1709 Blog: for all the copyright community

Thursday, 14 April 2016

Self-Portraits of Robert Mapplethorpe? Portraits of Robert Mapplethorpe?

On April 6, 2016, artist and photographer James Miller, professionally known as Bobby Miller, filed a copyright infringement suit against The Robert Mapplethorpe Foundation (RMF), Sean Kelly Gallery, Skarstedt Gallery, the Guggenheim Foundation and the Whitney Museum. The case is Miller v. The Mapplethorpe Foundation, 16-CV-2510.

Mr. Miller is a photographer, writer, performance poet, actor and is also a make-up artist. He has published several books of his photographs and his works have been exhibited in the U.S. Robert Mapplethorpe was a renowned photographer in the Seventies and Eighties before his death in 1989. His work is still regularly shown around the world.

Source: The Robert Mapplethorpe Foundation 
Miller alleges that he is the author of four of Mapplethorpe’s photographs. Picture it, New York, 1979. Miller spent the evening of November 22 with Mapplethorpe in his loft on Bond Street, in downtown Manhattan, along with a friend. Miller interviewed Mapplethorpe and recorded the interview. After the three men had dinner outside, they came back to the loft. Miller then persuaded Mapplethorpe to let him put feminine make-up and accessories on him and to style Mapplethorpe’s hair, so he would look like a woman. According to the complaint, Miller then took several pictures of Mapplethorpe dressed and made-up by Miller, in Mapplethorpe’s studio, after Miller adjusted the lighting himself. Miller left Mapplethorpe’s studio without taking the roll of film. Instead, Mapplethorpe told him he would develop it and send him the pictures, but he never did so.

Miller alleges that Mapplethorpe later presented himself as the author of these photographs, as self-portraits. They are Self Portrait, 1980, Self Portrait, 1980, Self Portrait, 1980, and Self-Portrait, 1980. They became quite famous and have been shown in several shows and exhibitions, such as the 2013 show Self Portraits organized by Defendant Skarstedt Gallery and the Robert Mapplethorpe Saints and Sinners exhibition organized by Defendant Sean Kelly Gallery.

Miller alleges that he has informed defendant RMF “several times” that the photographs were authored by him and not by Mapplethorpe, and claims that RMF has infringed his exclusive rights to reproduce, display and distribute the images. Miller also alleges that Sean Kelly Gallery infringed his exclusive right to display the images, that Defendant Skarstedt Gallery infringed his exclusive rights to distribute and to display the images, and that RMF contributorily and vicariously contributed to the alleged copyright infringement by Skarstedt Gallery and Sean Kelly Gallery. Miller also alleges that both the Guggenheim Museum and the Whitney Museum infringed his exclusive right to display his works.

Plaintiff is claiming that he should recover not less than 25 million dollars from RMF for copyright infringement, not less than 20 million for vicarious and contributory infringement, not less than 10 million dollars in damages from Sean Kelly Gallery and not less than 10 million dollars in damages from Skarstedt Gallery (yep, you read that right). Damages from The Guggenheim Museum and the Whitney Museum are to be awarded at trial.

Miller is also asking the court to declare that he is the author of the photographs and thus owns their copyrights, and to cancel any other copyright registration for them. Miller registered the copyright for these four images in March 2016. The basis for registration is listed as “unpublished collection.” Indeed, Miller claims that he has not published the images at stake. The court is also asked to order the delivery to Miller of all copies of these images and all media containing these images.

The main question, of course, is how Miller will prove that he is indeed the author of the photographs. If he is able to prove his allegations, he is the author, as he styled the photos and adjusted the lightning. Mapplethorpe created several Self Portraits during his too-short career, but the four pictures at stake are the only ones where he appeared made-up as a woman. This mere fact is not enough. Was Miller able to secure the testimony of the other man who was with them on November 22, 1979?

Also, the timing of the filing is puzzling, as Mapplethorpe died almost thirty years ago, and his work is still highly-regarded. He has not been out of the public eye since he became famous in the mid-Seventies. The exhibitions organized by the two galleries which are named as defendants in this case occurred in 2013 and 2014, in New York City, not too far away from where Miller lives, in Cape Cod. So, what gives? Did Miller find a proof of his authorship after all these years, make it decades? Stay tuned…

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