Copyright and Originality: Malevich and the American Legacy at Gagosian

Kazimir Malevich - Mystic Suprematism 1920-27

Arthur Danto wrote of  Kazimir Malevich's Black Square:  "We marvel at its originality, not its painterly brilliance."   A great video on the Gagosian website with curator Andrea Crane introducing the work of Malevich and its influence on American artists such as Richard Serra is found here.

The show at Gagosian called "Malevich and the American Legacy" is wonderful, I was fortunate to have a guided tour.   Andrea Crane quotes (I paraphrase) MoMA founder Alfred Barr as saying "Each generation needs recreate its own Black Square."

Copyright does not protect simple geometric shapes like squares.   That does not stop the art world from finding freshness, originality and tremendous value in works such as Black Square.   Which should give us all time to pause and reflect on the meaning of ownership, of originality, and of inspirational conversations had among past, present and future artists.   

Images from the show here.   The show closes April 30, 2011.

More on Suprematism here.

Some cases discussing copyright law's originality requirement here and here.   The US Supreme Court required originality and rejected the "sweat of the brow" doctrine in Feist v. Rural, a case involving litigation over telephone books.

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Fair Use Doctrine Dead? A Fair Use Fridays Moment of Silence for Richard Prince

We gaze in awe at the work of Richard Prince.  This photograph of a Marlboro Man advertisement taken by another photographer broke world auction records for a photograph.  Story here.   You can see that Richard Prince claims a copyright in the photograph that he "appropriated" from Jim Krantz.

My post earlier this week here on Patrick Cariou winning his lawsuit against Richard Prince got the most hits of any post I have ever made on this blog, and in a very short period of time.

The entire contemporary art community will be BLOWN AWAY by Judge Batts' decision denying Prince's use the protection of the fair use doctrine.   This challenges an entire category of art known as appropriation art.

L.H.O.O.Q. by Marcel Duchamp

Others are delighted at Prince's discomfiture.   I am troubled.   Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning.   The urinal of Marcel Duchamp.   The Brillo Box of Andy Warhol.   Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time.   Prince is blatantly stealing.   Plagiarists take the words of others and try to make you believe that they have crafted them.   But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer.  

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it.   When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations.  Things change when the artwork is widely reproduced.  When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value.   Prince's "appropriation" added ten million dollars worth of value to a pile of books.   Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books?   In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up.

From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another?   And if your message is mirror-like, is it less valid?   And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror?

Richard Pettibone's Andy Warhol's Black Bean Soup (1968) (1987)

Damien Hirst Hymn

Vik Muniz, Double Mona Lisa, After Warhol (Peanut Butter & Jelly)

Papeschi's NaziSexyMouse

Or if Prince adds a subtle layer of meaning by decontextualizing the original, so what?  Who is hurt?  When Jacob the Jeweler wants to put extra diamonds on your Rolex, is society really hurt by this?

Brillo shouldn't take the boxes back from Warhol, the Keith Haring subway sketches that were illegal now rightly sell in the galleries, Duchamp probably stole the urinal.    Prince's "thefts" are not so far off those marks.

Here are some of the originals compared with infringements:

Patrick Cariou's reaction?   "Destroying art if you don't like it, that's something you have to think extremely deeply about."  Patrick Cariou to ArtInfo/HuffPost, full interview here.


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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

New York County Lawyers' Art Litigation Institute Now on DVD

Art Litigation and Dispute Resolution Instititute Flyer

I recommend highly a Continuing Legal Education program that I helped to organize on art litigation and dispute resolution - you get 4 CLE credits for ethics and it is HIGHLY entertaining. Many attendees told me that it was the best CLE program they had ever attended.

To purchase the DVD, visit www.nycla.org

Credits: 8.5 MCLE Credits8.5 MCLE Credits: 4 Ethics; 1 Skills; 3.5 Professional Practice; Non-Transitional

Faculty: Matthew F. Bogdanos, Manhattan District Attorney’s Office; Judith A. Bresler, Withers Bergman; John J. Byrne, Byrne Goldenberg & Hamilton, Washington, D.C.; John R. Cahill, Lynn & Cahill; Hon. Miriam Goldman Cedarbaum, US Dist. Ct., SDNY; Sharon H. Cott, Metropolitan Museum of Art; Andrea Crane, Gagosian Gallery; Hon. Stephen G. Crane, JAMS; Raymond J. Dowd, Dunnington Bartholow & Miller; Hon. Laura E. Drager, New York State Supreme Court; Monica S. Dugot, Christie’s; David J. Eiseman, Golenbock, Eiseman, Assor & Bell; Robert J. Feinstein, Pachulski, Stang, Ziehl & Jones; Edward W. Hayes, Edward W. Hayes; Hon. Barbara Jaffe, Civil Court of NYC; Lawrence M. Kaye, Herrick Feinstein LLP; Thomas R. Kline, Andrews Kurth, Washington, D.C; John B. Koegel, Koegel Group LLP; Hon. John G. Koeltl, US Dist. Ct., SDNY; Jules B. Kroll, Jemkroll Holdings; Ralph E. Lerner, Withers Bergman; Dean R. Nicyper, Fleming, Zulack, Williamson, Zauderer; Anke Nordemann, Boehmert & Boehmert, Berlin, Germany; William G. Pearlstein, Golenbock, Eiseman, Assor & Bell; Lindsay Pollock, Art & Auction Magazine; Jan Prasens, Sotheby’s; Hon. Eve M. Preminger, Kramer, Levin, Naftalis & Frankel; Hon. Loretta A. Preska, US Dist. Ct., SDNY; Dr. Lucille Roussin, Cardozo Law; Jay G. Safer, Locke, Lord, Bissell & Liddell; Ronald D. Spencer, Carter, Ledyard & Milburn; Howard Spiegler, Herrick Feinstein; Peter R. Stern, McLaughlin & Stern; Hon. Joseph P. Sullivan (Ret.) Holland & Knight; Nancy E. Wolff, Cowan, DeBaets

Description: One of our finest course offerings from NYCLA-CLE, brings together an unparalleled panel of experts from the bench, bar, museums, art galleries, auction houses, trade publications, appraisers, and insurance companies to discuss the latest legal issues affecting the art community. Specific panels presented included:

Art Litigation and Dispute Resolution: Litigation, Arbitration or Mediation—Considerations for Practitioners Learn how to choose between and among litigation, arbitration and mediation when confronted with disputes concerning pieces of art. Some of the issues discussed by the panel of experts include the advantages and disadvantages of litigation, arbitration and mediation in the art context; how arbitration and mediation can be used more effectively in art disputes; and ways to make mediation more useful in art disputes.

Commencing an Action in Art Litigation: Replevin, Quiet Title, Slander of Title, Injunctive Relief and Statutes of Limitation In art law cases, the use of provisional remedies is neither rare nor usual. Typically provisional relief is sought to prevent a sale or other transfer of art – often because it has surfaced publically for the first time in years. A discussion of the forms of provisional remedies available is provided, as well as illustrative cases involving art law.

Art Lending, Bailments, Consignments, UCC, Liens and Security Interests While Article 2 of the U.C.C. governs an array of issues arising in art transactions, many states, including New York, doubting the sufficiency of the U.C.C. alone to safeguard art buyers, have enacted legislation that in some cases overrides the U.C.C. Learn about warranties, both from a review of U.C.C. principles and legislative and judicial expansions of the protections.

Contemporary Art, Copyright and Moral Rights The United States has reluctantly recognized the moral rights of artists to protect their reputations from harm through adverse treatment of their works of art or misuse of their identity as artists. Non-economic and personal to the artist, these rights exist independently of an artist’s copyright in or ownership of his or her own creation.

Dealing with Artists Estates and Foundations, Dealers, Auction Houses and Museums Experts discuss issues relating to how to deal with artists’ estates and foundations, art dealers, auction houses, museums and the press. Hear how the estate of Andy Warhol was handled, including litigation concerning attorney’s fees; learn about the issues surrounding how a private gallery works with attorneys to avoid and resolve disputes; discover how museums handle dispute resolutions; and find out how the press covers breaking legal stories in the art world.

Art Litigation and Dispute Resolution: Antiquities, Authentication, Provenance, Insurance, Damages, Appraisals and Valuation; Foreign Law and Choice of Law

Buying and selling ancient art requires the prudent purchaser to research the origin and history of ownership of an object and to evaluate the available information in the context of the legal framework discussed by this panel, for potential penalties for the unwitting purchaser of smuggled objects include civil forfeiture and for those who knew or in retrospect “consciously avoided” full knowledge, jail.

Program Co-Chairs: Hon Stephen G. Crane, JAMSRaymond J. Dowd, Dunnington Bartholow & Miller LLPAll Programs include: (1) Affirmation, (1) DVD/CD packet and (1) set of Written Materials TITLE AVAILABLE IN DVD FORMAT ONLY.