djfrosty

Imagine your 12-year-old son walking into your office and seeing an old photo of his mom with some other man’s name splashed across her forehead and saying, “That really makes me feel yucky inside.”

That’s what artist Jill Miller says happened to her when she discovered that controversial singer Ariel Pink had used an old, unpublished photo of her from the early 2000s on the cover of his 2006 album Ariel Pink’s Thrash & Burn. The collection’s cover art features “Ariel” scrawled across Miller’s forehead in all-cap red letters and the word “Stinks” snaking down her left side of her face.

Naturally, Miller — an assistant professor at the University of California-Berkeley and active gallery artist — turned unauthorized appropriation into appropriation-ade. She is now selling a 50-piece NFT collection (to be followed by a coffee table book) of fake album covers entitled Ariel Stinks, in which she re-imagines the singer in a hilarious series of scenarios that, frankly, stink.

From Ariel as a garden gnome wearing a dunce cap to an image of him as a blobby spinning instructor, a sad-eyed clown, a piñata, a roll of toilet paper (not to be confused with a glum Ariel on the can) and a petri dish of bacteria, the images put a tongue-in-cheek, tilted spin on the project’s title. If none of those grab you, there is also Ariel holding a skunk, working at Walmart and as a TSA agent — and, naturally, attending a riot (more on that later). Long story short, Miller had a blast using artificial intelligence software to send up the singer.

“I originally found out because a student said there was an album cover with a girl who looked like me,” Miller tells Billboard about discovering what she believes is the unauthorized use of her image on the album. The set was originally released through Germany’s Human Ear Music in the early 2000s, and then reissued in 2013 — both times, she says, without her consent for the use of the image. “And when I saw the photo I was surprised — it was probably taken 20 years ago — and it really surprised me that nobody told me about it.”

Here’s the thing: Miller says she doesn’t know Pink (born Ariel Marcus Rosenberg), had never heard his music and could not recall ever running into him in Los Angeles during the time she believes the picture was taken. After discovering the cover during the pandemic lockdown, Miller says at first she was merely annoyed, wishing that Pink had just asked for permission to use the snap.

The artist provided Billboard with a screen shot of a text exchange with Pink from August 2022 in which she directly asked the singer how the image ended up on the cover, with Ariel suggesting it came from a fellow artist who went to grad school with Miller.

Not quick to cry lawsuit, Miller did however remember that in 2011, Vampire Weekend and XL Records settled a multi-million dollar lawsuit with model Ann Kirsten Kennis — who claimed a photographer had forged her model release for a Polaroid of her that appeared on the cover of the band’s Contra album. She does not, however, believe that that is what happened in this case.

“But I was also thinking, ‘Ariel Pink is not Vampire Weekend,’ and if someone said I could get you [a] $2 million [settlement] or an art piece, I’d take the money,” she says she initially thought. Before long, though, without any clear sense of how she became a cover model — wearing red lipstick, no less, something she would never do in the guise of her late 1990s chat room persona — Miller opted to stay in her lane and create art instead. Besides, given the recent story arc of Pink’s career, responding with creativity and attitude felt like a much better plan.

Pink’s heel turn

In Dec. 2022, Pink teamed with former Mumford & Sons member Winston Marshall for the politically charged holiday song “Rudolph’s Laptop,” which took aim at first son Hunter Biden’s 2020 laptop controversy, a frequent focus of Pres. Biden’s conservative antagonists. The pair promoted the song on right wing Fox News commentator Tucker Carlson’s show.

It was the latest provocation from Pink, who was removed from his record label’s roster in 2021 following his attendance of the January 6 insurrection. Mexican Summer announced its decision via Twitter, writing, “Due to recent events, Mexican Summer and its staff have decided to end our working relationship with Ariel Rosenberg AKA Ariel Pink moving forward.” In addition, in January 2021, Pitchfork reported that Pink was denied a civil harassment restraining order against his ex (and former bandmate), who he claimed was attempting to blackmail him over her claims that he had physically and sexually abused her; Pink has denied those claims.

“I didn’t want to play into his ‘oh, I’m canceled’ pity party,’” Miller says of what she saw as Pink’s response to being dropped in the wake of his being photographed on the day of the assault on the Capitol by supporters of one-term president Donald Trump. “I’m a full-time professor, I have two kids and an active gallery calendar… I’m really busy. So I sat on it, and asked a friend if they know an attorney who works with copyright issues.”

Not for nothing, but after Miller announced the project on Twitter on Jan. 10, Pink’s official Twitter account responded, “these are cool” — to which the artist replied, “thanks, they are for sale if you want to invest in 50 future album covers.” A second tweet from Pink mentioned that the album is no longer available and has been deleted from the Human Ear Music website, along with other AP titles.

In an email response to questions about the controversy, Pink confirms that he and Miller have never met and that he had “no role” in choosing the artwork for the album for the German organization now known as HEM. The singer also says he no longer speaks to the label’s director — who he claims was responsible for choosing the artwork for HEM’s releases — and that he no longer considers him a friend.

“It has been many years since we’ve spoken,” he says of his strained relationship with the label boss, Jason Grier, adding that he’s “never seen profits” from the album — and that other than agreeing to allow HEM to release it, he had no involvement in promoting it or choosing a vision for the packaging. “He was a friend who wanted to start a label, asked me if he could release the material in question, and I said sure,” Pink wrote. “That was full extent of my involvement [with] the release.”

In an email response to Billboard‘s questions about the album and the provenance of the cover art, Grier says he “of course” sent the packaging design and tracklist to Pink for approval before production. “He offered overall positive feedback on the artwork and some adjustments to the tracklisting, as well as an artist’s statement and a digital scan of his signature, both of which also appeared on the album packaging,” Grier writes of what he describes as Pink’s hands-on approach to the release.

“The artwork and tracklist were approved by Mr. Rosenberg, who even composed an artist’s statement and authorized the use of his signature specifically for the album’s packaging,” says Grier of the collection. He also says the album resulted in “no profits,” but instead more than $2,000 in destruction costs to the album’s distributor to have it removed from shelves, shipped back to storage and carted to a recycling facility.

As for the album cover, Grier confirms that Pink was seemingly not involved in its choosing, describing it as a, “damaged inkjet print with the words ‘Ariel Stinks’ scribbled over it in magic marker, made by my next-door neighbor at the time.” He says it had been in his apartment for months as part of a “collection of ephemera that came down to me over the years,” adding that its provenance, however, is “beside the point.”

“The problem here is, unambiguously, that I unwisely chose this as the cover art for the release in the first place, and furthermore, without considering the future impact it would have, and for that, I am very very sorry,” Grier writes.

He also notes that he and Pink had, in fact, been in contact as recently as last summer, and that the singer’s ties to the Jan. 6 insurrection had led him to recall and destroy the remaining copies of Thrash and Burn. Furthermore, Grier says Pink contacted him earlier this month in a note he describes as full of “incoherent invective directed towards Jill [Miller] and also, inexplicably, other random artists.”

Choosing draw over law

Miller says she teaches a number of classes in which she asks students to question the nature of art and whether it has the power to make social change and spark conversation, so her natural reaction was to do just that with her Stinks project. Using an AI program, she typed in a few cover ideas and the results, she says, were “pretty fantastic and funny.” And by keeping the format to the square album cover format that could be printed in a 12 x 12 shape, she says the project clearly leans into the parody element.

Miller’s lawyer, California intellectual property attorney M.J. Bogatin, tells Billboard that per copyright law, the image on the cover belongs to whoever took it — which neither he nor Miller have been able to confirm. “There are many ways the image could have turned up or been available or licensed by a legitimate rights holder,” he says. However, since they don’t know who took it, the second legal area he says the dispute falls into is the “right of publicity.”

It is the latter law — which is determined on a state-by-state level versus the federal copyright statues — that Bogatin says he discussed with Miller when they met to go over the legal standing of her Stinks images. Reviewing the series, Bogatin — a longtime volunteer member of California Lawyers for the Arts who, literally, wrote the book on this area of law, Legal Guide for the Visual Artist — says he concluded that an artist’s creative use of an image is privileged and is an exception to the right of publicity, which he did not see in the album’s original use of Miller’s image.

“She absolutely has the creative license to use Pink’s image, to adulterate it the way she has,” he says, explaining that her use of Pink’s distorted image is clearly parody, which falls under the copyright act’s Fair Use exemption that allows artists to comment and criticize public figures.

“Her initiative is brilliant and new on many levels, and does have this legal thread running through it of what you are allowed to do versus what he and [HEM] did, which we believe was illegal,” says Bogatin, who calls the rapidly evolving area of AI rights and litigation the “cutting edge” of creative rights law. “And now we’re into the sphere of what is and isn’t legal in artificial intelligence and machine creation? Is there an underlying image that’s the source that [Pink] could claim copyright infringement on? Not if you understand the algorithm — there are no cases yet — and the copyright office has already issued a proclamation that AI imagery is not subject to copyright.”

Long story short, Miller has no obligation to share any money she makes from the sale with Pink because the use of AI means that, unlike the album cover, there was no specific image she employed as inspiration, but rather an algorithm pulling in unique variables to create a wholly original piece of art. “She chose to draw over the law,” Bogatin says.

“Buy them all!”

“I’m not mad,” Miller says of the emotion behind her image-tweaking efforts. “I think I made a playful, humorous response that is an alternative to litigation. And the ‘smelly’ aspect makes it even better… some are just careers he could consider if music doesn’t work out, like a used car salesman. Plus they’re all for sale, so if he needs 50 future album covers he can buy them all!”

The first group of NFTs in the Stinks project dropped on Friday (Jan. 20) and interested collectors can click here for more information or to check out a free digital album cover to replace the existing one on their digital music platforms. Each cover is being offered for around .39ETH (approximately $630 each at press time); a second drop is planned on Feb. 2.

When asked to clarify an earlier statement that “the whole point is to make me look bad, and have a little fun at my expense,” Pink says Ariel Stinks feels to him like “a prank… a sort of snarky bit of revenge… This person obviously feels like they were exploited and that troubles me deeply, but this is not the way to address that.” In a follow-up email, Grier notes that HEM now clears all its images through Tate London and VG Bild-Kunts Bonn, to avoid any similar issues.

Miller says that the buyers of the NFTs will retain commercial rights to them and suggests that if Pink really wants to make things right, he could buy some, or all, of them to “compensate someone who for sure helped sell your record with her face on the cover.” After all, that way she gets something and he gets something — because as of now, she says, “I got nothing.”

Check out Miller’s announcement and a few of the images below.