"3. Appropriating from Multiple Sources
A variation of the Warhol case involved the Russian painter George Pusenkoff who used the
outline of a nude from a Helmut Newton photograph, a distinctive bright blue background from a
Yves Klein’s monochromatic painting, and a small yellow square from the late Russian artist Malevich.
58 Neither Klein nor Malevich objected to Pusenkoff’s borrowing. Nor could they because the
color blue and a yellow square are part of the public domain. Newton, however, objected to the use
of his photograph and sought to have the painting destroyed. In Pusenkoff’s defense, he created a
unique work not multiple copies, borrowed only the outline of a photograph not the entire photograph,
and transformed the photograph by adding public domain material and altering the medium.
On the other hand, he clearly copied Newton’s well-known image without paying for it. Indeed his
purpose was to copy recognizable elements from other artists. His game “is to make canvases buzz
with cultural associations by ‘quoting’ from other artists—a perfectly respectable post-modernist
approach to picture-making.”59
A German court held that Pusenkoff’s painting was a free adaptation rather than a reworking
and, therefore, did not infringe Newton’s copyright.60 From an economic standpoint, this is the right
result. Pusenkoff’s “free adaption” was a productive or transformative use that does not substitute
for the original photograph. To be sure, Newton might have given up a small licensing fee but that
seems outweighed by the lower access and licensing costs. Had Pusenkoff created posters and other
merchandise rather than a unique work, the outcome might well be different. Then, potential lost
licensing revenues become more significant. Moreover, there would be no important difference between
Pusenkoff’s activity and that of a commercial artist or business incorporating pre-existing
copyrighted images into a product for wide distribution. The intermediate position—a limited edition
series of prints—is the more difficult case to resolve. Like the Warhol example above, fair use should
turn on whether the savings in access costs more than offset any small negative effects on the incentives
of commercial photographers and publishers.
The Pusenkoff example raises another issue. Transaction costs are likely to be large if the law
required the artist to obtain permission to appropriate from multiple sources. Other things being the
same, this implies that the law should be more sympathetic to the artist whose work borrows from
multiple copyrighted sources."
Indeed. This again cements my position. I am appropriating, but not breaking laws.