Getty Images Investigating Perry Milou’s $1 Million Pope Painting

Papal Plagiarism?: Franco Origlia’s photo of Pope Francis (left, via Getty Images); Perry Milou’s $1 million painting (right, via Peter Breslow Consulting & Public Relations)

With the pope’s Philadelphia visit quickly approaching, anyone with an ounce of hustle is trying to cash in. There’s Holy Wooder beer, Pope Francis onesies and even a $1 million pope Pop art-style painting by none other than Perry Milou, son of restaurateur and former federal prisoner Neil Stein. But now the international photo agency Getty Images is investigating Milou’s pricey pontiff portrait due to its similarity to a Getty photograph.

“Getty Images takes the protection of intellectual property very seriously,” Getty Images spokesperson Sarah Lochting tells us. “We can confirm that the photograph in question is part of the Getty Images collection, and that we are investigating the matter further.”

The photograph, on which the $1 million Milou painting appears to be based, was taken by Italian photographer Franco Origlia on May 18, 2013, in Vatican City on the occasion of a Pentecost vigil in Saint Peter’s Square. Origlia’s images have appeared on the covers of the New York Times and Entertainment Weekly, and he has been working with Getty since 2002.

The way Getty works is that if you see a photo you like among its catalog, which numbers in the tens of millions, you pay them to license it — as Philadelphia magazine did for its current cover, an homage to Shepard Fairey‘s iconic Obama Hope poster; more about that below — and the price depends on how and where you use it. But Milou didn’t pay Getty a cent, and he has no license. Milou told the Inquirer that each painting (there are others, and Getty tells us that they are actually investigating more than one) is based on more than one photo, although this painting seems clearly based on Origlia’s Getty photo.

When asked for a response to Getty’s investigation of Milou’s use of the image, Milou publicist Peter Breslow told us “it’s complicated” before his office referred us to Virginia-based attorney Kirk Schroder, who says that no one at Getty has formally contacted Milou or his team. “The fact that Getty is conducting an internal investigation doesn’t mean that there is merit to their investigation,” says Schroder. “But since we have no specifics, we are at a disadvantage in commenting specifically.” Schroder says that calls on Milou’s behalf to reach Getty for those specifics have not been returned.

But any legal battle of this nature comes down to a section of United States copyright law known as fair use. According to that doctrine, a copyrighted work can be used without permission depending on what you do with it. The most commonly offered example of fair use is song parody, such as Weird Al Yankovic’s “Fat”, a sendup of Michael Jackson’s “Bad.” Yankovic lifted a good portion of Jackson’s creation, but he transformed it into something quite different. It is in no way a copy of the original work.

But with Milou’s million dollar pope painting, that line is not so clear.

“Is this simply a paint-by-numbers version of the original photograph, or does it completely change the expression, meaning and message of the photograph?” asks Philadelphia intellectual property attorney Alexis Arena of Flaster Greenberg, a firm whose clients include the New York Times and Martha Stewart. That is the question that a judge would ask, Arena explains. “There have been cases where an artist creates works based on a photograph and they rule that it is transformative fair use of work. What it comes down to in those cases is, have they changed the message and sufficiently transformed it to have a different meaning. It’s a bit of a grey area.”

It sure is.

Arena tells us that Milou’s use of the Getty photo as a basis for his painting closely mirrors the story surrounding Fairey’s Obama poster. That poster was derived from an Associated Press photo, and the agency went after Fairey for using it. The case settled out of court, with the AP getting a cut of the posters. “The AP had the upper hand,” says Arena. “When you look at the photograph and the painting, they match in the same way this painting matches the photograph.”

For a case that leaned in the other direction, Arena points to a dispute between photographer Patrick Cariou and artist Richard Prince, whose name popped up again this year when he sold strangers’ Instagram photos for $90,000. Prince cut up Cariou’s published photos of Rastafarians and added color and other elements to them and sold the new works as his own. Cariou sued, and the court originally found that Prince had ripped him off. But later, a higher court decided that the vast majority of Prince’s pieces were new and different enough to constitute fair use.

“The whole impression of the photograph changed,” insists Arena. “These calm nature scenes became colorful strange images that produced different feelings in the viewer and gave the viewer a completely different message. I don’t think this rises to that standard.”

Tell us what you think.

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