Fair use or plagiarism? A new appropriation dispute

Top: Hank Willis Thomas' photo 

Bottom: Graeme Williams’ work

Appropriation art and copyright have not always been best friends. Now, a new dispute may lie on the horizon, as Angela Saltarelli (Chiomenti) explains.

Here's what Angela writes:

South African photographer Graeme Williams was astounded to discover that a whited-out version of one of his famous photographs was recently exhibited during the last Johannesburg art fair by the Goodman Gallery.  

Hank Willis Thomas - an appropriation artist using images of advertising campaigns or of civil rights protests -  realized a black and white version of Williams’ coloured photograph taken in 1991, in Thokoza township in Johannesburg, without asking for any authorization to the author of said photograph.

The original photograph represents one of the symbol of the end of apartheid: a group of children were portrayed taunting some white policemen few weeks after the release from prison of Nelson Mandela, kicking up their legs in a playful adaptation of the toyi-toyi, the south African liberation movement march. The iconic nature of this photograph is recognized anywhere and was also used by Barack Obama during his 2008 political campaign.

Williams claims that Thomas’ derivative work constitutes plagiarism, as there are minimal differences between the two works: the new image is black and white, and the policemen are lightened so that they can be seen by the public only when standing directly in front of the work. Moreover, the new work would not have a different meaning compared to his photograph, the use would be only appropriative rather than transformative.

On the other side, Thomas has defended his piece raising questions on the ownership of Williams’ work, which was taken by the south African photographer without any authorization by the people depicted, implying that even these people were exploited by Williams without consent. Furthermore, Thomas said he was interested with this artwork in questioning how much an artist shall change a work to create a new original work of art and in exploring this grey area of copyright.

Finally, the Goodman Gallery has declared not to be able to determine whether the new work is sufficiently transformative or not. In any case, Thomas’ work was removed from display and the artist agreed not to show it any more in public, offering Williams to keep it for one year and to discuss about it after this period.

Williams refused to take Thomas’ work, finding all proposed amicable solutions unsatisfactory, considering that the price for Thomas’ piece was $36,000, whereas his photograph was never sold for more than $1,200.

If this dispute was brought to court, the outcome would be quite uncertain as the criteria on determining fair use were often subject to different interpretations by the courts as shown in recent cases as: Cariou vs Prince, Graham vs Prince or Bauret vs Koons.