Reactor

The $31M Lady Gaga Plagiarism Suit We’ve All Been Waiting For

by Jillian Steinhauer on June 19, 2013

Left: Orlan, "Bump Load" (2009), mixed media, 170 x 100 x 200 cm (via orlan.eu); right: cover image for Lady Gaga's "Born This Way"

Left: Orlan, “Bump Load” (2009), mixed media, 170 x 100 x 200 cm (via orlan.eu); right: cover image for Lady Gaga’s “Born This Way”

Lady Gaga has been accused of plagiarizing from many artistic sources: Canadian-Ukranian artist Taras Polataiko, New York performance artist Colette, and Canadian artist Jana Sterbak, to name a few. But now someone’s finally going the extra step and suing her.

That someone is French artist Orlan, and she’s asking in French court for a whopping $31.7 million, or 7.5 percent of the profits from the Gaga album Born This Way and the video for the song of the same title. Orlan’s suit “accuses the singer of stealing from her to construct the visual universe” of the album, according Artinfo. What does that even mean? Artinfo asked Orlan’s lawyer, Philippe Dutilleul-Francoeur, that very question. He responded:

Not only did Lady Gaga reproduce works by the artist, but she also drew inspiration from her concepts. Orlan’s entire universe of hybridizations was copied in the “Born This Way” album, such as giving birth to oneself, which is seen in Orlan’s photography series “Orlan accouche d’elle-m’aime” (1964-66). The inspiration went too far.

Dutilleul-Francoeur’s first sentence refers to the other argument in the case, which is that Gaga “forged” two pieces by Orlan. He  explained that he’s operating under Article L 335 2: “any production without regard to the laws and regulations relating to authors’ property is a forgery and every forgery is an offense.”

The thread of contention running throughout the accusations, however, seems to be Gaga’s use of prosthetics and other things to give her glamorous lumpy monster look in photos and videos for the album. Orlan has actually had surgical implants in her face to make that look permanent, says the National Post, which means she wins at life — sorry, art. National Post adds that Orlan is suing the French subsidiary of Universal Music as well.

The line here is absurdly slippery — can you really sue someone for stealing a general aesthetic that you claim to have somehow originated or turned into art? Surely Orlan was not the first person to add bumps to her face. It seems a bit like Jeff Koons suing people left and right for using the image of the balloon dog. As for individual works, the onus to prove not only the theft but also the lack of transformation and interpretation seems quite a burden. In American court, that path didn’t work for Patrick Cariou, whose photographs Richard Prince reproduced pretty much identically in his own works. Orlan’s lawyer must know how tricky this is; in the aforementioned interview, he’s careful to note that “we’re not attacking Lady Gaga for having copied Orlan’s look, which is an ethical and not a legal issue. We’re accusing her of having forged her artworks, that is, of reproducing them illegally.”

We’ve arranged the two sets of artworks in question — original and “forged” — side by side, one at the top of this post and the other below. What do you think?

Left: Orlan, "Woman with Head" (1996), performance at ICA London (via orlan.eu); right: a screen shot from Lady Gaga's video for "Born This Way"

Left: Orlan, “Woman with Head” (1996), performance at ICA London (via orlan.eu); right: a screen shot from Lady Gaga’s video for “Born This Way” (click to enlarge)

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  • Nicole

    I feel like this legal argument raises a series of questions on the nature of “forgery,” regardless of the specifics of Orlan’s case. Does the act of forgery necessarily need to be intentional? If, let’s say, Gaga came up with her artistic concepts in a vacuum (I have no idea if she was previously aware of Orlan’s work but it seems likely that she was) could she still theoretically be a forger? Does forgery imply trying to pass off the work as actually BEING the original, and if so, would that also extend to trying to pass off the work as being actually BY the original artist? Does a successful forgery or reproduction need to achieve a certain high level of resemblance to the original such that, say, a layperson would not be able to tell the difference between forgery and original? If so, I would say that Gaga’s works are clearly NOT successful forgeries, as nobody would be likely to actually confuse the two works. They seem to fit more closely within the legally permitted parameters for appropriation in the US. “Forging concepts” seems impossibly vague. Concepts, as opposed to individual works of art or very specific ideas, seem to me to be wide open for interpretation, expansion, or expression by others. That’s how human beings communicate.
    I’m very curious to see what other people think, and how this unfolds in court.

    • Helen Glazer

      That was what I was thinking, too. I don’t see how this meets the legal definition of forgery if she’s not trying to pass off the sculptures as the work of Orlan. I thought a forgery was when someone makes a Picasso-like painting, signs it Picasso, and try to sell it to an unwitting buyer as a genuine Picasso.

  • Yuberniz Yubi Orengo

    Not insinuating that Gaga is a genius or anything, clever at the most honestly, but they do say “Talent Borrows. Genius Steals”. But honestly, this doesn’t look like straight up forgery to me, no one would confuse an Orlan piece with a Lady Gaga music video. I honestly think she knew of these concepts, was inspired by them, and used them to market herself and her music successful. I really get the feeling that the artist’s are seeing her massive success and wishing for the tons of money she has for using very similar visuals. But, as much as I would honestly want to, call it a forgery. (Granted these are successful artists, but there’s a difference between a successful contemporary artist and a household name like Gaga.)

  • Mike Jarvis

    Well if you look at a lot of Orlan’s images, it’s obvious that she “borrowed” from African tribes people..

  • MaximusNYC

    A meat dress, a head on a table, facial prosthetics — none of these are new ideas. Gaga didn’t invent them. Neither did Orlan. They were all done by Dadaists and Surrealists in the ’20s and ’30s… and probably painted by Hieronymous Bosch before that.

  • Shaun Johnson

    If anyone has ever kept up with Lady Gaga in the media, she has always been very clear about who she is referencing. A big part of her act is the appropriation of pop cultural history. DUH! We have seen her take on Madonna, David Bowie, David Byrne, Leigh Bowery, Queen Elizabeth I, everyone. Orlan, you’re a visual artist. Leave the thievery to actual thugs.

  • Daribe Sorrow

    Thank you GC for taking a stand that is not cynical and stands up for artistic integrity even in the face of the oft misused “genius steals” aphorism. Your position is rare these days and gives me hope.

  • Bruce

    “I Love Lucy” episode:20 “Lucy as Sculptress” i954(?) uses the device of Lucy’s head projected up through a card table as sculpture to Maria Ambromavic using it as the table decorations for LA MOCA’s Gala. Lucy did it first.

    • JDBRD

      Yes, the “head on a table” imagery is not new. I seem to recall a 3 Stooges episode where Curly”s head appears on a platter. Can we draw a distinction between intention? “Comedy” is different than the theme of “re-invention,” even though the same imagery is employed. So how many sources does Gaga have to sight and/or award payment to? This is a situation that will only continue to expand. I believe I have a right to use themes and objects that I encounter within a public environment in my work. And, since the internet is now part of my public environment the possibilities for stepping on other’s creative toes expands exponentially (with or without my knowledge of those toes.) “Forgery” is absolutely wrong and using this term in this case, I believe, hurts their chances in court. “Pastiche” is not illegal just not considered as interesting as “original” work, but who has ever created something from the vacuum of a mind unexposed to anything else in their environment or history. Perhaps Gaga should pay Orlan something, then Orlan can pay Hieronymous Bosch and his estate can pay whoever it was first told the story of Salome receiving the head of John the Baptist on a platter…. and don’t forget Curly.

  • http://coryhuff.com/blog Cory Huff

    It’s indeed a slippery slope. Fair use laws seem to say that you can take someone else’s imagery and art, and make your own statements with them. Is this not what Shepard Fairey has built his entire career on?

    To what degree do you have to alter the image to make your own statement? To me, this case is dead in the water.

  • owen

    This topic should be taught in colleges. Paul Beck caught some heat for the Radiohead video for the song Nude. The video sampled and reworked war footage and twisted it into a satirical intense animated social commentary. cool video see hear: http://vimeo.com/68723683

  • Jillian Steinhauer

    I agree that even when you transform, you should give credit where credit is due. The problem is, of course, that we don’t know if Gaga intentionally took these ideas from Orlan. They’re not hugely new or original ones. Also, sometimes I think “stealing” happens by accident—you do it subconsciously, long after you’ve taken something in. Not saying that’s necessarily the case here, but I have found myself doing it with writing, borrowing phrases without even realizing. I guess I just think it’s complicated.

  • wagonjack

    Absurd lawsuit…this artist should be ashamed of herself. Artists ALL through history have copied creative ideas from each other, and our copyright laws are ridiculous these days. I also see VERY LITTLE connection from Orlan’s art to Gaga’s. Hope a judge throws this out of court.

  • lipstadt

    Before every genius pops up with their equally valid opinions on fair use and the like, I’ll remind people that this is a French suit and French IP law – specifically and notably, being the origin of the term author’s rights, and arguably the basis of the (more limited) concept of moral rights in the USA (in addition to personality rights, etc.) – is way fucking different.

    Merits, morals, chilling effects, not reflective of modern international business posts aside, just please keep that in mind.

    http://en.wikipedia.org/wiki/French_copyright_law

    I expect this post to go over as well as any call for self education on the internet (that isn’t the self “education” claimed by homeopathy, anti-vaccination, etc. propagandists).

  • Christopher E. Harrison

    Imagery-wise there’s not enough intentional similarity. Orlon is looking for a payday.
    (Gavel SFX) Case dismissed.

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