Pusenkoff has used a square of yellow paint 2cm thick to cover Miss Livingston's pubic area. The square is conceived as a miniature repetition of the blank, monochrome canvases pioneered by Russian artist Kasimir Malevich around 1920. Pusenkoff's game is to make his canvases buzz with cultural associations by quoting from other artists - a perfectly respectable, post-modernist approach to picture making. It became so popular in the 1980s that it was given a name - "appropriation art".
Pusenkoff is hailed as one of the most promising post-modernists among the batch of dissident artists who left Russia around 1990 to make their careers in the West. He lives in Cologne. One of his images was chosen as the invitation card for a major exhibition of avant-garde art from Eastern Europe held at the Bonn Kunsthalle last year; he also had a one- man show at the Tretiakov Museum in Moscow in 1993. The present court case challenges his right to play with visual quotations.
Newton is effectively saying you can't quote from me - or, anyway, not without getting my permission and paying a copyright fee. Reproducing a Newton image in a magazine can cost at least pounds 600, so heaven knows what he'd charge an artist for "appropriation". He's not prepared to reveal the price himself. I got the 74-year-old maestro on the phone from his home in Monte Carlo, but after a cheerful greeting he refused to discuss any aspect of the case and referred me to his lawyer in Hamburg.
Dr Matthias Prinz has acted for many celebrities, from Princess Caroline of Monaco to Karl Lagerfeld. He jumped sharply into action over Pusenkoff's recent exhibition in a new contemporary art space, the Ursula Blickle Stiftung in Kraichtal, near Hamburg (the show is scheduled to move to the Russian State Museum in St Petersburg in August).
On 9 June, a matter of minutes before the exhibition opening party, Pusenkoff was handed a fax from Prinz stating that Power of Blue was copied from one of Newton's photographs, and that Newton therefore had the right to have it destroyed against a compensation payment equivalent to the cost of the materials (canvas, paint etc). The fax explained that Newton had the right to take possession of the painting instead of destroying it, and asked its price.
"At this moment, it was like a storm," says Pusenkoff. "I thought, if Newton says my painting is something to do with his image, it can't be that bad. I'll present him this painting. I respect him as a photographer. I don't want to destroy the painting."
A compromise was hammered out with Prinz, using as intermediary a curator at Cologne's Ludwig Museum - Gerard Goodrow, who had written an introduction to Pusenkoff's exhibition catalogue. Pusenkoff would change the name of the painting to Power of Blue, Hommage to Helmut Newton, and donate it to Newton; it would remain in the Kraichtal exhibition and be collected from there at Newton's expense. Pusenkoff would pay Dr Prinz's fees.
Prinz faxed a copy of the agreement to the artist for his signature on 14 June. Pusenkoff added two extra undertakings to the agreement, signed it, and sent it back. It was these that caused the kerfuffle. The first said Newton could only take possession of the painting after it had been exhibited in St Petersburg in August/ September. The second said Newton accepted the painting was not a copy and did not infringe copyright law.
Prinz and Newton apparently regarded the latter amendment as an insult. Without notifying Pusenkoff of what he was doing, Prinz went to the Hamburg courts and obtained an injunction to prevent the exhibition of the painting. From 15 June to the end of the exhibition on 9 July, the painting hung in the Ursula Blickle Stiftung covered with a cloth. At the full hearing of the case on 20 June, Pusenkoff's lawyer expressed a hope that the wrapped- up painting would not attract a further copyright suit from Christo, the Bulgarian-American artist who specialises in wrapping things - he was, at that very moment, engaged in wrapping the Reichstag in Berlin.
Pusenkoff lost. The judge had to decide whether the painting should be considered a "freie Benutzung" (a "rough adaptation") or a copy. On the grounds that the nude was the main motif of the painting and that Pusenkoff had even imitated the photographic shadows, the judge concluded it was a copy. Pusenkoff has appealed, and a second hearing - more carefully prepared - will take place in late August or September. On this occasion the painting itself is to be allowed to appear in court.
Pusenkoff and his supporters consider that the nature of late 20th-century art will be on trial. The first judgement, in his view, demonstrates that the lawyers and judge had not grasped the nature of artistic creation. "The trial will be like a performance," he told me, "contrasting the mentality of 20th-century artists and the intellectual level of the court."
"Appropriation" has, of course, been a key feature of 20th-century art. Marcel Duchamp added a moustache to the Mona Lisa and the coded caption "L.H.O.O.Q." - which reads dirty if spelt out in French. Andy Warhol borrowed from press photographs of Elvis Presley, Marilyn Monroe and many others to create his famous screenprints. Roy Lichtenstein borrowed from Marvel Comics. Pusenkoff himself often borrows from Lichtenstein. Indeed, a second painting in his present exhibition, Lichtenstein Thinking about Newton, quotes simultaneously from both. Pusenkoff has used Lichtenstein's famous "I know how you must feel Brad", posing the Lichtenstein girl in front of a Newton photograph of four top models called They are Coming. The bubble emerging from the girl's head has been changed to: "I know how you must feel Helmut".
"It is two stories in one painting," says Pusenkoff, "the Eighties and the Sixties and how one thinks about the other." Newton hasn't sued over this, or two previous Pusenkoff paintings which included borrowings from his photos. Power of Blue, painted earlier this year, was Pusenkoff's fourth "appropriation" from Newton.
Nobody took any notice of all these borrowings until about 10 years ago. But a series of cases have recently been brought against American artists. Jeff Koons was successfully sued by a photographer called Art Rogers over his sculpture A String of Puppies. Koons had asked his carvers in Italy to turn a postcard of puppies into an edition of three large wood carvings. The postcard used an Art Rogers photograph. He sued and won; Koons appealed and lost.
The Warhol estate has been sued over a photograph of flowers that the artist turned into a screenprint. It was settled out of court, as was a case against Robert Rauschenberg - who has stopped using found images in his paintings as a result. David Salle has also been sued. In the words of Jeffrey Deitch, New York's slickest contemporary art connoisseur: "If these copyright laws had been applied from 1905 to 1975, we would not have modern art as we know it."
All the copyright disputes I have traced have been brought by photographers. Artists are apparently more magnanimous about other artists recycling their images; they don't demand a slice of the action. In the American cases, famous artists were sued by little-known photographers who clearly felt they should get a slice of the big boy's action if he was going to pinch their visual ideas. With Pusenkoff, it is the other way round: the little-known artist is being sued by the famous photographer.
Newton's motivation must remain unknown, since he is not prepared to talk about it. But it's more than likely that this episode is a defensive extension of his struggle against the plagiarism of other photographers. Last autumn Liberty's, London's famous Regent Street store, launched an advertising campaign using identical photographs of a fashion model clothed and naked. The idea was taken from Newton's 1980s series called Naked and Dressed. The advertisements were withdrawn, but the dispute is not yet settled.
Meanwhile, Power of Blue has been purchased for 16,000 Deutschemarks (about pounds 8,000) by Hilmar Hoppe Ritter, owner of Ritter Sport chocolate. His chocolate bars differ from all others in being square rather than rectangular, so he is forming a collection of paintings in which squares are a prominent feature. The attraction of the painting to its new owner was thus the yellow square borrowed from Malevich, rather than Newton's nude. !Reuse content