall painting and marveled at how Matisse made the brushstrokes visible so that the viewer could see every mark he made. The painting looked fresh; Matisse didn’t correct anything nor did he fuss over the details. Inspired, Matt got to work in his studio. He actually decided to paint his studio. Like the orange in the Matisse, Matt painted an orange book. After finishing, he viewed the painting as a representation of the studio; it is just a sequence of brush strokes that happen to portray the studio. To him, most paintings are just a painting that turns into a picture. It is still a painting in and of itself, but it is very different from reality. Matt is amazed by how small changes – whether that be a brushstroke or an artistic decision – can lead to big differences in how it turns out. 

I can see how Matt’s inspirations shape his copyright perspective. While no one, not even Matisse, can copyright a process, the principle remains. Artists take inspiration from one another. The aim is not to copy, but to learn from each other and make something unique on your own. Good artists copy and make mediocre works, but great artists steal and make something truly memorable.

Matt’s Reflections

After reflecting on our entire conversation, Matt had one last thing to say about Moral rights. Moral rights may be helpful for society, but not really the painting. Moral rights can either protect art, or prevent new art from being made. Either way, it depends on the artist. Take Robert Erwin for example. He made paintings that were minimalistic but took him a long time to make because of all the dots on it. It was put on display in Brazil or something, and people came and vandalized the paintings. Obviously, vandalism is against the law, but it could also be a violation of moral rights. Robert Erwin was mortified because the vandalism essentially wiped out years from his life. He was saddened to know that they aren’t around anymore. 

To artists like Erwin, vandalism and destruction of art is seen as a fundamental loss. To artists like Matt, it is a single loss. Matt has a very relaxed attitude because he knows he has other paintings if one were to get stolen. He understands that it may be a unique stance, but he would not mind if some were destroyed as long as others remain. 

This is pretty much the epitome of the intellectual property regime. Issues such as copying or destruction are pretty much artist dependent, and also court dependent. It is hard to have a uniform way of evaluating things when everyone has a different outlook on art and make different artistic judgements. This is why we get court biases towards more traditional mediums and arts. The most important thing to know is where you stand in the intellectual property regime, to understand that others may have a different stance, and when in doubt, get permission.