Over the weekend, eagle-eyed TikTok and Instagram users noticed similarities between several paintings on view at the Guggenheim Bilbao and photographs taken by a queer Black artist, raising concerns of plagiarism.
The paintings are by Basque artist Gala Knörr and depict various views of a Black cowboy. They look like frames of a stop motion film. In one, his back faces the viewer, his gaze directed at a serene pastoral setting. In the next, he’s glancing backward.
In its press materials, the museum writes that Knörr “revisits the history of the American West by reviving figures that may have played a prominent role in their day but have been forgotten in popular US culture.” With the paintings of the cowboy, the museum continues, she “revises through the image of the young African-American woman Brianna Noble on horseback, which she found among the photographs of the protests that arose in the USA within the context of the ‘Black Lives Matter’ movement after the murder of George Floyd.”
Critics online countered that the images are ripped straight from the short film Blue by the Brooklyn-based multidisciplinary artist Dayday. The movie stars Ezekiel Mitchell, a young Black cowboy recounting his entry into bull-riding. Throughout, speakers weave his personal story into the history of the Black West. In its opening minutes, he stares ahead at the green landscape before noticing the camera. The Guggenheim’s materials for Knörr’s work did not explicitly reference Blue.
Art consultant and curator Alexis Hyde was among the first to address the controversy online. On TikTok, Hyde highlighted attempts by Instagram users to bring the alleged offense to the attention of Knörr and the museum.
“This white woman artist is out there trying to talk about erased Black history while she is actively erasing Black history,” Hyde said on TikTok. She later said TikTok deleted the video, claiming it was “bullying” though her claims were echoed by the user Bona Bones, whose post about Knörr and Dayday’s works has received more than 90,000 likes.
Knörr’s New York gallery, Pablo’s Birthday, acknowledged the controversy on Instagram, writing, “As an art space, collective, and individuals, we have been taking the time to get most of the facts and to reflect on how the gallery can do better as an art world entity to promote mutual respect and foster narrative of equity. Second, we want to apologize to [Dayday] and acknowledge the work they have created.”
Both Knörr and Dayday did not respond to a request for comment.
This week, the Guggenheim, working together with the show’s curators, Knörr, and Dayday, reached a resolution: Blue will be exhibited with an artist’s statement alongside Knörr’s paintings, “marking the visible source of inspiration for Knörr,” a museum spokesperson told ARTnews.
“By tangibly linking the works together, we can begin to reflect on the dual erasure of the cowboys of the Basque country and African-American cowboys in the United States from history,” they added.
Tangible artworks, such as paintings, drawings, and sculptures, are protected by copyright law. But in any medium, it’s often a muddled path between inspiration, appropriation, and plagiarism, with no higher judge than opinion—unless the case is particularly egregious. The past decade has seen high-profile artists grapple with accusations of copyright infringement, which should inspire deeper scrutiny of the issue.
Richard Prince, who has a long practice of appropriation, was sued in 2009 for reproducing images from Patrick Cariou’s 2000 book of photography Yes Rasta and using them in a collage series titled “Canal Zone.” Prince lost the initial trial, but won on appeal. Prince is again facing litigation for a 2014 series consisting of enlarged and printed screenshots of other people’s Instagram posts annotated by himself. He has invoked fair use, the legal defense that permits the use of certain copyrighted works in the name of freedom of expression.
Meanwhile, Maurizio Cattelan’s infamous Comedian artwork—the banana taped to a wall that threw the Art Basel Miami Beach fair into a frenzy in 2019—is now in the headlines again after a U.S. artist alleged that Cattelan plagiarized his work. Last week, a federal court in Miami denied Cattelan’s motion to dismiss the lawsuit against him.
There are several variables significant to an appropriation case—whether the new work made money and how it affects the market of the original, for example—but most decisions are premised on transformation. The defense was invoked first by one of the earliest appropriation artists, Robert Rauschenberg, and has come up more recently during litigation over an Andy Warhol portrait of the pop star Prince. The case involving the Warhol work is set to be heard by the U.S. Supreme Court soon.
As Richard Prince has illustrated through his legal victories, the doctrine of fair use is vulnerable to a determined will and likely will keep evolving with successive tests in court.
The Guggenheim’s resolution is notable because it bypasses the winner-loser framework of the legal system, and instead cedes a platform to the wronged party. “The [Guggenheim] thanks dayday and Gala Knörr for the opportunity to collaborate on a reparative solution,” the statement concluded.