This Steampunk Ant is Transformative

A few months ago, an artist who traced my photograph in the L.A. Times prompted a heated discussion: was the artist?s work sufficiently transformative to count as Fair Use under U.S. copyright law? Some copying of protected works may be allowed if the character or purpose of the copy significantly transforms the work in a qualitative way. I felt the case, a simple tracing of my photograph to a different medium, was more copy than transformation.

I was left to wonder, though, what sort of derivation I might consider fair.?I am pleased to have discovered just such an example. Here is Robert Bowen?s ?The Industrious Ant?:

"The Industrious Ant" (2012) acrylic on panel, by Robert Bowen.

Compare to my original:

Solenopsis invicta (2007) photograph of an ant, with a camera, by me.

Mr. Bowen?s painting is unmistakably taken from my photograph. What?s more, the ant parts are more faithful in color and detail than the earlier sketch to which I objected. Yet, I?m fine with this steampunk adaptation.

My photo is a technical illustration of a particular caste of fire ant. When the image is copied for similar ends- to serve an illustrative function- I am more likely to judge the copy as unacceptably infringing than when the image is altered to make a cultural statement or form an artistic argument. In the first case, the copy could be seen as competing with mine; in the second, the copy springboards from it. In my view, Mr. Bowen has transformed my fire ant past the point where I have the right to tell him to stuff it.

In practice, though, ?transformative? is an ill-defined concept. Its properties are determined in what seems an ad hoc, case-by-case basis by the judicial system. In other words, to determine the legal validity of my opinion I would?have to sue Mr. Bowen and wait for the court to weigh in.

While the litigious approach would be as much fun as a barrel of lawyers, I will instead limit myself to pointing out that Mr. Bowen?s new show, Unnatural Selection, opens December 8th at ZeroFriends in Oakland, CA. I wish I lived closer. The paintings look awesome.

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