Art and Money

Warhol's US dollar bills were sold for more than their denominational value; and Duchamp paid his dentist's bill by drawing a 400F note which was accepted in payment.

What do you think of the new £5 note? Not a lot? Too small, insipid colours, silly portraits, even sillier watermark; sensible metallic strip, decent – albeit inaccurate – line-drawing of the Skerne Bridge? Not so much an inspiration as perhaps a provocation to visual artists to do better, if they are at all interested in such subject-matter – for the purposes of making work, that is.

There is, of course, a traditional link between makers of visual art and money. Original work has been highly valued in the market-place for centuries; as against reproductions on which society has traditionally placed a lower value. And artists have always used their works to barter or exchange for materials, goods and even services (up-market American lawyers' offices are adorned with works given in settlement of fees for services rendered to contemporary maker-clients). 20th Century artists have paid particular attention to art and money. Duchamp and Warhol each questioned whether the 'hand of the artist' mattered or whether the true value of art lay elsewhere: Warhol's US dollar bills were sold for more than their denominational value; and Duchamp paid his dentist's bill by drawing a 400F note which was accepted in payment. In 1987, JS Boggs was prosecuted at the Old Bailey for contravening the 1981 Forgery and Counterfeiting Act by reproducing English £10, £5 and £1 notes which he had hand-drawn with coloured pencils. The jury took fifteen minutes to reach a unanimous not guilty verdict, accepting his defence that he was not a criminal, merely an artist pursuing established traditions: deliberately using the 'hand of the artist' to interpret something – a banknote – which was itself a reproduction in mass quantities; and bartering or exchanging his works in order to pay for goods and services (sometimes receiving real currency as 'change' in such transactions). Of course Boggs was neither forger nor counterfeiter: But was he a copyright infringer?

Copyright law then (as now under the 1988 Copyright, Designs and Patents Act) made it an infringement (of the copyright owner's exclusive rights) to reproduce without authorisation. Boggs, by his own admission, made free-hand drawings of English Treasury Notes, the copyright in which was owned by the Governor and Company of the Bank of England; furthermore (and contrary to popular misconception) copyright law does not require proof that the unauthorised 'reproduction' is an exact or slavish copy of the original – merely that it substantially carries the images of the original so that 'any fool' can see that the later one has been taken from the earlier one. So, why was not Boggs sued by the Bank in the civil courts from infringement of their copyright, and ordered (by court injunction) to stop unlawful visual art activity, particularly if it would have been that simple for the Bank to have succeeded?

The true answer to this question is not known. Perhaps someone in the higher echelons of the Bank of England decided that criminal prosecution of Boggs was at least as easy (though hardly as simple as nipping down to the Law Courts in the Strand for a quick injunction), just as likely to succeed, and as appropriate a remedy. In fact, Boggs was half expecting a civil writ whilst awaiting to stand trial at the Old Bailey, we understand. So why the heavy-handed approach? One theory at the time was that since Boggs was a foreign national – a US citizen – he might have been able to evade copyright actions against him if he had carried on his work (using English Treasury Notes) from abroad. That is to say, in countries whose copyright laws require the international © symbol to be endorsed on works before any copyright owner can bring an action to prevent infringements in that foreign jurisdiction. The US was (still is) such a country (as is the USSR and many others, mostly non-European, states). Since English currency has traditionally not carried the international © symbol, perhaps that was partly why the Bank of England did not consider it appropriate to bring copyright proceedings in the UK courts.

Until now, this partial explanation has really not held much water, because the Bank could still have succeeded against Boggs under UK law, which did not then (and still does not) require proof of the international © symbol's endorsement on original copyright work in order to succeed in infringement proceedings against copyright abusers here.

Take another look at the new £5 note: '© THE GOVERNOR AND COMPANY OF THE BANK OF ENGLAND 1990' is printed on both sides of the note in the bottom left-hand corner. A unique occurrence in the history of English currency; and an original contribution to the historical lineage linking art and money. Why? We asked the Bank of England and were told that the Boggs case certainly 'focused their minds' on the question of reproductions and artistic use of their images. This must be Bank-speak for 'Yes, we got it wrong; and, yes, Boggs caused us to change the graphic content of our notes'. By incorporating the requirement (of the Universal Copyright Convention) for the international © symbol, the Bank clearly has an eye for foreign – but clearly not domestic – infringers, and is merely covering all the angles (1992, ERM, the ECU, and all that perhaps?). Maybe the Bank is still truly worried about Boggs and his activities. The last we heard, he was alive and well, still making money works and surviving through exchange and barter of them – overseas.

As for UK-based artists and designers contemplating using English currency imagery, beware. The Bank has issued a set of guidelines for reproducing notes (obtainable from their Issue Office). They cover advertisements and illustrations for educational purposes and are principally aimed at:

  • ensuring that reproduction cannot be used to defraud the public;
  • protecting the context in which the notes are reproduced, especially if the Queen's picture is distorted or shown in offensive surroundings;
  • and warning that prior consent is needed from the Bank.

Criteria are also laid down dictating size, and situations where a 'specimen' stamp must be used. Most importantly, the Bank will not allow reproductions on articles for sale, listing mugs, ashtrays and tea-towels; not artwork-yet. The Bank of England policy, therefore, still fails to address the question of artists using images of their banknotes in art works. This is surprising, in the light of the Boggs case.

On enquiry, the Bank did say that they did not foresee taking copyright actions in this country or abroad. However, Boggs had established a precedent, the logic of which may be difficult for the Bank to avoid; and it is easy to foresee a scenario where press coverage of an artist's work forces the Bank to follow through its general censorship policies by exercising its rights as copyright owner – in the civil courts. Conversely, the Bank may consider that its new and bold statement of copyright will deter artists from tempting to cross the line – a red rag to a bull for some, not doubt opening up the possibilities of a Boggs-type exercise in freedom of expression, and taking on the establishment to boot. Before, during and immediately after the Boggs' case, his lawyers pressed the Bank to engage in discussions with a view to creating specific guidelines for artists. It was Boggs who initially wrote to the Bank seeking their permission and help in carrying on his work lawfully, drawing his work to their attention and, perversely, brought about his own prosecution. The rest is history, legal and art historical, it seems. Nevertheless, the Bank still needs guidelines for artists who want to use such imagery. We hope they emerge 'ere long.

© Henry Lydiate with James Odling-Smee 1990

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.