"The pro-appropriation people will say, 'well, Johns is an artist and anything that Johns does is going to be transformative.'"

Said the intellectual property lawyer, quoted in "How did this teenager’s drawing of his knee wind up in a Jasper Johns painting at the Whitney?/A new work debuting in a major exhibition raises complex questions about artistic license and appropriation" (WaPo). 

The teenager, Jéan-Marc Togodgue, had made an anatomical drawing of a knee (because, he says, he wanted to understand an injury to his knee). The artist saw the drawing hanging in Togodgue's doctor's office and copied it as part of a painting. It's painted to look like the original drawing is taped to the painting. 

Johns wrote to Togodgue, "I would like you to be pleased with the idea and I hope that you will visit my studio to see what I have made." 

An artist named Brendan O’Connell — O'Connell's son is friends with Togodgue — called attention to the copyright issue: “This isn’t like him doing the Savarin coffee cup or doing some pop appropriation like I do.... This is somebody’s work that he directly copied."  

In the era of Black Lives Matter, [he] found it particularly offensive that a White artist from the segregated South was using the work of an African teenager in this way.

Togodgue immigrated from Cameroon 4 years ago. 

In mid-July, O’Connell sent Johns a scathing letter. In it, he openly accused Johns of theft and proposed that the artist pay to create a foundation to assist Togodgue and other artists and athletes from Cameroon. 

“Forgive me if you have considered these points and were already planning on doing something significant for Jean-Marc,” O’Connell wrote. “But the optics of the wealthiest and most respected Titan in the art world taking a personal drawing of an African ingenue … well, surely you have turned on the news or read a paper in the last three years.”

We could create a swirl of ugliness all around you. The 91-year-old Johns, who must believe his reputation as a great artist is secure, is suddenly confronted with the prospect that the main thing people will know about him is a racial offense. It's a dramatically threatening letter!

After that, the artist and the teenager came to some agreement, which is undisclosed. 

ADDED: That word in the post title — "transformative" — refers to the basis for coming within the "fair use" exception to copyright law. 

By the way, how did Togodgue make an anatomical drawing of a knee? Did he not copy from some medical illustrator's work? 

The Washington Post headline says the teenager made a drawing of "his knee," but how can that be a drawing of his own knee?! He can't be looking at his own knee cut open. Even if he were awake during surgery, looking at his knee and drawing it, it wouldn't be all opened out like that. Isn't that a picture of the dissected knee of a cadaver?

ALSO: O'Connell is the subject of a 2013 article in The New Yorker written by Susan Orlean, "Walart/A career epiphany in a supermarket": 

That day, something about Walmart clicked... It was the quintessence of the suburban American experience.... After that outing, O’Connell began a Walmart odyssey, visiting stores up and down the East Coast and across the South, photographing the shelves and the shoppers—visits that were punctuated by the store managers invoking the no-pictures rule....

Anything related to Walmart is freighted with meaning.... He keeps the paintings neutral, he says, so that you can read what you want into them. That neutrality is what David Moos, an independent art adviser and former museum curator, thinks is “cogent and disarming” about O’Connell’s work. 

Alec Baldwin, who owns four of O’Connell’s Walmart paintings, said that he loved them as soon as he saw them. “That’s how I grew up,” he told me. “In shopping malls in the sixties on Long Island. The prairie with acres and acres of shit to buy. . . . I know this place.”  

CORRECTION: The lawyer quoted in the post title — Sergio Muñoz Sarmiento — is not Johns's lawyer, but a lawyer "who has has represented both artists and collectors in disputes over intellectual property." So it's significant that he "believes Johns may not have needed permission to use the work." That "may" — in "may not have needed" — means you're going to need a lawyer if you get sued.

Sarmiento also thinks it is important to respect the creative process and to consider the long tradition of artists incorporating ideas into their own works. That can be the urinal presented as art more than a century ago by one of Johns’s heroes, Marcel Duchamp....

“We don’t want to get to a point where artists think I have to get my art vetted by a lawyer before they start the work,” says Sarmiento.

And O’Connell's paintings copy the product packaging, as noted in his distinction quoted above: "This isn’t like him doing the Savarin coffee cup or doing some pop appropriation like I do." It's always amusing when people draw distinctions that put what they do on the good side of the line.