On Lichtenstein and “theft”

There’s an emotionally compelling comic going around now that shows some of the hardships artist Russ Heath faced in the decades after Roy Lichtenstein appropriated one of his panels in a now famous painting. Per the comic, Lichtenstein sold the painting for four million dollars. (I’m not sure where that figure comes from, as another source says he sold it in 1966 for under £4,000.)

Some of the people sharing this comic—like BoingBoing, for example—describe Lichtenstein’s appropriation as “theft.” The short comic doesn’t use that word, but there’s an implication that there’s some kind of injustice here: Lichtenstein got paid and Heath did not, and the comic suggests that’s a problem.

But if something was stolen from Heath, what was it? What is it that Heath doesn’t have, that he would have if Lichtenstein had never appropriated the panel?

There’s a labor story here: talented and hard-working artists from the golden era of comic books were poorly compensated, and frequently taken advantage of. There’s a social welfare story here: independent of Heath’s stature as an artist, it’s shameful that 80-year-olds can’t afford groceries or medical bills.

But I don’t think there’s really a copyright story. Worse, I think the implication that Lichtenstein “owed” Heath something for his success ignores two truths about what copyright isn’t.

  • Contributing value doesn’t give you a right to control or capitalize on it. Lessig describes the mistake in Free Culture, and attributes the “if-value-then-right” formulation to Rochelle Dreyfuss: if some creative work is valuable, then somebody has a right to control that value. Of course, much of the value of creative works is non-excludable anyway, but that’s a feature, not a bug.
  • Copyright is not a lottery ticket: copyright policy shouldn’t be geared towards capturing as much as possible of the money exchanged on extremely rare runaway successes. That’s the same mentality that makes a man standing near a monkey taking a selfie feel like he ought to make a living off that photo for life.

I’m quite glad that the Hero Initiative is stepping in to support comics professionals who need it. I don’t think an artist’s healthcare options should depend on how commercially successful their work—or licensed derivatives of it—continue to be.

As with the songwriter who sued Alicia Keyes for infringement two years ago, I feel genuinely bad for the older artist who has fallen on hard times. But in both cases, the solution is not to try to expand copyright to cover them. Given what the Hero Initiative says about comic artists, and the fact that musicians, too, are uninsured at twice the rate of the general population, there’s definitely a policy that needs to change—but it’s a social one, not economic.