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Theft or artistic prerogative?

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Do well-known artists have a right to appropriate other people's photographs to make 'art'?

By: M Neelika Jayawardane

Last week, the respected and well-known American artist Hank Willis Thomas’ work was exhibited by the prestigious South African gallery, the Goodman, at the Johannesburg Art Fair. One of Thomas’ works, prominently displayed at Goodman Gallery’s booth, was an image based on an altered version of an iconic photograph taken by South African photographer Graeme Williams. The price set by the gallery was $36,000.

Williams, whose own work was being shown at the fair by London-based Artfirst Gallery, happened to spot the image as he walked through the art fair’s booths. He was shocked at seeing his own photograph – with minor modifications – displayed as work by another artist, at that astonising price. There was no acknowledgement of him as the photographer, nor the source of other South African photographs used in similar artworks displayed adjacently.

Williams said he immediately contacted the Goodman Gallery and Thomas’ studio to ask for an explanation but received no statement from either camp. Although the Goodman Gallery later claimed the artwork was removed as soon as their team was made “aware of Graeme’s concern”, Williams is clear that it remained on display until the end of opening day’s celebrations and the opening reception for VIPs, who make most of the purchases at any art fair.

Having received no response, Williams took to his photography practice’s social media page on Facebook. He posted the following statement:

Last night at the opening of the Johannesburg Art Fair, I was disturbed to find a displayed image of mine credited to another photographer. By slightly whitening part of the image…African American artist, Hank Willis Thomas, has attempted to make this image his own. My unaltered image has been published and exhibited many times. In 2008, as Barack Obama sought the Presidency and raced for the position against John McCain, Newsweek magazine ran a story asking each candidate to discuss what best personified their world view. This image that I took in Thokoza (1991) during a Nelson Mandela rally was used to illustrate Obama’s world view.

Thomas is quoted as saying: “I do think appropriation is akin to stealing, even though I think the ownership of advertising images is questionable. But for me it would feel more like stealing if I thought ‘I really wish I’d taken that image myself so I’m just going to use it.'”

Well Hank, I am glad that we agree on that point.”

Williams’ post received an outpouring of support and, as of my writing, has been shared over a hundred times.

On September 10, a full four days after Williams first contacted Goodman, and only after his own gallerist contacted Goodman Gallery, he finally received a carefully worded response. It was one of those cookie-cutter “sorry for causing any upset or offence” apologies that we are now used to hearing from celebrities. There is no acknowledgement of responsibility for actions or behaviour; rather, the focus is on the “upset” – the reaction – of the complainant.

When I reached out to Thomas, his response was that, “these are questions central not only to this specific situation, but also to our respective practices and the field of photography at large … Questions of presentation, representation, ethics, appropriation, commodity, ownership, authorship, exploitation, and subjectivity have been raised within the field since its beginnings and will be into the future”.

In a subsequent response, Thomas wrote that his works are “retro-reflective” and “viewing in person and under the specified lighting conditions is critical”. He added that he “never had any intention of claiming attribution of Mr Williams’ photograph; I was 15 years old when it was taken and living in another country. My work is intended as a commentary on the original image and the nature of photography itself”.

It is important to correct here, that questions about representation and appropriation have not, in fact, been “raised within the field since its beginnings”. Rather, as a friend reminded me, they are “recent, and directly related to [the efforts of] critical race theorists, critical feminist, and critical queer theorists” – including black, feminist and queer scholars in the US – who worked hard to make these questions relevant. Further, productive conversations may need to focus on what makes an artwork an innovative comment on another artist’s or photographer’s intellectual and creative property through incorporating the original work in some way – and what makes an artwork a more simple appropriation of an arresting image or object that has a clear ownership or lineage. In places like South Africa, such issues are deeply felt, and it is necessary to maintain respectful boundaries and acknowledge people’s intellectual and cultural contributions. Those debates helped me develop my own critical acumen and ethical stances, and I am grateful for the sharp direction I received.

Whitewashing a powerful photograph

Graeme Williams took the original photograph in 1991, at a rally where children at the impoverished Thokoza township, located to the east of Johannesburg, were marching in support of Nelson Mandela, who was visiting the township that day. The backdrop shows South African security forces on top of a Casspir (an armoured vehicle), watching the procession. The uniformed men lounge about on top of the vehicle, which towers above the children. In some ways, they look like relaxed parade-watchers who have a prime viewing spot. But these men, who still carry more than enough firepower to end the parading children’s lives, have devolved into a soporific stupor. They – the feared and reviled front line actors who maintained the violent practices and policies of the apartheid regime through the use of banal, everyday forms of violence and deadly force – seem unable to act. Instead, they seem to be resigned to what seems inevitable at this point, given the fantastical popularity of Mandela and the promise of the freedom and dignity that his mythical figure promised at the time.

Williams remembers how remarkable it was to be a photographer during this time. Mandela had only just been released from prison, and Williams watched how “he transitioned straight into being a statesman”. As a photographer working for Reuters, Williams was among a small group of journalists and photographers who met at Mandela’s Johannesburg office each morning.

“When he came out, we’d ask, ‘Where are you going today?!’ And that day, he said, ‘Thokoza!’ [Williams playfully imitates Mandela’s famous tone and accent]. So we jumped in our vehicles and went there.”

It was immediately obvious, Williams says, that Mandela was able to sway the direction of the country.

“The power dynamics of the country shifted dramatically from the Nats [the National Party, which formalised the policies of segregation into apartheid] to the ANC overnight. And it was that remarkable shift in power that was evident in that photograph, in that simple juxtaposition. Those kids felt free to go out like that to parade for Mandela, in front of a Casspir and policemen. That was powerful.”

The power of William’s photograph is in its ability to encapsulate a moment of transformation and awakening into power. The layers of juxtapositions in this photograph, which seem simple at first, conveys an almost magical narrative of contrasts: first, there is the marked disparity between the experiences of the two sets of bodies – the lethargy and resignation of formerly powerful warriors who now find themselves on the “wrong” side of history, and the energy and delight evident in the children’s high-stepping glory, conveying what even the promise of a magical journey from being an invisible, objectified “other” to full dignity can give a human being.

There is the corrugated metal wall, topped with rolls of barbed wire, literally separating these two sets of people – there are the warriors, in full battle armour, seemingly directionless and without the will to step into action, lounging about on a war machine stalled behind the wall; and there are the children, in their ill-fitting hand-me-down clothes and dusty shoes in the foreground, directing themselves towards an unforeseen future.

Up till that moment, the young children’s only value, for the South African state, lay in their docility and acceptance of having to live behind geographical, physical, and logistical barriers intended to make them invisible. In a not-too-distant future, they were to be ready to be instrumentalised into labouring bodies, useful for the enhancement and profit of South Africa’s “whites”. But in a moment, they transform themselves – from being invisible, objectified bodies to delightfully energetic persons, cognisant of the promise of becoming. We know that Mandela, though absent in the photograph, is the conduit to this remarkable transformation.

Hank Willis Thomas’ appropriated image of Williams’ photograph uses an effect that looks like white-washing: the wall, armoured vehicle, and the uniformed men on top of the vehicle, are all covered in a veneer of chalky white paint. They appear only as shadowy presences, with no discernible identity. More importantly, the power, ruthlessness, and violence that anyone who remembers the apartheid police and army would associate with these uniformed men on an armoured vehicle – are all whitewashed out.

Appropriating photographs to make ‘artworks’

As an American artist with long-standing socio-political interests in South Africa, Thomas built ties there through his relationship with the Goodman Gallery, the longest operating and one of the most financially successful commercial galleries in the country, well-known for providing spaces for the growth of artists. Thomas notes that he has, in recent years, approached his practice as an artist “interested in the ways that popular imagery informs how people perceive themselves and others around the world,” he assumes “the role of a visual culture archaeologist”.

His work is known for its powerful ability to highlight or reveal, with humour at times, problematic politics of gender, race, and class embedded within images, which – previously – may have gone unnoticed by most audiences. Thomas’ photo-derived sculptures are cast in aluminium, silicone and bronze; they tread the line between advertising, archival photography and sculpture, often offering a powerful commentary about the original images.

However, there is a significant difference between Thomas’ early works of bricolage, in which he incorporated other photographers’ works in order to make a commentary of his own, and his more recent works. In the past, he had acknowledged where he sourced the components of his work, including the titles.

For instance, in If I Could Tell the Story in Words (2013), he notes that the title itself is a quote from Lewis Hine, whose original photograph Thomas used in his own work. Hine photographed child labourers – mostly those of European descent; he is known as the photographer who initiated the discourse on children’s rights, and possibly even began the genre of human rights photography. Hines said, famously, “If I could tell the story in words, I wouldn’t need to lug around a camera.”

But in the series of sculptures he produced for his first major exhibition of works at the Cape Town branch of the Goodman Gallery in 2014, History Doesn’t Laugh, he “often openly appropriated” advertisements from the classified section of newspapers, logos, magazine graphics, and South African photographs made before 1994 “with the intention of proposing and unveiling new social and cultural meanings”. Thomas used iconic photographs by Ernest Cole, Eli Weinberg, and Catherine Ross, and rendered sections of the bodies of subjects in metals.

The appropriation – or to be more blunt – the taking ownership of less culturally powerful persons’ works, with no acknowledgement of the origins of the concepts within the original photograph, artwork, or the creator behind the work, is a pervasive practice. It happens within South African artists’ and photographers’ ecosystems too.

South African photographer Roger Bosch also pointed out that his work had been “appropriated” in an alarmingly similar manner. One of Bosch’s iconic photographs – depicting police violence towards protestors in 2014 – shows police using high-pressure hoses to blow back a group of black protesters. The water appears to be dyed blue – so that authorities might identify, later, who was present at the protest. The South African artist Haroon Gunn Salie used this photograph, changing only one major aspect of it, in his 2015 exhibition History After Apartheid at the National Gallery in Cape Town: he made the colour photograph into a black and white image but highlighted the bright blue spray, perhaps to signify apartheid-era police’s use of dyes in water cannons to later identify those at protests. Gunn Salie has also created a number of other similarly doctored photographs. Although Bosch made a complaint to Agence France Presse, he said that nothing came of his complaint.

There is another way

It would not have been difficult for the artists to contact the photographers, and ask them to do a truly collaborative project. It is my opinion that the artists’ works, had they been collaborative and the original work attributed appropriately, and profits shared, would have been far richer and layered conversations on the nature of photography and audience interpretation of images. For instance, Thomas’ work would have been a powerful statement about how the spontaneous, joyful, and hopeful rallies, which erupted in support of what seemed like the fruition of a dream – have become, 20-plus years later, rallies raging against the devastating political realities that resulted; it could have been about how the march for freedom and dignity will never truly be over.

However, Williams insists that his photograph has “historical value and has a life of its own. I do not feel that I need an American ‘artist’ to give it legitimacy or status.” For those reasons, he “would never have given [Thomas] or anyone else permission to use it for some secondary gain.” In that case, the artist, no matter how genuinely they believed in the merit of “rephrasing” the narrative in a powerful photograph – and no matter how self-important – should have acquiesced, and understood that there are limits to their power to take, own, and instrumentalise other’s work in order to profit from their labour.

M Neelika Jayawardane is an Associate Professor of English at the State University of New York-Oswego.

Courtesy Aljazeera

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