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What does it mean to create a new work of art in the digital age?
March 30, 2013 8:51 AM   Subscribe

Judge Rules William Eggleston Can Clone His Own Work, Rebuffing Angry Collector. The U.S. District Court has dismissed collector Jonathan Sobel’s lawsuit (PDF) against photographer William Eggleston. The collector objected to Eggleston's selling new, larger-format editions of the famous dye-transfer images that the artist first produced in the 1970s and early 1980s.
posted by R. Mutt (28 comments total) 12 users marked this as a favorite

 
As someone who would love -- LOVE -- to be involved in this area of the art market, but who has no means by which to acquire the work of established photographers, let me give Jonathan Sobel (and other collectors dropping $250,000/print) a warm smile and remind him that he may find sympathy in the dictionary right between shit and syphilis.
posted by mr. digits at 9:02 AM on March 30, 2013 [3 favorites]


Really? Really?

Yet once again, I am reminded we need legal reform. That we have a system in which people think they have the right to monopolize the output of an artist because it hurts their pocketbook screams for it.

Besides, I foolishly thought you collected art for the enjoyment of said art.

(Of course, this harks back to my failed experiment with collecting Magic cards, so maybe I am a little bitter.)
posted by Samizdata at 9:16 AM on March 30, 2013 [4 favorites]


"... and if you make more of something, it becomes less valuable,”

Oh really...
posted by Fizz at 9:24 AM on March 30, 2013 [2 favorites]


This is such a no-brainer that frankly I'm surprised any lawyer would bother to file the suit in the first place.
posted by Sys Rq at 9:34 AM on March 30, 2013


Not an art collector so maybe I'm missing something, but it seems to me that before the new editions this guy had 190 William Eggleston prints. Now he has 190 original edition, dye-transfer (a process for which the materials are no longer even produced!) William Eggleston prints.
posted by Lorin at 9:35 AM on March 30, 2013 [6 favorites]


This is such a no-brainer that frankly I'm surprised any lawyer would bother to file the suit in the first place.

The judge said that if Eggleston had used the same printing technique as he had in the original batch then the plaintiff would have had a case. Not as clear-cut as we'd like, I think.
posted by no regrets, coyote at 9:54 AM on March 30, 2013


Thanks for posting this FPP. It's really interesting.

I suggest reading the complaint. First, because it's really well written and you don't often see complaints that are. (Most are terrible.) Second, because Sobel's claim is a lot more substantial than just, "He shouldn't be allowed to do this because it will hurt my wallet." In simple terms, Sobel makes a breach of contract argument: By selling Reprints, Eggleston is violating the agreement he made when he sold the original prints as "limited editions."

I'd like to read Judge Batts' decision. (But I'm not paying PACER for it.) On just a cursory glance, it looks like the statute Sobel cites is merely an internal statutory definition (eg, "For purposes of this statute, the following terms will be defined this way..."):
"Limited edition" means works of art produced from a master, all of which are the same image and bear numbers or other markings to denote the limited production thereof to a stated maximum number of multiples, or are otherwise held out as limited to a maximum number of multiples.
Defining how the term "limited edition" will be used in a statutory section isn't the same as defining how it may be used in the marketplace. And Sobel basically acknowledges this. He's saying that when Eggleston expressly marketed his prints as limited editions, Eggleston was implying that they were "limited editions" in this legal sense. That's a stretch, but it's not lunatic and I understand why they included it in the complaint.

The fraudulent misrepresentation and promissory estoppel claims, though, are more substantive. According to ARTINFO, Judge Batts' reasoning for dismissing these claims hinged on the fact that Eggleston used a different process to create the Reprints—digital, rather than dye transfer. I'd like to read that part of the decision for myself. I wonder how the original prints were marketed. Did Eggleston sell them as "Limited Edition Dye-Transfer Prints," or did he just use the bare term "Limited Edition"?

As for Eggleston's lawyer, who told ARTINO, "The decision is important because it confirms that artists who work in multiples will continue to have the right to use the images that they create," that's kind of a crock. This decision could have gone the other way and it wouldn't necessarily have meant that photographers can't continue to create prints and reprints. It just would have meant they can't claim to be producing limited editions while doing it.
posted by cribcage at 9:57 AM on March 30, 2013 [15 favorites]


With a collection like this perhaps the real value of such a high profile case, win or lose, is as reminder to the art world that Sobel is in possession of the "real" work.
posted by Lorin at 10:05 AM on March 30, 2013 [1 favorite]


I'm curious how 'different' a print has to be to meet this test. If it was a larger dye transfer print, or a digital print (whatever that means in this case) at the same size, would it pass muster?
posted by ChurchHatesTucker at 10:12 AM on March 30, 2013


I wonder if this will make people buying art as an investment think twice about buying limited edition prints. When photographs can be inexpensively reproduced in massive qualities paying a crap load of money for the print is kind of an act of faith.

Collectors are paying for artificial scarcity and artists are making money off that scarcity. I would think this would make people have second thoughts about investing in this kind of art.
posted by SpaceWarp13 at 10:23 AM on March 30, 2013 [1 favorite]


It's an interesting case for sure and there are a lot potential shades of grey that could apply in the general case.

For example what if the tricycle print was a crop of the original and the artist was to release the exact same style of print but included 10% more area via a more inclusive crop? Or what if the tricycle print was from negative #28 but the artist had two more negatives with the exact same composition but with a 1/2 of a stop of additional or less exposure?

I bet this issue in general isn't settled as there is a lot of hair splitting that could require a court to figure out and a lot of money potentially at stake.
posted by Mitheral at 10:23 AM on March 30, 2013


When you edition prints, there's a process it goes through where the artist signs off on a master print (BAT) and the edition is made of X number, with some proofs reserved for the artist and printer (AP / PP). The the edition is signed and numbered 1/X and you sell them until you're out.

It would be unethical / defeat the point of editioning to go back and be like "woops I need more money, let's print off X+1/X". But sometimes artists run second editions, and they are always signed and editioned as such ("1/X II" or whatever) and this is (generally, some people disagree) not seen to dilute the value of the first edition.

So maybe someone more familiar with the law can explain, but it seems to me like this judge recognized that he wasn't trying to extend the first edition fraudulently, but had created a second edition with a different process. Basically, same shit that artists already do as best practices.

I wonder if this will make people buying art as an investment think twice about buying limited edition prints. When photographs can be inexpensively reproduced in massive qualities paying a crap load of money for the print is kind of an act of faith.

This has always been true with printmaking and photography. You are buying a print, not the plate or the negative. Some people don't buy prints for this reason and stick to "originals" like painting.

Personally I collect prints because I'm not ridiculously rich and I don't buy them as investments as part of my portfolio.
posted by bradbane at 10:31 AM on March 30, 2013


I think Sobel suggesting that the dye transfer prints are equivalent to the digital prints hurts the value more than Eggleston creating the digital prints in the first place.
posted by starman at 10:38 AM on March 30, 2013 [2 favorites]


This has always been true with printmaking and photography. You are buying a print, not the plate or the negative.

No. You are buying a product based on value that is increased by scarcity. Haven't you ever heard of a Cancellation Print? The plate is defaced and a print is taken to demonstrate that no print can ever be made again, preventing any restrikes. This is a common (although not universal) practice in both printmaking and photography. But this can't be done with digital process, I could always print a destroyed print but the file is backed up, undamaged. There's no way to prove an edition is definitively finished, when the original media isn't a physical object.

I know one major atelier that has been secretly storing litho plates made by major artists (like MAJOR artists) and occasionally restriking a print or two, then forging signatures and passing them off as originals. This is exactly what a Cancellation Print is supposed to prevent.

I don't know what the deal is with this lawsuit, though. A collector generally benefits from an artist's work selling for record prices, it increases the reputation and the value of the prints that he presumably purchased at a lower price, at an earlier date.
posted by charlie don't surf at 10:48 AM on March 30, 2013 [1 favorite]


I wonder if this will make people buying art as an investment think twice about buying limited edition prints. When photographs can be inexpensively reproduced in massive qualities paying a crap load of money for the print is kind of an act of faith.

Photos? Yes. Dye-transfer prints? They weren't cheap when you could buy the materials direct from Kodak, and they are far less cheap now when you can't. The very few artists making dye transfer prints basically spent every dime they could get buying and freezing supplies, and most of them are out of them.

Basically, you take your original image, make three matrix copies through red, green and blue color filters. Since the matrices are negatives, this gives you cyan, magenta and yellow plates. You then load the matrices up with the correct dye and roll them, one at a time, onto the paper.

But that's eliding a lot of details, like the contrast masks you needed to make to get well exposed matrices. This goes into detail, and note how many pieces of film have to be exposed correctly to get one print, and even then, you're not done, because you have to figure out how much of each dye to lay down to get the best image.

This is an extraordinary PITA, and it's very expensive to get the first print out, and merely expensive to get the next prints out, right until a matrix fails. The amount of control it gave you, however, was amazing, in both color and contrast -- indeed, it gave contrast control per color -- which is why the finest photoprinters all used dye transfer. It also made prints with exceptional light and dark fastness, so those prints would last a long time. Dye transfer stored in a dark vault would last longer than Kodachrome.
posted by eriko at 11:15 AM on March 30, 2013 [12 favorites]


It's nice when a guy who pays thousands of dollars for a photo of a tricycle finally gets that "I've been ripped off" feeling we all knew was coming.
posted by ShutterBun at 12:01 PM on March 30, 2013 [2 favorites]


The original was sold with a guarantee of scarceness, ie this is one of a limited edition of only n prints that will ever be made of this image. If you can slightly change the process or even just the size (say making new prints that are 1% bigger or smaller) and producing more, then the guarantee was meaningless.

I think artists shouldn't give guarantees of scarceness because it is too limiting. Then they can do what they want with their work forever.
posted by w0mbat at 12:12 PM on March 30, 2013 [1 favorite]


So artist makes some money by an implied promise of artificial scarcity. Now he's found a way to actually sell more by clinging to the letter of the law, rather than the spirit of the deal. Well, smart guy, I guess, if not a paragon of ethics. But I can't imagine why anyone would ever trust him again. I'd assume another generation of prints may turn up at Walmart next month, if there's any money in it.
posted by tyllwin at 12:57 PM on March 30, 2013 [2 favorites]


If you bought print 1/10, or 2/10, or 3/10, them I suppose you'd be rightly peeved to see 11/10 hanging in your neighbor's house.

The artist could circumvent that by labeling 11/10 as an "artist's proof." Of course then your neighbor wouldn't be as happy.

I think something like copyright principals should apply. Such the concept of transformativeness in the derivative work such that it transcends, or places in a new light, the underlying work.

Give me access to a sample dye-sub print. Then give me: a spectographic microscope; time to calibrate an dformulate the diffusion and mirroring properties for a clear overlay; custom rip software; a 10 color Ultrachome K3 printer; a couple of other optical intruments and enough lab space, and I will give you a copy of that dye-sub with transforatinessve approaching zero.

Regarding erico's understandable praise of the dye-sub stabilty, consider that the method I just outlined has an estimated stability of about 200 years. (Time will tell on those estimates.)

Let me propose a new kind of limited edition art product: The copyright of the image is assigned to a holding company and a share is given the purchaser of each multiple. Restrictive covenents could limit the shareholders rights to the same rights any owner or a signed numbered addition would have. The artis would retain no or limited rights. That would be the digital media verion of breaking the mold.
posted by StickyCarpet at 1:02 PM on March 30, 2013 [2 favorites]


I'd assume another generation of prints may turn up at Walmart next month, if there's any money in it.

Cool, that means common folk can enjoy the art too!
posted by Jimbob at 2:05 PM on March 30, 2013


Too late, the common folk have been enjoying Eggleston for years in the form of album covers.
posted by Lorin at 2:21 PM on March 30, 2013 [2 favorites]


The more I think about this, the more it seems to me that getting an art collector to spend big money on your art, then making those pieces of art "worthless" with the click of a mouse, would be a pretty great thing to do if it were within your power.
posted by Jimbob at 4:09 PM on March 30, 2013


Another terrible decision by Judge Batts. This was pure greed on the part of the Dealer, imo. My guess is that Cheim Read convinced Eggleston to reprint the work on a larger scale, solely for commercial reasons.

The collectors who purchased prints from a limited edition got screwed.
There is no aesthetic difference because the original dye transfer is now a
digital print.

Sobel should have won the case, and perhaps will prevail on appeal.
posted by snaparapans at 4:14 PM on March 30, 2013


There is no aesthetic difference because the original dye transfer is now a digital print.

Sorry, no, you're absolutely wrong. Analog dye transfers prints made direct from film have very different aesthetic qualities from digital inkjet prints. There is also one significant factor for collectors: dye transfer prints are archival. There is no archival inkjet printing process.
posted by charlie don't surf at 5:19 PM on March 30, 2013


The large digital pigment prints are archival. And, you may split hairs, as Batts did, but no critic who does any worthwhile aesthetic critique/analysis of Eggleston's tricycle photograph would discuss the vagaries of paper, texture, or slight variation in the work or art. The power of his work is in the image, that is what makes it a great photograph, or a photograph that someone wants to buy.

The only argument that seems cogent to me is that the size makes a different impact. But this is
not why the picture was reprinted. The sole reason was $$$$. A larger print could have been done when the edition was set, so buyers had a choice. Making a large print years later smacks of greed.

Many photographers rejected editions as it went against the "nature" of photography.
But those who did, for whatever reason, can not have it both ways, imo. Well, at least they could not have it both ways, until now.

Limited editions generally are made to create a higher price, scarcity. Changing the size,
medium long after the original piece was created, breaks a contract. It is slimy.

Particularly when it was done in such a slimy way. But Eggleston is 75 or so, he made his well earned reputation, and now does not care. Christies, Cheim Read, et al. will be able to make
new works long after he is dead.

Buyer Beware... best to take a snapshot of one of his pictures, blow it up, put it on your wall
for your own enjoyment.
posted by snaparapans at 6:21 PM on March 30, 2013


Christies, Cheim Read, et al. will be able to make new works long after he is dead.

Under the current copyright regime? Very long after.
posted by ChurchHatesTucker at 6:39 PM on March 30, 2013


The large digital pigment prints are archival.

Absolutely not. Pigment-based inkjet prints are claimed to be archival by researchers who are paid by inkjet manufacturers, and have lowered their standard for archivality to worthlessness. I have been beating this drum since the days when I was one of the first Iris operators. Inkjet dyes and pigments are heavily ionic, otherwise they could not work in piezo or electrostatic-deflection printheads. That promotes oxidization, and thus are non-archival. Many of these inkjet pigments have a rated longevity of ~60 years and are promoted as archival. There are C Prints 60 years old that look like they are brand new.

This the Dark Age of photographic printing. Truly archival processes have become nearly extinct. In 150 years, today's digital prints will be faded and worthless.
posted by charlie don't surf at 8:33 PM on March 30, 2013 [4 favorites]


In 150 years....

Haha... OK, in 150 years we will compare C-prints, Dye Transfer, and Digital Pigment prints to test their archival guarantee.

see you then....

as for now... at hundred of thousands per print, most folks are betting that the Archival Digital Pigment Prints Eggleston had made, will last for quite a while..
posted by snaparapans at 6:37 AM on March 31, 2013 [1 favorite]


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