January 25, 2019

Everything Old is New Again

By Bryan K. Wheelock, Principal

Photographer Douglas Kirkland has sued the Kfir Moyal Art Gallery Inc. in the Southern District of Florida (1:19-cv-20293-DPG), alleging that the Gallery copied and distributed Kirkland’s copyrighted work for purposes of advertising and promoting Kfir Moyal’s business, as well as in the course and scope of advertising and selling products and services.

The courts have been accommodating to artists who use preexisting images in their work, as long as the use is “transformative.” The question is whether Kfir Moyal’s image on the left is in fact transformative of Kirkland’s 1965 photo of Brigitte Bardot on the right.

Is the image on the left transformative of Kirkland’v 1965 photo of Brigitte Bardot?

Kirkland’s lawyers cleverly focus the Complaint not on the artistry of the Kfir Moyal’s image, but on its commercial use in advertising and promotion, hoping to avoid favorable treatment many courts give purely artistic works.

It remains to be seen if this strategy is successful.