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Winston Smith's Close Call

Moneytree_1 Winston Smith has been cutting up other people's pictures to make surreal and politcally charged collages since the 1970s. His illustrations have appeared in magazines from Spin and Playboy to The Atlantic Monthly and the New Yorker (my favorite New Yorker illustration can be seen at right).  But most know him for his album cover art for punk bands like the Dead Kennedys, Jello Biafra, and even Green Day. 

I emailed Winston to ask him if he'd ever had a run-in with copyright holders upset with the way he, in his words, "kidnaps innocent images from vintage magazines and diabolically glues them into compromising or politically revealing positions." Here's what he had to say:

Winston Smith: Actually, in over 25 years of appropriating images created by hard-working artists (unlike myself), only once was I ever approached about it. Sometime in the late 1990s I had made an illustration for Playboy using an image from an "Old West" magazine from around 1949.  The artist who did the original illo saw it.  He was 82 at the time, so I reckon he had something on the ball that he was still enjoying pictures of the photo lay-outs of Playboy. (Or at least the articles...)  And he recognized his work, even though I had substantially changed it and added several elements.

My art director at Playboy said the illustrator wanted to sue, until their lawyers pointed out that the image was fifty years old—the original copyright had run out about 24 years earlier. And because I had transformed the whole piece, it was no longer covered anyway.

But Playboy was cool about it and the editors invited him to write a letter about his work. So his son wrote a nice letter about his dad's career as an illustrator and how pleased he was to see that his work still had relevancy at the turn of the century (1999).  And Playboy asked me to write a letter explaining how I create my compositions and how the essence of collage as an art form depends entirely from appropriating images from different sources (without which I would be working in a GE plant making air conditioner filters outside Tulsa).  They printed both letters, plus a reproduction of the guy's original piece. (I would send you the tear sheets but the pages are stuck together).

That was the only close call (so-to-speak) that I've had in over a quarter of a century. I also try never to utilize anything from Disney, Coca-Cola or Norman Rockwell. I may be crazy but I ain't stooopid.

Posted by Steve Lambert on 01/29/2006 | Permalink


their lawyers pointed out that the image was fifty years old—the original copyright had run out about 24 years earlier.

Plenty of music recordings had their copyrights run out - then retroactively applied copyright laws removed said music from the public domain and put it back in the hands of corporations. This is a moral crime, but it's the law. Are audio recordings held to different copyright standards than images? Or were Playboy's lawyers fibbing because they were approached by an (easily cowed) individual, rather than a corporation?

Posted by: ninapaley | Jan 30, 2006 9:53:59 AM

Music recording rights are more complicated than illustrations - you've got at least two sets of rights--for the particular recording and for the underlying composition. If the song was based on a poem or other work, that's another potential tangle... and there could also be union contracts (for musicians in big bands, orchestras, etc.) to deal with, which, while not copyright issues, can have the similar effect of removing something from the public domain.

Posted by: carrie | Jan 30, 2006 3:44:22 PM

I understand all those tangles and multiple rights. However, recording rights now last 90 years. Even recordings that were made in the 20's, and entered the public domain in the 50's and 60's (if their copyrights were not renewed after, I think 28 years) are now owned. I also learned recently that state law can supercede federal law on copyrights; works which, according to federal law, would be in the PD, can be owned for well over a century if they were made in NY.

Posted by: ninapaley | Jan 30, 2006 10:58:01 PM

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