I Am Totally A Phony Copy

Illustration for article titled I Am Totally A Phony Copy

You've probably seen this before. The painting (above) isn't a copy. This is the real deal. This is "The M.K." that appeared at the very first I Am 8-Bit art show in 2005. It was painted by Jose Emroca Flores.

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This painting (below) recently popped up on eBay with a starting bid of US$1,500. It is not the original M.K. painting, but rather, a hand painted copy. From the eBay page: "I'm selling my awesome painting of Mario an Princess Peach it a large painting and awesome for any video game collector. The painting depicts Mario and peach sitting on a question box looking dark and sinister. This is hand painted by me and it awesome i have many complements on this I hate to sell it. Have fun bidding"

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Illustration for article titled I Am Totally A Phony Copy

Nice painting! And while the seller does admit that he (or she) painted it, there is enough ambiguity to assume that this is the painting that appeared at I Am 8-Bit. How do we know it's not the real deal? Let's compare:

Illustration for article titled I Am Totally A Phony Copy

Still don't believe me? "I personally own the original, so there's no doubting this as a fake," Jon Gibson, founder of I Am 8-Bit, tells Kotaku. "It hangs right above my fireplace."

The MK painting [eBay via Game Sniped]

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DISCUSSION

FrankieViturello
FrankieViturello

Tricky, sticky situation this one is.

As ashamed as I am to admit this, as a freelance graphic artist and an art teacher I'm genuinely unsure what right if any the original artist may have to pursue cease and desist action against the copy artist, but here's my thoughts...

If the original artist got paid for the original piece as a part of contracted work, the work may be wholly owned/copyrighted. Since the I Am 8-Bit gallery published a book of the first gallery showing, and I believe this work was included, at the very least the work may be archived in a published work with credit given to the original author. This may be enough for him(or her?) to be able to prevent the sale/profit of such a clear duplication of his work.

It's clearly NOT trans-formative enough to pass any type of litmus test that would allow the copy artist to say that they co-opted the work and made significant changes for the sake of parody, etc. For that to work you'd have to go in and change, I'd say at least 30% of the work - and even that is very very hard to gauge.

It's also not a "parody" of the original, which does typically fall under a fair use umbrella.

And while he doesn't appear to claim original ownership of the concept/work, he also doesn't state that it's a copy ... so, if the original artist did decide to take legal action, not admitting that you didn't create something probably won't be much different than claiming that you did.

I'd say that anybody with any amount of common sense can see that this is a person (albeit a technically talented one) attempting to profit off of another artist's creative efforts. Whether or not you agree that it's ethically or morally incorrect, I'd say that the original artist has some grounds to take action if he/she desires.