Artist Annoyed At Madonna Using His Work With No Credit Under ‘Fair Use’

Dec 19, 2015

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

Artist Annoyed At Madonna Using His Work With No Credit Under ‘Fair Use’

Dec 19, 2015

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

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As artists, we find the ‘Fair Use’ doctrine to sometimes be beneficial, but sometimes to be extremely disturbing. I guess illustrator Danny Quirk subscribes to the latter according to a post he made concerning Madonna using his work on her shows under that doctrine.

Danny has a series of illustrations called Dissections which shows medical sketches (the kind you find in old medical books), combined with living humans. This was his senior project for Pratt institute.

Danny claims that an artist called BessNYC4 [NSFW] pasted a photo of Maddona’s face on his drawing and that they were used in her social media. Any many young artists, Danny was first very happy for the fact that his art was so widely exposed. But then he realized that he was not getting any credit for his illustrations. Danny claims that he tried contacting Maddona’s agent and got no response.

Danny got even angrier when he discovered that those illustrations were also used in Madonna’s shows. Being annoyed he posted about it until his lawyer told him to take the post down as BessNYC4’s work was protected under the Fair Use doctrine for being transformative enough.

Danny got annoyed enough that he shared his frustration on his page which got thousands of likes, shares and comments. I am attaching his letter after the jump.

First and foremost … I just want to deliver an open, and honest “FU¢K YOU” to the “Fair Use Act”, and an ACTUAL “what the FUK!?!?” to those it protects. Almost a year ago to date (Jan 2015) I awoke to a barrage of texts stating my work was popping up on Madonna’s FB, IG, and Twitter, with tens of thousands of likes, shares, comments, etc. ! ! At first, I thought … “WHOAH! / COOL!“ but shortly there after, it sunk in. I contacted her agent, and received absolutely no response. In the meantime, I found out digital collage artist BessNYC4 was the one who ‘made’ the work, sending it to her, merging MY ART with her head, and reaping all the benefits.. Things petered out, and I more or less forgot about it; u n t i l … early Oct 2015. I found out (for all intents and purposes) my art was used in her concerts, despite my attempts at getting proper credit acknowledgment, etc. I made a post to build momentum / got a lawyer, and was hoping for justice. My lawyer said “PULL THE POST!” and it was determined the work was ‘transformative’ under the “Fair Use Act”, which protected them / her and the coinciding articles (which came from momentum of the post covering the ordeal) made ME out to be the bad guy. WHY? Anyone with eyes can see… anyhow, this is a rant how WE ARTISTS are taken advantage of, and how laws protect everyone except for who they should, as you can see in THREE of my pieces … anyhow, I’m not thrilled. Pass along if y’all agree (maybe we can build momentum?)
Thanks,
Danny #

Not being a copyright lawyer myself, I have no idea if the work is transformative or not, Danny posted some sample and you can take a look yourself. This is one of Maddona’s instagram posts:

Cut me down the middle……… @bessnyc4 ❤️#rebelheart

A photo posted by Madonna (@madonna) on

Here is a comparison chart that Danny made:

danny-quirk-02

I am not sure what is the moral of the story, but I would like to see this go to trial with equally expensive lawyers on both ends.

[you can follow this story on Danny Quirk’s page, and follow Danny on his Behance account, thanks for the tip Peter]

P.S. we shared a story that challenges Fair Usage when Richard Price used other people’s Instagram photos to make them into his ‘art’.

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Udi Tirosh

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

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26 responses to “Artist Annoyed At Madonna Using His Work With No Credit Under ‘Fair Use’”

  1. Tod Heckert Avatar
    Tod Heckert

    if your dumb enough to put in in Fair use, don’t cry.

    1. DIYPhotography Avatar
      DIYPhotography

      ‘Fair use’ is not ‘creative commons’. Fair use is when you have a right to use something DESPITE the fact that it’s copyrighted

    2. Tod Heckert Avatar
      Tod Heckert

      I know never let anyone use any of your work with out you in control. people will screw you in a minute. Never give your work away for free.

    3. Adrian Duron Avatar
      Adrian Duron

      Has anybody noticed how many people are taking up photography?
      LOTS N LOTS. What does that mean to the “pro” ? That means you better step up your game AND means to bring more clients to your door instead of them shooting their own, even if it means “giving a freebie” occasionally. Yes you get what you pay for but when your not the only game in town anymore, you’ve got to quit acting like your doing the client a favor by shooting them. Don’t forget who’s money bought your groceries last.
      Better take this to heart. Cameras are flying off the shelf and you arrogant “professionals” are getting closer and closer to saying “oh, it’s just a hobby” STEP IT UP AND BE THOUGHTFUL OF THOSE WITH FINANCIAL NEEDS BECAUSE THEY HAVE THE POWER OF..WORD OF MOUTH. Merry Christmas?

    4. Tor Ivan Boine Avatar
      Tor Ivan Boine

      Tod Heckert you are missing the point here. fair use is just a “law” that let you rip of other artists without permission. search for Richard Prince. He’s sold “artwork” for millions or dollars by copying others work and call it art and his own.

    5. Peter Bower Avatar
      Peter Bower

      Correct. As long as ‘10%’ of the image is changed, it can be used under Fair Use without credit or payment. But, if we changed 10% of Madonna’s song by changing a few lyrics, but kept the same melody, I’m sure she’d sue our pants off… and wear them as a hat.

  2. Scott Dombrowski Avatar
    Scott Dombrowski

    From my understanding this is not transformative but derivative. He needs a stronger lawyer. One that won’t bow down to Madonna’s likely wealthy lawyers.

    1. Scott Dombrowski Avatar
      Scott Dombrowski

      As a photographer and educator that has served on copyright policy committees there is nothing I see here that is transformative in any way. I’m not a lawyer but it sounds like he needs to go after the artist that infringed his work as well as Madonna for ignoring requests. Her lawyers are obviously just playing the waiting game for the real artist to act.

  3. Steve Barnett Avatar
    Steve Barnett

    This poor guys is getting screwed. I am guessing Bess4ny not only took his illustrations but she probably doesn’t have rights to the photo of Madonna either. So here is a question. How does Madonna react when someone uses a portion of her music as part of another song? Is that fair use?

    1. Tor Ivan Boine Avatar
      Tor Ivan Boine

      depends on what lawyer you can afford. If you have better lawyers than madonna, its fair use. If not, it’s piracy.

    2. Robert Mynard Avatar
      Robert Mynard

      Ask Andy Warhol

  4. Steve Avatar
    Steve

    People will absolutely no talent steal the works of others and get rich and famous… this is not a new story.

  5. Tor Ivan Boine Avatar
    Tor Ivan Boine

    and where is instagrams nipple police?

  6. Ralph Hightower Avatar
    Ralph Hightower

    If Madonna wants to apply the Fair Use doctrine, then she should give her CDs to the public for free. Me? I’d use her CDs like the free AOL CDs.

    1. basedcharley Avatar
      basedcharley

      good for you sock boy.

  7. Jeffrey B George Avatar
    Jeffrey B George

    I think we should set up a crowdsource for hiring a good lawyer. The original artwork is incredible.

  8. Michele M. Ferrario Avatar
    Michele M. Ferrario

    Fill a dmca take down.

  9. Ben McKamey Avatar
    Ben McKamey

    This guy needs a different lawyer. He also needs to contact the photographer who took the photo of Madonna that is used in those compositions because that person is getting screwed over, too. The “transformative” portion of fair use is not intended to allow someone to copy/paste a few digital images together.

  10. ScreamFace Avatar
    ScreamFace

    The sad fact is, because it is Madonna and everything associated with her image is probably enough. If you or me put our faces on there, what transformative value is there? Put an icon like her, it’s a different story.

  11. What's That Product? Avatar
    What’s That Product?

    The Fair Use Awakens
    The Fair Use Strikes Back
    The Return of the Fair Use
    Revenge of the Fair Use
    Attack of the Fair Use
    The Phantom Fair Use

  12. Donald Giannatti Avatar
    Donald Giannatti

    He needs a better lawyer. Yep.
    One that knows the difference between fair use and derivative.
    My opinion of Madonna has not changed because of this.
    She’s still a hack.

  13. Lukas Cacko Avatar
    Lukas Cacko

    This is simply unbelievable. PLease find another attorney until he/she is willing to take this all the way to the supreme court. Clearly this is not transformed enough other than mirrored vertically and her face is plopped on top of it.

  14. Crazy Gaga Avatar
    Crazy Gaga

    Just to be clear here, Madonna assumes she is posting fan art. Something that she does on an almost daily basis. She gave who she thought was the original artist a credit. As a thank you to her fans she included their works in her show. The images are literally on the screen for a second before they merge into another….. It was made very clear that the submitted work had to be the fans own work and they agreed this with various disclaimers being”electronically signed” I am pretty confident Madonna is not ripping anyone off here, so you need to get some basic facts right. She had her own album ripped off prior to release and referred to it as Artistic Rape and was criticised for using such strong terms…….i dont think she is using power and influence over the little people, if anything she was sharing what she thought was a genuine work of art. After a quick glance at the BessNYC4 instagram page it is very clear this is the type of work he/she creates. I guess claiming against a potentially poor unkown “artist” isnt as lucrative as complaining about a rich pop star who is in the dark. Now who is being ripped off again?

    1. Ethan Geehr Avatar
      Ethan Geehr

      The issue isn’t so much that Madonna projected it at first, but that she refused to stop using it in her shows after being notified that the “artist” had ripped off Danny.

    2. Scott Dombrowski Avatar
      Scott Dombrowski

      Whether she knows if it’s fan art or not, by displaying it she is responsible.

  15. ThatPhotoManTrav Avatar
    ThatPhotoManTrav

    Get a better lawyer.