Postmodern Artwork

Just like the proverbial long wait at the bus stop and then three buses come along at once, there has been a bumper crop of recent illuminating copyright lawsuits involving works by artists as diverse as Richard Prince, Chapman Kelley, and Marina Abramovic.

In 2008 a lawsuit was filed against Prince by French photographer Patrick Cariou, claiming that Prince had infringed his copyrights by using 20 of his photographic images as the basis for a series of 22 paintings entitled Canal Zone. Cariou had made a series of photographs over a period of ten years, during which he captured unique images of Rastafarian people in remote mountain areas of Jamaica, 100 of which were published in his book Yes Rasta, 2000. Prince’s lawyers defended his appropriation and manipulation of Cariou’s images, claiming ‘fair-use’ through his transformation of them (AM 326).

In 2011 the court ruled in favour of Cariou. Prince and his dealer, Gagosian Gallery, were ordered to ‘deliver up for impounding, destruction, or other disposition …. all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, films, negatives, discs and other articles for making infringing copies.’ The court also ordered the defendants to give written notice to owners of the paintings, advising that they are ‘infringing’ works that cannot be ‘lawfully displayed’. Gagosian had reportedly sold (or traded) 15 such paintings for around US $18 million, and had earned around $6,784, for sales of Canal Zone catalogues.

Fair use/dealing is an internationally recognised copyright defence, which has been developed in the US by its Supreme Court to embrace the artistic practice of appropriation of other artist’s images – but only if such borrowing ‘transforms’ the borrowed image into a substantially new image/composition. In Prince’s case, the court said that his transformation had been ‘slight’, and that Gagosian Gallery had ‘at the very least the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses.’ Neither defendant has yet publicly commented on the court’s judgment.

In 2004 Kelley claimed violation of his statutory moral rights before a US federal court, because of the mutilation of one of his public artworks in Chicago’s lakeside Grant Park: Chicago Wildflower Works, 1984 (AM 331). A non-commissioned piece, the planting/installation of which Kelley initially financed and maintained for 20 years, it comprised 66,000sq.ft. of flowers. In 2004 the Chicago park authority replaced half of Kelley’s wildflowers with trees.

Most countries’ laws give their artists the statutory moral right to protect their works against being treated in a derogatory way. Key elements of moral rights lawsuits are that the work in issue is classified as an ‘artistic work’ by copyright law, and has been manifest in a ‘stable fixed’ material form.

At Kelley’s initial trial in 2007-08 the judge said: ‘There is a tension between the law and the evolution of ideas in modern or avant-garde art; the former requires legislatures to [classify] artistic creations, whereas the latter is occupied with expanding the definition of what we accept to be art. While Andy Warhol’s suggestion that “art is whatever you can get away with” is too nihilistic for the law to accommodate, neither should [moral rights laws] be read so narrowly as to protect only the most revered work of the Old Masters. In other words, the “plain and ordinary” meanings of words describing modern art are still slippery.’ And so the court ruled that Kelley’s work was in law a sculpture and also a painting. However, the court awarded Kelley only US$1 compensation. Kelley appealed on the basis that 55% of the work was destroyed and, as it was valued by an independent art market expert at $1.5m, he should be awarded at least US$825,000.

In 2011 the appeal court reversed the initial court’s findings about the legal nature of the work, deciding that copyright law required that an artwork ‘must actually be a painting or sculpture. Not metaphorically or by analogy, but really….. Authors of copyrightable works must be human; works owing their form to the forces of nature cannot be copyrighted … and are not authored or fixed.’

Abramovic’s lawsuit was brought in France against film director Pierre Coulibeuf and producer Regards Productions, who had made two films, The Star and Balkan Baroque, which drew upon her earlier performance pieces. She claimed violation of her copyrights and moral rights in those pieces. The court ruled that Abramovic was joint author of the two 1998 films, together with Coulibeuf and Regards Productions; and that the defendants, though joint authors, had shown the films publicly without the express prior permission of Abramovic, thereby violating her rights in the films. Ambramovic was awarded €50,000 damages for copyright infringement, and €25,000 for violation of her statutory moral rights in her earlier performance works.

An inherent difficulty for law-makers is keeping pace with changes in society. This frequently results in the courts trying to do justice in the contemporary circumstances of specific cases that were never envisaged by legislation enacted years or decades or even centuries beforehand. All three of our artists’ lawsuits are cases in point.

Appropriation Art was developed in the postmodern era. Current US federal copyright laws were enacted in 1976, and so it was court’s task to find a just solution within a legal framework that had been overtaken by changes in art practice and forms.

Land Art is also a postmodern development. Kelley’s wildflowers work was created seven years before US federal law enacted artists’ statutory moral rights in 1991. Kelley’s court had to work within a statutory framework that recognised painting and sculpture as specified art forms entitled to copyright and moral rights protection; but not Land Art. The judge in the first trial exhibited enlightened understanding, and construed the letter of the law as now embracing Kelley’s work. But the appeal court disagreed, and gave a much narrower statutory interpretation. Kelley plans to appeal to the US Supreme Court to seek an enlightened ruling for all US visual artists.

Performance Art, again a postmodern development, has not been embraced by copyright laws as a visual art category. Some countries’ laws do offer copyright protection for performances, but within the category of film works. This appears to be the approach taken in the Abramovic case: the court construed and applied its available legal tools to rule against the films’ director and producer, by focusing on the footage and deciding that Abramovic was a co-author. In this way, Abramovic’s past performances were protected against appropriation without her express prior permission – whether or not they had previously been documented in a fixed material form.

The Abramovic court decision is unsurprising. The longstanding approach of French law, and its judiciary, has been the robust protection of their droits d’auteurs. And especially to rely upon artists’ statements of their artistic intentions, and of what form their work takes.

UK artists are generally less litigious than those in the USA or France, and seldom file lawsuits for violation of their intellectual property rights. Recent UK court decisions are rare, which is why these three cases are so illuminating and instructive.

© Henry Lydiate 2011


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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.