On Frank Ocean And “Fearless Girl,” Or: Who Owns Art?

Photo by Jason Merritt & Drew Angerer / Getty Images

Imitation is the sincerest form of flattery… right?

In 2011, Frank Ocean pissed off Don Henley with his debut mixtape, Nostalgia, ULTRA, by using Henley’s “Hotel California” as the backing track for his own “American Wedding.” Henley, and his record label Warner Brothers (who owned the master), threatened to sue Ocean if he ever performed the song live, on the grounds that their copyright was being infringed upon. 

In 2017, a statue of a small girl pissed off a statue of a charging bull; more specifically, it pissed off Arturo Di Modica, the creator of "Charging Bull," by deigning to exist. Di Modica threatened to sue the team behind “Fearless Girl,” on the grounds that his copyright was being infringed upon. His reasoning was that the girl’s proximity to Di Modica’s work changed the meaning of his artwork.

Six years separate these two events, and, on the surface, they may not seem related, but they share similarities that sum up the complications surrounding our current state of artistic copyright and the direction in which we’re headed when it comes to ownership and art, including who that copyright law is actually protecting.

When it comes to art, a lot of copyright law feels incredibly archaic. People still believe that by mailing something to yourself you are protecting your intellectual property. This is what’s known as “Poor Man’s Copyright” and is, according to the UK Copyright Service, “next to worthless.” (And who even uses the mail these days?)

There’s evidence to suggest that art-related copyright laws have been in play as early as 1506 when printmaker Albrecht Durer lodged a complaint with one Marcantonio Raimondi for plagiarizing his woodcuts. Though there’s some conjecture as to the timeline, Dr. Christopher Witcombe, professor of art history at Sweet Briar College, suggests that the circumstances around Durer’s complaint meant that he had some sort of legal support

However, Anglo-American copyright law for art dates back to the 1710 Copyright Act, known as the Statute of Anne, which essentially took the power of copyright ownership out of the hands of publishers and into the hands of authors for a fixed amount of years, after which the work would go into the public domain, free to use. This period of time was initially 14 years; now a copyrighted work lasts for the life of the author, plus 70 years. 

Already we’re in a bit of a morass. Public domain? Statute? Woodcuts? What does this all mean? As Amanda Levendowski, clinical teaching fellow with the Technology Law & Policy Clinic at NYU Law and a founding fellow of  the Internet Law and Policy Foundry, explains to me, “copyright law doesn't protect ideas.” For example, this means that Instagram was well within its rights to copy Snapchat’s Stories feature because Instagram didn’t copy the underlying source code.

This also means that Ocean was on very sticky ground, legally speaking, with “American Wedding,” because he used and amended (improved?) the song’s master track—its own source code, if you like—rather than just covering it, which much to Prince’s lifelong chagrin, is fine to do. So there you have it! An easy mistake to make, slap on the wrist and don’t do it again. Case. Cuh-losed. 

Except wait no, because Robin Thicke got sued for sounding like Marvin Gaye and Sam Smith got sued for sounding like Tom Petty. And Ed Sheeran? Well, he’s been sued for also sounding like Marvin Gaye, as well as X-Factor winner-turned-failure Matt Cardle. Sheeran has quietly given a writer’s credit to TLC on “Shape Of You,” because it sounds like “No Scrubs.” (We guess Sheeran is learning to cover his ass at this point.)

This is where the “Charging Bull” versus “Fearless Girl” debate is really interesting, both in terms of how similar it is to the Henley and Ocean debate, but also how different the two might end up. To clarify, Di Modica’s lawyer, Norman Siegel, was invoking something called “moral rights” under the Visual Artist Rights Act when challenging “Fearless Girl.” These “moral rights” protect “intangible elements” of an artist’s work, such as integrity and attribution. So because Di Modica thinks that the proximity and dialogue of the “Fearless Girl” deliberately and indefatigably alter the meaning of “Charging Bull”—which, without question, it does—he thinks his moral rights are being infringed. 

However, in an interview with Artsy, Amy Adler, a professor of art law at New York University Law School, said, “Under moral rights in this country, while you can sue for someone actually physically changing a sculpture, changing a sculpture by placing another sculpture near it is simply not actionable.” 

Adler goes on to say, “All public art is ideally in dialogue with the space it exists in. And that includes other sculptures.” Again, obviously, this is correct. If “Charging Bull” were to be installed in Pamplona, it’d have a different meaning entirely, given the context of that city and of that space. Similarly, if “Fearless Girl” were standing in front of another bull—like this one in my hometown of Builth Wells, Wales, and an altogether better bull IMHO—then it probably wouldn’t have the powerfully feminist associations it has on Wall Street. 

It’s this notion of dialogue between public art and space that needs to be considered when looking at copyright in music. Whenever a music copyright case is in the news, there’s always some description of lawyers holding up chord charts and sheet music to try and prove similarities, as if pop songs were as clear-cut as text on a page. It all feels rather small and like it misses the point. 

Songs, as much as statues, are pieces of public art, in dialogue with the world around them and the history that’s gone before them. “You’ll Never Walk Alone” has a different resonance when sung by thousands of Liverpool fans at a Liverpool game than it does when sung by Nettie Fowler in the musical Carousel, for example. 

Sampling—whether a deliberate use of a backing track, or part of a backing track, or an accidental melodic lift, the kind that happen and go un-sued all the time—is the perfect example of this type of cultural dialogue. And, by the way, it’s not a new thing. In musical terms, sampling is no different to what’s been happening with folk music for hundreds of years—melodies borrowed, songs rewritten, arrangements tweaked and shifted and passed down the line. Going back to Adler briefly, in defending “Fearless Girl,” she said, “a policy that would allow one artist to stop another artist’s work would be a mistake.” This is sound and should be extended beyond public art, and across the board. 

We are currently living in an age where all content is up for grabs, ready, if not always willing, to be taken, molded, parodied, spliced, reworked, recontextualized, repurposed, for almost any means. And so a statue originally meant to be a symbol of a city’s defiance in the face of economic hardship thus becomes a negative symbol of an unequal patriarchal society. Or a piece of lush, ostentatious, ‘70s guitar rock about drugs and excess (I mean, I think?) becomes an R&B beat about doomed love. Or maybe a close-up shot of a cartoon aardvark’s fist becomes a loaded piece of internet language. 

If intellectual property in tech seems to allow for imitation well enough, why can’t the same reasoning be applied to art? Once something is out into the world, it takes on a life of its own, and any attempt to keep control of what that life may be, whether through litigation or otherwise, well, it’s like trying to close the stable door after the bull has bolted. 

Photos by Joe Maher/Getty Images, Dimitrios Kambouris/Getty Images for TIME

Must have been pretty awkward

Taylor Swift and Sophie Turner were guests on the U.K.'s The Graham Norton Show together, which must have been awkward for Turner's husband, Joe Jonas, seeing as he also happens to be Swift's ex. I wonder if his name came up?

The interview doesn't come out until Friday night, but promotional photos show the two sharing a couch. Swift is making an appearance to perform her new single, "ME!" while Turner is promoting her new film, X- Men: Dark Phoenix. But it seems necessary for the two to be asked about Jonas.

Swift was just on the Ellen DeGeneres Show earlier this month, where she brought up the fact that she felt bad for putting Jonas "on blast" on DeGeneres' show back in 2008 by telling the audience that he broke up with her in a record-setting short phone call. But, according to Swift, she and Jonas are chill now, since it happened pretty long ago, which means she's probably already hung out with Turner and maybe even gossiped about him with her.

We can only hope that they get the chance to spill some tea on television.

Screenshot via YouTube, Photo Courtesy of HBO

"That's! His! Auntie!"

Leslie Jones has rewatched the Game of Thrones finale with a beer in hand, Seth Meyers at her side, and a full camera crew ready to take in all her glorious reactions. Spoilers ahead, but, if you haven't watched last week's episode already, that's kind of on you at this point.

When Jon Snow started to make out with Daenerys, also known as his aunt, only to stab her through the chest moments later, it was emotional whiplash for everyone watching. And, Jones' reactions—both from her first and second viewing—sum it all perfectly.

"That's! His! Auntie! [gagging noises]," Jones says before making an aside about calling the police if her uncle ever tried to do the same. But then the knife goes in, and Jones screams. "Did you see that?!" Jones asks, "Yeah bitch, that's a knife in you." Meyers points out the funniest part of all: "Why are you so upset about someone kissing their aunt but totally fine with someone killing their aunt?" Jones replies, "Because that bitch needed to go," and, well, same.

Other highlights from the comedians' rewatch include comparing Dany's victory speech to a bad improv gig, predicting that their dogs would have less of a reaction to their deaths than Drogon did to his mother's, and more.

Watch all of Jones' reactions from this Late Night clip below.

Game of Jones: Leslie Jones and Seth Watch Game of Thrones' Series Finale


These lyrics are a lot

Robbie Tripp, aka Curvy Wife Guy, is back with a music video, titled "Chubby Sexy," starring his wife and a trio of models. In it, Tripp raps about his bold choice to find women with an average body size attractive.

The video begins with a series of statements laid over some pool water: "Curves are the new high fashion," "Chubby is the new sexy," "We Out Here." Tripp posits that these queens deserve an anthem, which they do. What they do not deserve is this Cursed Song. As he lists all the names he knows to call them by (thick, thicc, and BBW), one model (who I really, really hope was paid well) squirts some lotion down her cleavage, and Tripp begins dancing.

"My girl chubby sexy/ Call her bonita gordita," Tripp states in his chorus, before going on to compare "big booty meat" to the peach emoji. Another thing he mentions is that his wife can't find a belt that fits her waist, and that's why he calls her James and the Giant Peach. He then tries to dab. Here are some of the other Cursed highlights from his, uh, verses:

Got those Khaleesi curves/ Knows how to dragon slay
She like a dude that's woke/ We like a girl that's weighty
Some say a chubby girl that's risky/ But they ain't met a curvy girl that's frisky
Imma dunk that donk like I'm Andrew Wiggins.
Thick like an Amazon/ Built like Big Ben.

Tripp says one thing in the video that I couldn't agree more with: "She don't need a man." No, she does not. Please run. If you must, watch the entire video, below. Or send it to your nemesis!

Robbie Tripp - Chubby Sexy (Official Music Video)

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Photo by Emma McIntyre / Getty Images.

See the promo here

It was bound to happen. The Kadashians and Jenners have committed themselves to letting the cameras roll on their lives, for better or for worse. So if you thought that the Jordyn Woods and Tristan Thompson cheating scandal was off limits, you thought wrong. The trailer for Sunday's episode of Keeping Up with the Kardashians was just released, and it involves the famous family working through the fallout of what happened when Woods went to a party at Thompson's house.

The teaser includes the infamous clip of Khloé Kardashian screaming "LIAAAARRRRRR." It's still not explicitly clear who prompted that strong response. She could be responding to Thompson, who clearly isn't always honest. Or she could be reacting to Woods account of the events on Red Table Talk. But the most revealing moment comes when we see Kylie Jenner—who was Woods' best friend before all of this happened—react for the first time.

In a heart-to-heart conversation, momager Kris Jenner says, "For you and Jordyn, it's like a divorce." Kylie only offers this in response: "She fucked up." Based on Woods' version of events—which I'm inclined to believeThompson is the one who fucked up. Still, I'm hoping for some kind of reconciliation between the two longtime friends. Perhaps we'll have to wait until next season for that.

Check out the promo video below.

Photo by Michael Gottschalk/Getty Images for Topshop Topman

We'll miss you

According to Business Insider, Topshop will close multiple Topshop and Topman locations in a step to avoid bankruptcy, including all 11 of its U.S. stores. In total, 23 stores will be shuttered globally.

This decision follows Topshop's recent filing for bankruptcy in the U.S., and a string of controversies surrounding the chairman of Topshop and Topman, Sir Philip Green. Last year, Green was investigated for sexual assaulting and racially abusing employees. Business Insider notes that though the brand thought it would fare much better in the States, it has not grown as quickly here as it expected. This is likely due to the successes of less expensive U.K.-based online retailers like ASOS.

Topshop stores first arrived here in 2009, and were met with crowds and excitement—for a time. The brand's dwindling success in the U.S. and declining revenue globally has been chalked up to a "challenging retail environment, changing consumer habits, and increased online competition," according to Ian Grabiner, the CEO of Topshop's parent company, Arcadia Group.

Arcadia Group is also submitting a restructuring plan for approval, which would involve negotiating lower rents for its shops and cutting pensions for employees in half. These proposals have not gone into effect yet. Grabiner said that the restructure and closings are a "tough but necessary decision for the business."

If you live in the U.S., you'll still be able to shop from the retailer online and at its wholesalers, such as Nordstrom—but it won't be the same as stepping into its stores.