Last week, rock music photographer Justin Thomas filed a copyright infringement lawsuit in the Southern District of New York against the American painter Elizabeth Peyton, Sotheby’s, and David Zwirner Gallery, as first reported by Copyright Lately.
In the suit, Thomas accuses Peyton of willfully copying a photograph he took at an after-party in London’s Earls Court in 1995 of Oasis band members Liam and Noel Gallagher embracing in a rare show of affection, given the brothers’ well-reported animosity.
Petyon’s painting from the photograph, titled Earl’s Court (Liam + Noel) (1996), went on to fetch $1,920,000 at Sotheby’s in New York in May.
The disputed painting “is just a slavish copy of the copyrighted work,” argues the court filing. “She copies the captured iconic moment, the famous feuding Gallagher brothers in a kiss. She copies the theme, the brutish rock stars caught being tender,” it goes on. “The only transformation is the medium itself, and Peyton’s slight cropping of the copyrighted work and adding different coloring and brushwork,” it adds, claiming the painting is “classic derivative use.”
The plaintiff also accuses David Zwirner gallery, which represents Peyton, of profiting from publishing, reproducing, and distributing images of Peyton’s painting, which the filing refers to as the unlawful “Infringing Work.” Lastly, Sotheby’s joins the list of defendants for having auctioned the painting, initially estimated to sell for $1,500,000 to $2,000,000, and profiting from its distribution.
Thomas, who now lives in Spain, has been documenting punk, rock, and Britpop performers such as The Clash, Prince, The Rolling Stones, and Iggy Pop for some 35 years. He also made the disputed Oasis brothers’ image the centerpiece of his book of photographs, How Does It Feel? – Oasis 1995-2002, published by Hanging Around Books.
According to the filing, a Sotheby’s representative contacted Thomas this past April to request permission to license his photograph in an online catalogue “as a comparative illustration on a digital webpage essay.” The photograph itself was not up for sale, the message explained. Thomas gave permission for a $2,000 payment.
However, another email reproduced in the filing states that after about a week, Sotheby’s removed the photograph from its website at the request of the artist’s representative. The auction house and the photographer then agreed on the adjusted fee of $1,500. Only then, and “after haggling with Sotheby’s over a $500 discount on its licensing fee,” the plaintiff claims that he discovered his photograph was the source of Peyton’s painting sold in May. By removing Thomas’ photograph from the online catalogue, the gallery and Sotheby’s “were attempting to hide the origins of the painting,” alleges the plaintiff.
However, the source of Peyton’s painting has been well-known for years, as PetaPixel reported. In just one case, art advisor Todd Levin shared images of both the painting and the photograph on social media in a comment about the Sotheby’s auction. “I remember accessing this in 1998 for $12,000,” Levin wrote, adding by way of description that “Peyton’s painting reproduces a photograph…”
Peyton is an acclaimed contemporary artist, recognized for her intimate, figurative portraits of people and artists she knows, as well as more famous figures that range from Napoleon Bonaparte to Kurt Cobain. She has often painted from photographs and has said that rather than portraits, she makes “pictures of people.”
This is not the first time Peyton has faced allegations of copyright infringement. In 2014 and 2016, photographer Dennis Morris accused her of reproducing his photographs of members of the punk rock band Sex Pistols. The first case was settled out of court, with the artist denying allegations and claiming fair use through her legal representative. The second, regarding a painting titled John Lydon, Destroyed (1994), was pulled from a Sotheby’s sale.
David Zwirner Gallery and Sotheby’s did not return requests for comment by the time of publishing.
