In case you were not around the internet this summer, an endeavoring senior citizen in Spain named Cecilia Gimenez got tired of looking at a faded and worn painting of Jesus and spruced it up. When word got out, the internet exploded, a meme was born, and (making it super official) a parody Twitter account was created. This joke came and went in the traditional internet humor cycle like a gentle summer breeze. And, like anything funny for more than five seconds, it got merched and subsequently much less interesting. Cue the lawyers, because Ms. Gimenez is now suing for royalties. Money makes everything more complicated, doesn’t it?
If you’re an artist, you’ve got to be simultaneously horrified and supportive of what is going on here. On the one hand, she destroyed an underappreciated work of art (“Ecce Homo” by Elías García Martínez). She did so with noble intentions seeking to honor the subject of the work, not knowing that the original painter’s granddaughter made a donation for the painting’s restoration. On the other hand, her creation (inartful though it may be) has become an internet cash cow and a tourist attraction for the church and the town. Thus, like many modern artists, her *ahem* work is being traded upon and she isn’t seeing a dime. Sound familiar to any of you bootstrapping artists out there?
Whether you make music or take photographs (or even if you code software), you may know the feeling when your creation enters a public forum and accelerates in use beyond your control. That is roughly the same as what is happening here. Of course, seeing this only through the lens of copyright is making a mistake.
Beyond basic copyrights, artists sometimes have protections commonly known as “moral rights,” which are defined at the federal level and sometimes at the state level (ex. Massachusetts Art Preservation Act). These rights of attribution and preservation in the United States are limited compared to that of the droit moral in Europe. Most relevant here, Spain particularly has a broad swath of rights dealing with attribution, preservation, and commercialization against the artist’s convictions. Setting aside the copyright ownership/authorship questions, the strength of moral rights in Spain is a clear plus for Ms. Gimenez’s rights to control the work. While she may not be able to stop the proliferation in the modern-day world, she can try to ride the money train.
However, the concept of moral rights is also her greatest legal weakness and may ultimately result in her having to turn over any royalties she actually receives. Depending on the scope of the protection (and I do not portend to be any type of on-the-fly international legal rights scholar), these rights may extend to the original work by Elías García Martínez and his estate. Thus, it is possible that his heirs could sue her for any funds that she recovered because she distorted/modified/altered/etc. the work in a way prejudicial to his reputational interests.
But, this begs the question: did she? Was he an artist whose legacy was gradually lost to time like so many others? Is he only now relevant because of the actions that she took somehow restored his reputation or at least resurrected him in the collective consciousness? If so, does this leave her with the superior moral rights claim?
These are thorny issues not easily resolved. Some have said it’s better to be notorious than unknown, and art isn’t likely to be the exception. The wisdom of that for your career is your decision, but one thing is clear: the more money we come across, the more problems we see. And, I dare you not to Spotify Notorious B.I.G. right now.
Aside: That title took me a while. I spent an inordinate time looking up slogans for Fresca, only to then conclude no one would get the reference if I had to go through more than three pages of results on Google. Then, I thought about using the “The Spain Fresco Treat” as a Rice-a-Roni allusion and just…no. I thought about “That’s My Borja-s Fresco: Now, PAY ME!” and later realized it doesn’t work if you pronounced the town in Spanish because it’s in Spain and all.
