To Cite or to Steal? When a Scholarly Project Turns Up in a Gallery

Kevin L. Ferguson, summed frame visualization of 'The Searchers,' directed by John Ford (1956) (courtesy the author)
Kevin L. Ferguson, summed frame visualization of ‘The Searchers,’ directed by John Ford (1956) (courtesy the author)

It’s early enough in my career that I still get a thrill whenever I see my work shared online. As a scholar who works in both film studies and digital humanities, I use public domain scientific image analysis software to create “sums” of films, adding together the frames of a film to make one single abstract image. Since 2013, I have shared hundreds of these on Tumblr, Twitter, and Flickr, and written about my process in both popular and scholarly venues. Last year, the circulation of my work on social media brought me some attention, and I was interviewed by the Huffington Post and invited to contribute to The Best American Infographics 2016. I did some custom work, gave some talks, and wrote some book chapters, and when the venerable British Film Institute posted a link to my work on Facebook, I pretty much thought I had arrived.

So, last month, when I happened to see a British gallery tweeting about my work, I was curious and excited to see the context. I wondered how they found me? What other artists would they mention as a frame of reference? I wondered if they would want to display any of my work?

But no. What I was seeing was an announcement for a show by Jason Shulman at Cob Gallery called Photographs of Films. The press and interviews collected on the gallery’s website lauded a conceptual beauty and rigor in his work, but the only thing I could see was a rip-off. “Email for price list.” These images were unmistakably similar to the distinctive work I had been producing for years, and it was not long before friends started writing to let me know.

At left, the flier for Jason Shulman's exhibition at Cob Gallery with a summed image of 'Fantasia' (screenshot by the author); at right, Kevin L. Ferguson's summed frames of 'Fantasia,' directed by James Algar et al. (1940) (courtesy the author) (click to enlarge)
At left, the flier for Jason Shulman’s exhibition at Cob Gallery with a summed image of ‘Fantasia’ (screenshot by the author); at right, Kevin L. Ferguson’s summed frames of ‘Fantasia,’ directed by James Algar et al. (1940) (courtesy the author) (click to enlarge)

I am embarrassed now to recall how unseemly it felt to write the gallery before the opening to let them know about the situation. I was imagining the great expense of running a posh gallery in London, the effort of publicity, the time spent producing and mounting work, and here I was asking them to reconsider running the show in its current state. But I thought there was no way that the gallery would have been aware of my work beforehand, and so I naively expected them to be properly horrified at the obvious similarities and to respond appropriately.

Instead, two days later, I received 575 words about copyright in 10 contradictory bullet points. I started to see more press and more publicity. Photographs from the gallery’s opening, with well-known actors in attendance, appeared. Filmmakers praised the work. “My” work appeared all over social media and, maddeningly, on a growing number of websites that I admired.

In the message she sent, the gallerist was arguing that regardless of appearance, if Shulman and I used a supposedly different process to create the same image, then by definition his work had to be substantially different from mine. The rhetorical move here was helpfully explained to me by a lawyer, who also explained that it would be a very expensive case without any real financial reward, and that the gallery likely knew that and would just do whatever they wanted to anyway. Although I never mentioned copyright in my email, I could easily see the line that was being drawn: if Shulman’s work was created in “a different way” than mine, then it would not violate copyright, and if it did not violate copyright, then the gallerist could see no reason not to continue the exhibition.

It was hard to respond to this. In interviews, Shulman is very coy about his process, which was the first thing that bothered me about the similarities between our work. In a write-up in Wired, we learn that “Shulman won’t share many details about his process, but says he photographs the films ‘off a very, very high resolution monitor with a very big camera.’” Unlike Shulman’s strange secrecy (his process actually sounds pretty simple), for me it is important to share both the intellectual context as well as the specific nuts-and-bolts of my process, so that others can make use of my work. In this way, sharing my method not only satisfies the most basic requirement of ethical participation in humanistic culture — citation and the acknowledgment of other artists — but also reflects an awareness of a scientific tradition of reproducibility and an intellectual commitment to sharing knowledge freely.

Kevin L. Ferguson research on the “style space” of 176 Disney, western, Japanese, and gialli films plotted by entropy (a measure of randomness, on the x-axis) and mean intensity (i.e., brightness, on the y-axis) (courtesy the author)
Kevin L. Ferguson research on the “style space” of 176 Disney, western, Japanese, and gialli films plotted by entropy (a measure of randomness, on the x-axis) and mean intensity (i.e., brightness, on the y-axis) (courtesy the author)

So, in discussing my work, I acknowledge visual artists whose work I have used as a conceptual base to expand my thinking about film, the digital, and duration, including Hiroshi Sugimoto’s Theaters from the mid 1970s onward, Jim Campbell’s Illuminated Averages series (2000), and Jason Salavon’s Portrait (2009/10). Independently, other bloggers confirmed my sense of this mini-canon, remarking on similarities between these figures and Shulman. For instance, responding to the press around Shulman’s show, Michael J. Wilson criticizes the particular erasure of Sugimoto, a well-known Japanese photographer often exhibited in London. Ron Kretsch more directly questioned Shulman’s Wizard of Oz by placing it side-by-side with a much earlier version by Campbell. Austin Kleon compared Shulman’s work to mine in the context of captions. Because this work is so conceptually specific, its forebears are all the more easily recognized, and there is more consequence in failing to acknowledge these predecessors.

Beyond the imperative to acknowledge previous work, I share my work and process in a scientific tradition of reproducibility. If these are ever going to be anything more than just pretty pictures — whether that means a scholarly use for media studies research or as transformative artistic work in a particular aesthetic tradition — then understanding what these images do and how they work is critical. This tradition of reproducibility does not mean that art must be like science: reductionist, experimental, or empirical. Rather, it means that processes underlying the work should be made available to others, so that others may likewise experiment, expand, and engage with my practice. This is a core value of the digital humanities, particularly the tradition of deformance (Jerome McGann and Lisa Samuels), screwmeneutics (Stephen Ramsay), and weird DH (Mark Sample), all of which are centered on play and the use and reuse of other digital materials. While the art world has its own tradition of theft and attribution, as part of the broader humanities, the art world today confronts a crisis of intellectual property, commerce, and new forms of dissemination. In this new internet ecology, a gallerist staking a body of work on technicalities of copyright alone will no doubt find her endeavor doomed.

Kevin L. Ferguson, montage of the summed frames of 54 films produced by Walt Disney Animation Studios, 1937–2014 (courtesy the author)
Kevin L. Ferguson, montage of the summed frames of 54 films produced by Walt Disney Animation Studios, 1937–2014 (courtesy the author) (click to enlarge)

While I find these abstract images beautiful and engaging on their own, I also use them as a form of media historical research that I call “digital surrealism,” treating the abstract images in their own right in order to study media history. For example, by comparing larger groups of summed films we can ask new research questions about film genres, historical periods, or national cinemas. Have animated films gotten darker over time? How distinct is the color palette of western films? Does Asian cinema frame its characters differently than Hollywood cinema?

But because Shulman is ignorant of this tradition that examines cinema and duration, his work fails to contextualize motion pictures in a meaningful way or to engage with cinema itself beyond clichés, such as his claim that these images show how “lots of Bergman films are kind of moody and psychological, much more so than other films,” or his misguided metaphor that “each of these photographs is the genetic code of a film — its visual DNA,” a lazy description that makes me uncomfortable as both a film scholar and a movie lover. Having thought about these kinds of images very hard for years, I see in Shulman a distinct lack of that quality of reproducibility that allows for deeper engagement, a failure to recognize prior work or to place his work in any tradition other than the superficial.

All of which made the gallery’s copyright-centric response even more frustrating. The gallerist’s email to me prioritized copyright details over common sense, placing my work in a frame of legal niceties that diminished my contributions in order to argue for the singular nature of Shulman’s work: well, he doesn’t use the credits but you do; his colors are somehow truer to the original than yours; in fact, his process is quite different and clearly produces a different, superior result. Unable to even acknowledge any of the obvious similarities between our work, the gallerist closed with a curiously sincere request: “I would be grateful if you would confirm that, in view of the above, you have no complaint with regard to the exhibition and exploitation of Jason’s work.”

“The exhibition and exploitation of Jason’s work.” What strange words to describe the function and value of art.

As far as “exhibition” is concerned, social media, search engines, and online databases have transformed the way knowledge is shared, and numerous disciplines have worked to respond to this change. For example, the New York Public Library has focused recently on expanding its digital collections, encouraging unprecedented access to, engagement with, and remixing of its holdings. The Modern Language Association just released a new version of its style handbook that departs from its predecessor’s fetishism of citation minutiae in order to show how documenting sources is a crucial way to publicly record meaningful conversations in a changing digital world. The Brooklyn Museum’s new ASK app creates a “dynamic and responsive museum” where visitors can pose geolocated questions in real time to a team of art historians and educators. Institutions like these, curators of humanistic values and culture, are shifting to embrace open exhibition practices as a way to facilitate productive connections between individuals past and present. Isn’t it reasonable to expect an art gallery to do so as well?

As for “exploitation,” this runs counter to my intellectual commitment to sharing knowledge freely. I do not mean, in this case, that art should be given away, but rather that artists and their representation should be more conscious about exactly what they are exploiting and should question the durability of a model of art centered on exploiting artists (and, as a consequence, artists exploiting other artists). “Exploitation” here requires the Cob Gallery to see me and Shulman as mutually exclusive. Exploitation requires a definition of his work as singular, sui generis, allowing no comparisons. Exploitation demands silencing any suspicion that his work is derivative in any way.

I sent one more email to the gallerist, asking to be acknowledged and credited in their literature, appealing to their sense of artistic community. This, after all, is a space that describes itself as being “founded on the principle of creative collaboration, adhering to a culture of collaboration between artist and gallery.” My email read, in part:

Last, and beyond what our lawyers might say, I appeal to your sensibilities as gallerists. Jason’s work is clearly similar to mine, and I’ve been doing it much longer than him. I can appreciate your lawyer’s advice to focus on the legal distinctions, but you must recognize that this is dubiously similar work, without much distinguishing conceptual consideration.

So, I’m asking to be fairly recognized as being associated with similar work. I would appreciate being mentioned in your literature in an appropriate way that gives me my due. My main interest is in getting credit and I’d like to work with both of you on the best way to provide attribution.

I received no response to my request. How naïve was I to expect one?

In my unsuccessful efforts to negotiate my concerns of plagiarism with the Cob Gallery before the opening, I discovered that the aims and principles behind my scholarly aesthetic practice are at odds with the reality of the commercial art world. Whereas citation, context, and conversation are important to my work and teaching, the gallerist responded to my complaint with narrow, technical details of copyright law in order to protect her interest in running the show. In doing so, the gallery sacrificed an opportunity to engage with my work or to contextualize its artist’s work in a larger field, missing precisely the values and practices an art gallery should perform in the face of digitally-produced and disseminated work like my own. Rather than “exhibition and exploitation,” I had hoped for conversation and collaboration. But for the gallery, that kind of conversation is incompatible with a privileging of exploitation as a mode for producing and disseminating art.

As a countermove that encourages others to better engage with the kind of work I make, I conclude with a description of how readers can easily create their own summed images.

  1. Download the free, public domain software ImageJ.
  1. Use Quicktime Player 7 or similar to create a folder of frames from a digital copy of a film (File / Export … and select “Movie to Image Sequence”). You can get good results using even only a frame every 2–3 seconds (try .15 fps to start). You may also want to size your window to 600 pixels to save processor speed.
  1. In ImageJ: Select Import / Image Sequence and navigate to the proper folder. For this purpose, you can select “Use virtual stack” to speed up the process.
Directions for creating summed images of films
Directions for creating summed images of films
  1. Once the folder of images is imported, select Image / Stacks / Z-Project. For “Projection type” select “sum slices” and hit “OK.”
Directions for creating summed images of films
Directions for creating summed images of films
Directions for creating summed images of films
Directions for creating summed images of films
  1. Share, engage, contextualize, respond, collaborate, remix, extend.
Kevin L. Ferguson, the summed image of the 55 films produced by Walt Disney Animation Studios (courtesy the author)
Kevin L. Ferguson, the summed image of the 55 films produced by Walt Disney Animation Studios (courtesy the author)
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