Mindfucker, 2009
acrylic and Flasche on brown paper
176 x 260 cms

Rupert Goldsworthy is an artist, writer and curator who has run projects in exhibition spaces in Berlin (1995-96 and 2009-10) and New York (1998-2002). He appropriates images and logos from various sources in his own work, and takes a particular interest in how artists in general re-use images and logos. Moreover, his recent book “CONSUMING//TERROR: Images of the Baader-Meinhof” traces the visual history of the Red Army Faction (the West German terror group) and their logo. I spoke to Rupert about the fascinating issues of originality and copyright which arise for artists, and about his own work.
Goldsworthy’s large multi-sourced paintings on brown packing paper are on show in London throughout August at Ritter/Zamet.

PC-K: How did the idea of “image rights” first emerge?

RG: The concept of copyright began in Europe during the eighteenth century, as the introduction of mass printing and copyright changed social and economic relations in a profound way. The ‘Berne Convention for the Protection of Literary and Artistic Works;’ (1886) began protected ownership over scientific advances and artistic works beyond national borders, thus introducing trans-national copyright. That encouraged broader patterns of control around all visual and verbal signage. There is no actual “international copyright” but “territorial right”. Every nation has its own intellectual property rights legislation which comes into effect.

PC-K: What, then, was the position with image rights ‘pre-internet’, say 25 years ago?

RG: The current version of the Berne Convention gives authors, artists, and musicians – or the companies they work for – the ‘exclusive right’ to reproduce, distribute, and perform their works, or to allow others, usually for a fee, to do so. But a “fair use” clause creates an exception to this monopoly control. It allows anyone to copy, publish, or distribute parts – sometimes even all – of a copyrighted work without permission, for purposes such as commentary, news reporting, education, or scholarship. In court rulings on “fair use”, four main factors are judged: 1. The purpose and character of the new work; 2. The nature of the original work; 3. The amount and substantiality of the original work that was used; and 4. The effect of the new work on the market for the original. That last is the key clause in most copyright discussion.

PC-K: But the position was different in communist countries?

RG: Yes. Communist states did not acknowledge or adopt the transnational laws of the Berne Convention. So until relatively recently the famous image of Che by Cuban photographer Alessandro Korda existed outside copyright. Anyone could use it. This changed in the 1990s. However in capitalist countries, parameters controlling the visual field continue to develop over time. In 1985, in the era before the Internet, these issues of image control were related to geography, visibility, intent, and financial incentive.

PC-K: Has the law changed in general with the coming of the Internet, or just the way it can be applied in practice?

RG: In the Internet era, things become more complex and there is a climate of corporate bullying. Imagery used in the public domain is far easier to access, and harder to track. In a globalized, decentralized mediascape it’s harder to spot or claim plagiarism. Laws around image copyright are more difficult to enact because much depends on visibility and vigilance. In China the whole question of artists and originality is completely unique.

In response to the Web, a wave of new legislation was introduced during the mid-nineties. In the US in 1998, the Sonny Bono Copyright Term Extension Act delayed the date for the public domain for works covered by older fixed term copyright rules, and the Digital Millennium Copyright Act (DMCA) stepped up controls around digital rights management. In 2001 and 2004 respectively the European Union passed directives on “Copyright in the Information society” and “Enforcement of intellectual property rights” which cover some of the same issues.

One recent indication of the ongoing tightening of copyright control is the introduction of increased levels of trademark infringement legislation. Recent U.S. patent laws now include the protection of the use of particular colour combinations, letters and styles in public signage, and so prohibit the use in advertising of imagery or colour-combinations that are deemed too similar to the logos of established brands.

PC-K: I believe some companies, such as McDonalds, take any use of their logo very seriously. What measures do they have in place?

RG: Corporations are more vigilant and more geared to protecting what they consider a commercial identity. McDonalds are legendarily aggressive and sue frequently. In one case “the court’s opinion noted that the prefix “Mc” added to a generic word has acquired secondary meaning, so that in the eyes of the public it means McDonalds, and therefore use of the prefix could infringe on McDonald’s trademarks.” But in trademark law, you always have to discuss whether the customers could have been misled. Another restaurant may not allowed to use the “Mc” mark, but a clothing company could use that prefix.

PC-K: Does this cause problems for artists?

RG: In 2005 New York University’s Brennan Center for Justice issued a status report on copyright laws related to artists in the post-Internet cultural climate, titled Will Fair Use Survive? Free Expression in the Age of Copyright Control. The report notes that artists, writers, historians, and filmmakers are frequently burdened by a “clearance culture” that seeks to make them seek permission and pay high license fees in order to use even small amounts of copyrighted or trademarked material. Large corporations take advantage of the general sense of vagueness around “fair use” by sending cease and desist or take down letters to individuals they feel are infringing on their copyright. The Brennan report cites how in many cases, artists become intimidated by these letters and the threat of legal action. Many surrender without a challenge, even in cases that a fair use argument would likely win out. Many artists don’t know the laws and don’t want to run any risks.

However, there are artists who seem to work with corporate logos without any problems. Daniel Pflumm comes to mind. His work is framed in a very particular way and he is very aware of brand name ownership issues and copyright laws. Artists working with film such as Douglas Gordon and Paul Pfeiffer appropriate from very well-known sources (e.g. Hollywood films, footage of NBA basketball games and boxing), but they are not subject to copyright infringement because they only use the film or video in a particular way, either slowing it down or repeating small bytes, so their work is protected by the “fair use” clause that considers “the amount and substantiality of the portion used in relation to the copyrighted work.

PC-K: Are printed media in a different position from the Internet?

RG: On one level, yes, because taking down an image online is quick and easy. But it depends on the situation, visibility and intent. If the image is professionally printed and then sold, the ruling is more likely to go in favour of the copyright holder.

PC-K:: Given the proliferation of Internet sources, how practical is it for there to be meaningful control?

RG: That’s a difficult question. Online watchdogs currently focus on digital piracy and mass theft of intellectual property, such as music and films copied in China and Russia, rather than on digital imagery or footage used by one individual. The image industry, especially the big stock image companies, are pursuing their rights massively, at least in Germany. There are waves of cease-and-desist sendouts rolling through the country regularly. The fast development and easy use of image-tracking systems like Robust Visible and Invisible Digital watermarking make it affordable for companies.

PC-K:: If someone paints, say, a Starbucks logo freehand or uses a projector, is it a different situation to the same logo taken directly from the Web which is then professionally printed?

RG: The ruling comes down to what is deemed “fair use”. It concerns the intent and impact of this re-use. The medium and context affects the image’s interpretation. You could argue that painting a corporate logo on canvas by hand and displaying it in an art gallery is parodic and critiquing commodity culture and it does not negatively affect the original.

If the re-use is broadly parodic, it is safer. In 1991 photographer Annie Leibowitz sued Paramount Pictures for licensing fees for their parody of her famous Vanity Fair cover image of the nude pregnant Demi Moore. Paramount parodied the image for a poster to advertise the comedy movie Naked Gun 33-1/3rd. Examining the four “fair use” factors, the court found that although Paramount’s photographer drew heavily from Leibovitz’ composition, in light of Paramount’s parodic purpose and absence of market harm the use of the photograph was a fair use. While Leibovitz had argued that she was entitled to licensing revenue from the photograph, the court found that parodies were likely to generate little or no licensing revenue. Paramount won because it didn’t harm her market.

On the other hand Starbucks sued a designer and a Manhattan printing company in 1999 for “trademark infringement, trademark dilution and unfair-competition” for printing T-shirts and stickers using the Starbucks logo with the words “Starbucks Fuck Off” instead of “Starbucks Coffee.” The designer was selling these T-shirts and stickers in stores and generating money. Starbucks sued for $3,000 and settled out of court.

PC-K: So the rulings often come down to financial impact or harm, or the extent or the nature of the use. You mentioned the famous Che image. What is the current position with that?

RG: After the Cold War, left-wing imagery became chic and decidedly less threatening. Since the 1990s, the Korda estate has become increasingly vigilant about what they consider illegitimate or non-acceptable appropriation of Che’s image, due to the increasing commercial use of this iconic Leftist
image, and the image has become embroiled in several high-profile breach of copyright cases. Ironically, control of this “anti-capitalist” sign is now policed by the decidedly capitalist Berne Convention.

The Smirnoff Vodka company appropriated it in 1997 for a British subway advertising campaign. They did this without Korda’s approval or clearance, and were forced to pay his estate $50,000. In a similar case in 2004, Canadian independent filmmaker Bruce LaBruce, was sued for a similar amount by the Korda estate for LaBruce’s use of Che’s image as a backdrop in some scenes of his low-budget, independently-released, gay soft-core art film The Raspberry Reich (2004).

Regarding the Smirnoff court ruling, Korda himself stated in 2004: “As a supporter of the ideals for which Che Guevara died, I am not averse to its reproduction by those who wish to propagate his memory and the cause of social justice throughout the world, but I am categorically against the exploitation of Che’s image for the promotion of products such as alcohol, or for any purpose that denigrates the reputation of Che.”

Korda’s attitude seems to reflect a general consensus. The exploitation of Che’s image in commercial settings disrespects his memory and presents an ethical and legal dichotomy. But should Korda have equated the use of a multinational distillery and that of a low-budget gay art film director?

PC-K: How do you reuse images in your own practice?

RG: I’m not an appropriation artist in the Duchampian sense. My medium is predominantly painting, and I’m interested in mixing signs and in random connections. I collect imagery such as food or medicine package labels in stores, or stickers on the street, and gather printed scraps over time from various places. I also take photographs of signs and monuments. Occasionally I’ll find something off the Web. But I try to change it and recontextualize it. I collage images together in a way that creates a new hybridized image and identity. I’m interested in how languages, different language scripts and designs interact. I sometimes put Chinese characters or Arabic lettering together. I like to juxtapose a range of very different, forms of lettering and languages to disorient the viewer.

You don’t get the whole story, so immediately you start to aestheticize, and interpret on other levels. My aim is to make paintings that are visually satisfying but also contain further threads.

PC-K: What are the combinations in your current show?

RG: Recently I have recently been intrigued by the interesting juxtapositions in the part of Berlin where I live, between the architecture of the 19th Century Prussian military era and the new Moslem design sense now emerging in my neighbourhood, Neukölln and Kreuzberg 36. A lot of my new work is inspired by an interest in the incongruity between the old and new communities, in the history of the location where these communities live, and also in the style, and the juxtaposition – its awkwardness on many levels and also the links between old German baroque rococo design and many new Arabic and Berber design styles in this area. People talk about Berlin being one of the most interesting cities in the world right now. I would say that this mix is one of the key aspects contributing to that.

I am interested in the awkward disconnects of contemporary Berlin. Paintings such as “Mindfucker” and “Leather Angel” try to subliminally lay out some pointers linking the masculinist culture of Fundamentalist Islam and that of past German military history.

PC-K: Could you describe how that works?

RG: The “Mindfucker” painting is of a military memorial and the reference at the top is to the “Heldentod” (hero’s death) of 41 German soldiers from one regiment in “German” S. W. Africa from 1904-6. Wreaths are still annually laid at that monument. For some they still remain “heroes.” No acknowledgement is made concerning slavery and colonial land rape.

In “Leather Angel” I was thinking about in how someone somewhere might one day try to hijack history and propose that there had also been a militant gay movement in Islamic countries during the international student riots of May 1968.

PC-K: You have painted them on a large scale, and on brown packing paper. Why is that?

RG: I like the tactile qualities of packing paper and its ruggedness. I like the excessiveness of the size. These are blueprint plans for possible murals. A work at this scale on paper feels relaxed and intimate in a way that canvas doesn’t. I wanted the works to live and breathe on their own terms, to feel expansive, not cramped.

PC-K: You also use some unusual types of paint?

RG: I like my paintings to look slightly dated. I use a type of paint called Flasche (similar to gouache) used by commercial sign-painters in the 1940s and 1950s. It’s liquid nylon. I sometimes use gloss house paint. I’m reproducing mass-produced signage, so these materials work well for the kind of effects I want.

PC-K: Finally, can you say something about your new book?

RG: “CONSUMING//TERROR: Images of the Baader-Meinhof” traces the visual history of the Red Army Faction (the West German terror group) and their logo. One of the main themes of the book is: How do “outlaw” or terrorist signs establish themselves and operate as a heretical category amid a closely administered, legitimated, forest of signs?

The use of the Fed Ex logo is tightly controlled, and appropriating or misusing it, incurs a fine for theft of intellectual property. A claim of trademark infringement is submitted by Fed Ex, a fine is meted out by the state’s legal system, and the offending visual is withdrawn from public display. However, the appropriation of an “outlaw” sign such as the RAF’s red star logo, the Black Panther logo, or for that matter, the Hell’s Angels biker gang colours, creates a different kind of uneasiness, because another kind of social control surrounds these signs. Although the state or certain social groups may outlaw such signs at a certain time or place, no clear written ruling controls their use in other settings. Like many other culturally-indeterminate symbols, they are unprotected by legal means, but exist as loaded cultural markers. They exist as signs outside the state’s law. But they still have specific understandings and connotations around their public use. Tracing the history and re-use of this terror logo over time is one focus of the book.