One of artist Mathias Kessler's latest works, entitled "The Taste of Discovery", looks familiar. In fact, it is quite obviously derived from a fragrance campaign masterminded by designer and branding genius, Tom Ford. Shot by Terry Richardson, the ad campaign for Tom Ford for Men (pictured above) debuted in 2007 to a fair share of controversy, eventually being banned in several countries, but not in the U.S. Upon further investigation, we found that Kessler's work (pictured below, right) was shown at Kunstraum Dornbirn, a space in Austria in 2009, as part of his exhibit that shed light on the world's imminent oil pollution. Accompanying Kessler's photo, "Perfume bottle sandwiched between breasts 'The Taste of Discovery,'" Kessler notes his inspiration: "Origin: Tom Ford perfume advertisement."
If you're not familiar with copyright law, here is a very quick lesson. Copyright protection grants the creator of an original work a bundle of exclusive rights, include his ability to control its use and distribution, in addition to a few other rights, as well. Terry Richardson or Tom Ford owns the exclusive rights to the photo used in the ad campaign at issue. While the ownership right in copyright is awarded to the creator/capturer of the image, the ownership rights here depend on agreement between Ford and Richardson because ownership may be assigned.
Ford (left) & Kessler (right)
Either way, one of them owns the exclusive right to make any works based on the original, which are referred to as derivative works. Depending on which court would hear the hypothetical copyright infringement case here, Kessler's work may be deemed as infringing of the original as it embodies a substantial amount of protected expression taken from the earlier, underlying work, and thus, does not contain a sufficient level of new expression to amount to an original work on its own. (Moreover, the copyright owner has the right to create derivative works, ones that include major, copyright-protected elements of an original, previously created first work).
As such, it is often in the second artist's (Kessler, in this case) best interest to license the image from the copyright owner to avoid a lawsuit. Because Kessler is arguably using the image as a satire or parody, if Ford were to bring a lawsuit, Kessler may have an out. He could argue that even if a work is found to be an unauthorized derivative work, he is free of liability under the defense of fair use, which essentially permits limited use of copyrighted material without acquiring permission from the copyright holder for the purpose of commentary, criticism, etc. Fair use rulings vary from case to case. So, we will save that argument for another time.