Photographer Rodrigo Pereda is suing artist Ivan Navarro and his New York gallery, Paul Kasmin, in federal court, alleging that they infringed on his copyright in a number of instances by allowing his work to be published in and distributed to various publications, without his permission and without credit. He says that he was deprived of his typical licensing fee and that his images were used to boost Mr. Navarro’s career.
In one case, Mr. Pereda alleges, Mr. Navarro and the gallery allowed ARTnews to run an image that he shot of one of Mr. Navarro’s light sculptures in an article without his permission.
Mr. Navarro’s defense? He says that Mr. Pereda didn’t actually take the photo in question, and that Mr. Pereda was just his assistant, and thus wouldn’t have retained copyright to any images that he shot. The case, which seeks $150,000 per each of three claims of infringement, raises some interesting questions about the nature of the relationships between artists and those they hire to help complete their projects in a world where agreements often occur over nothing more than a handshake.
In the suit, Mr. Pereda says that he has worked with Mr. Navarro since the 1990s, when they were both in Chile, and that he was paid by the artist to photograph a number of his sculptures, including White Electric Chair (2005), a neon take on Marcel Breuer’s Wassily Chair, which was reproduced in the January 2012 issue of ARTnews. Their arrangement, Mr. Pereda says, was that he would receive copyright and that the images would be used only for “certain limited purposes,” like gallery fliers and on the gallery’s website. Any additional reproductions of the photos, in magazines, books or newspapers, would require a “separate license” from Mr. Pereda.
The suit also charges Mr. Navarro with having permitted the publication and distribution of Mr. Pereda’s photographs as fine art prints in books, magazines, in newspapers and on the Internet without getting Mr. Pereda’s consent, in one case even forging Mr. Pereda’s signature on a release form. In 2010, when Mr. Pereda asked Mr. Navarro to stop authorizing others to use his photographs, Mr. Navarro responded (via his attorneys) that he would no longer use the images but instead would “re-shoot” the works as needed.
Mr. Pereda is also seeking the return of photographic negatives to his work, which he allegedly stored at Mr. Navarro’s studio while he was looking for a permanent studio for himself, and which Mr. Navarro refused to return after repeated requests.
In recent years, Mr. Navarro’s career has taken off, with works going for as much as $400,000 on the private market, according to the suit. While the sculptor’s career has risen, Mr. Pereda asserts, by “falsely claiming that Mr. Navarro is the photographer and copyright owner of the image,” the sculptor has harmed Mr. Pereda’s professional reputation.
Mr. Navarro’s attorney, Amy Goldrich, of Lynn Cahill, rejected the complaint. “Not only did Ivan Navarro take the picture,” she told us in an interview, “it is a picture of Ivan Navarro’s own work.” Mr. Navarro maintains that he had his light sculptures, including White Electric Chair, rephotographed so as to prevent this kind of legal showdown, but that Mr. Pereda was nevertheless working as his assistant and thus does not have copyright of any of the photographs in question.
“Can there be any misunderstanding or confusion about whose work gets made in the artist’s studio, when the artist is paying for the assistant’s time?” said Ms. Goldrich. “When the assistant is doing the specific task requested by the artist, in the precise way that the artist wants it done? When the purpose of performing that task is to accomplish the artist’s purpose, and not some independent purpose of the assistant? This case is about work done on the artist’s dime, in the artist’s studio, at the artist’s request, under the artist’s direction and for the artist’s purpose.”
As the underlying facts of the case come to light, the parties will have to hash out whether or not Mr. Pereda was working as an employee of Mr. Navarro’s, which may make his photographs “works made for hire”—a legal term that means pieces that are made at the request of another, with the copyright remaining with the commissioner.
“If the photographer was in fact the artist’s employee, to document the creative process, that’s probably a work made for hire and the copyright belongs to the sculptor,” said Christopher Sprigman, a professor of intellectual property law at the University of Virginia. But if the photographer was an independent contractor and not an employee, Prof. Sprigman said it’s not a work made for hire situation unless there’s an agreement that says as much. The court will look at factors like whether Mr. Navarro withheld taxes, provided benefits, paid for his tools and had the ability to order Mr. Pereda to do other tasks. If Mr. Pereda was working as an independent contractor, he’ll have a stronger case to claim copyright.
“The thing with gentlemen’s agreements,” he later added, “is that gentlemen tend to disagree, in retrospect, over what they meant.”
Mr. Pereda’s attorneys, Lynn Bayard and Darren W. Johnson, at Paul, Weiss, Rifkind, Wharton & Garrison, declined to comment. Paul Kasmin Gallery did not respond to a request for comment.