Building an Anthology from Ephemera: The Legal Issues of Constructing a Political Art Archive

By Scotti Hill*

INTRODUCTION

Predating the advent of words, images have long served as an elemental tool of communication, working to describe and persuade. As the modern era’s complex political systems galvanized and alienated large masses of the globe’s population, the combination of image and text has forged a new path for the rapid dissemination of ideas. In response, political protest manifested into artistic expression, a form preferable to violence.

Attempts to preserve artifacts from political protests have been undertaken with renewed urgency. From the fight for democracy in East Asia to socio-economic and racial activism in the United States, urban areas are drowning in visual and textual evidence of dissatisfaction, reminders of the angst of political alienation. Over the past several years, political events and tragedies have also mobilized archivists hoping to preserve the emotional and historical potency of movements’ artistic output.

Spontaneous graffiti, posters and artifacts have accompanied large systematic protests, such as Occupy Wall Street and Black Lives Matter, raising concerns about the effectiveness of unauthorized artmaking. In Paris and New York, items gathered in the aftermath of terrorist attacks were collected with a sense of emotive resolution. The ephemera of political activism for these protests-posters, makeshift sculptures, graffiti, installations-have been cautiously assembled in archives. Building upon a recent New York Times commentary that investigates the increasing frequency of artifacts archives across the globe, this article explores the legal issues accompanying the preservation of political art, including how copyright, trademark, nuisance, First Amendment and vandalism claims can complicate the already murky notions of artistic authorship in political protest art.

Copyright: Is Political Protest Art Protected?

Copyright defines the possession of an exclusive legal right to literary, artistic or musical material. Normally, the creator retains copyright despite a change in ownership of the physical object. The government retains the copyright to public artworks it commissions, although under the Visual Artists Rights Act (VARA), artists can still enjoy certain protections for state owned works, including preventing the work’s destruction or removal from the site in which it is placed. As the first federal legislation of its kind, VARA effectively grants artists a moral right to protect their creations. VARA does, however establish criteria for what creations are protected, including original and exclusive works crafted from media such as paintings, photographs, sculptures and drawings.

The U.S copyright law is designed to protect intellectual property from being improperly appropriated, exploited and disseminated by third parties. U.S. copyright law’s fair use exception allows for reproduction in cases of educational commentary, criticism, reporting or teaching. In determining fair use, the individual or organization seeking to reproduce the image must articulate the underlying philosophical purpose accompanying the image and take care to not impede the original work’s potential marketability.

Generally, copyright protection for an artistic creation is broad, covering any work of original authorship crafted in a tangible medium that “possesses at least some minimal degree of creativity.” Do temporary or impermanent creations, like those used in political protests, retain the same protection?

Creators of political protest art frequently operate under the guise of anonymity, working to shape or build upon a dialogue. Such items are rarely crafted as art items, let alone designed to be exhibited after the event they are intended to address, shore up or put down. Instead of being cherished in a pristine exhibition space, works are created to be portable and destructible so that they may serve as instruments of a movement, rather than merely symbols of it. Such items include posters that loudly parade the epitaphs of the movement, sculptures symbolizing political ideals, and flyers and pamphlets that participants hand out to eager members of the public.  Most importantly, these items are intended to be shared, to elicit a desired reaction in furtherance of the larger philosophy for which they serve. The disposability of such items negates the care and attention paid to traditional artworks, decreasing the incentive to protect item through legal means. With the foregoing logic in mind, it’s seemingly unlikely that creators of political protest art can assert robust copyright protection for works not intended to survive beyond a certain event. As it stands, the record is silent on the issue of artists seeking copyright protection for works used in political protests, yet the advent of protest artifact archives may bring this once ancillary issue front and center.

Ferguson, Street Art and the Politics of Anti-Institutional Artmaking

The 2014 death of Michael Brown rendered Ferguson, Missouri a hotbed of political and social unrest. In turn, artists and intellectuals resisted a media firestorm that presented the city’s extreme political unrest in a monolithic fashion. In his communal art project, Push Forward, artist Damon Davis pasted images of raised hands in various locations throughout Ferguson. With the permission of local business owners, whose establishments had been boarded up and closed to the community, these stirring images served as visual symbols of collective solidarity. Davis’ works, and many others like it, signal an increasing acceptance of graffiti as art, with more business owners allowing their structures to serve as mediums or ‘canvases’ of expression.

In the 21st century, street artists have seized a growing spirit of dissatisfaction with cultural institutions-namely museums and galleries for which pioneering Land Artist Robert Smithson deemed “mausoleums of culture.” Now, art forms such as graffiti bring art directly to the people, and while the last decade has ushered in an unprecedented degree of cultural acceptance to the medium that was once dismissed as vandalism, this arena is still abound with legal issues such as nuisance. 

As a common law tort, nuisance claims can be either public or private, and, arise from unauthorized and inappropriate uses of one’s property. Often, nuisance claims aim to reverse the tortfeasor’s action, which has affected the property’s value or the owner’s reasonable use of land. The illegal placement of graffiti has served as a logical iteration of nuisance, with the art form existing as a literal defacement of property-regardless of aesthetic value or societal appreciation.

Still other forms of political artmaking evoke public nuisance claims, raising concerns about the viability of art rooted in illegality. VARA’s protection of public artworks is contingent on whether or not the work is of “recognized stature.”  In affirming a legal standard for unsolicited street artworks, English v. BFC&R E. 11th St LLC held that VARA fails to protect illegally placed graffiti. While not all graffiti is protest art, its ongoing popularity attests to the viability of public avenues of expression. Like many of history’s most daring and thought-provoking artworks, graffiti often dares to confront directly that which would have otherwise remained hidden.

Cataloguing Chaos: Preserving the Evidence of Terrorist Attacks in Paris, New York, and the Occupy Wall Street Movement

In the wake of major terrorist attacks in New York on September 11, 2001 and Paris on November 13, 2015, archivists began the arduous process of cataloguing thousands of items compiled in makeshift memorials throughout the cities. In such events, archivists often struggle with determining the best procedure for both collecting the items and curating overwhelming collection.

In Paris, archivists prioritize letters and drawings above other artifacts, as these items seem to harness most eloquently the human dimension of tragedy. Archivists aim to preserve these artifacts’ emotional potency, what sociologists and intellectuals consider the most telling of the collective experience spurned by the event. The donative nature of these items negates legal concerns regarding ownership, however, preservation-determining the appropriate size of a state archive or who makes these determinations remains.

In contrast to the portable ephemera in Paris, New York’s post-9/11 archivist practices were decidedly more ambitious, relying on both small tokens of grief and large sections of destroyed structures. After the city’s terrorist attack, distorted masses of the World Trade Center were quickly isolated and stored with the intent to preserve. Their sublime presence in the 9/11 museum is emblematic of a cultural reluctance to let go, as if the fragments themselves carry with them a magnetic power to retell the trauma of that day’s human loss.

In addition to terrorist attacks, socio-political insurgencies in the West have catalyzed ambitious archives and databases. From the outset, attempts to document and preserve the Occupy Wall Street Movement were undertaken by sociologists, students and organizers. Archivists have to date thousands of items-posters, signs, photographs and messages-stored in physical and digital venues. The process has engendered a fascinating degree of debate from academics and movement insiders, many of whom question the legitimacy of archives’ underlying narratives.

Starting in 2011, students at New York University’s Moving Image Archive and Preservation Program (MIAP) began collecting items presenting the media coverage of the movement. With the help of MIAP director Howard Besser, the students dubbed themselves “Activist Archivists,” uniting under the principal goal of preserving “the spirit, decentralization, self-organization, playfulness, and whimsy of this protest movement [which would otherwise] be lost to history if the media that documented this did not survive.” The archive’s role as counter of ‘real’ history presents an empowering incentive for the process of collecting, and may well persuade other movements to make similar strides in the future.

Je Suis Charlie

According to the U.S. patent and trademark office, two applications were filed for “Je Suis Charlie,” Paris’ iconic rallying cry following the 2015 Charlie Hebdo attack. Recently, the Washington Post proffered a commentary on the increasing frequency by which private individuals and businesses have applied for Trademarks in the wake of public tragedies.

As discussed in Dennis C. Abram’s article “Je Suis Public Domain,” opportunists see great economic potential in creative output, such as slogans that encapsulate the essence of collective spirit following great tragedy. Such attempts are rarely, if ever, legally recognized. U.S. law dictates that a trademark must have some connection to a good or service that is being promoted and visually identified so as to distinguish it from other similar products. 

First Amendment and Vandalism: The Case of the Illuminator Art Collective

While material items such as posters, sculptures and pamphlets evoke the classic definition of a political artifact, performance remains an apt medium for the dissemination of socio-political critiques. Inherently uncommodifiable, performance art often prioritizes the immediate interaction of participants involved in political protests over secondary documentation in the form of photographs or videos. Groups like the Guerilla Girls, the famed feminists whose performances spurned valuable dialogue regarding institutional racism and sexism within the art world, have put art activism on the map in recent decades.

Similarly, the New York City-based Illuminator Art Collective (IAC) stages political protests at famous sites such as the Metropolitan Museum of Art and the United Nations Building, where these iconic structures become the conceptual canvas upon which political critiques are projected. Using a specially designed van that holds a projector on its roof, the group projects messages and symbols meant to provoke dialogue and reveal the secrets these institutions are inclined to keep hidden. The group’s tactics reveal a curious relationship between art activism and the First Amendment, as well as how the seemingly universal definition of vandalism must be altered to adapt to new technologies and artistic visions.

The group’s work highlights this fascinating intersection between art activism and law. On September 9, 2014, three members of the group, Kyle Depew, Grayson Earle and Yates McKee, were arrested for unlawful posting of advertisements, when they projected images on the façade of the Metropolitan Museum of Art. The images were critical of billionaire businessman David Koch, who had recently donated $65 million dollars to the museum in exchange for the museum’s public plaza being renamed after him. IAC’s projections were critical of Koch’s environmental stances, namely his denial of climate change. While parked on a public street, the van was approached by a NYPD deputy, who later seized the group’s projector equipment and arrested the three on the charge of unlawful posting of advertisements. Before these charges were formally dropped by a criminal court, the city of New York issued criminal summonses for three members. NYPL §145.30 “forbids unauthorized individuals from posting, painting or otherwise affixing to the property of another person any advertisement, poster, notice or other matter designed to benefit a person other than the owner of the property.” The law appears to be an adequate measure in protecting businesses from becoming hosts to unwanted advertisements from third parties. In instances of political protest however, does the projection of commentary on the exterior public space fit this definition? While the city of New York seemed to think so, the charges were ultimately struck down in criminal court, with IAC’s lawyer Sam Cohen rightly pointing out that a streaming projection fails to fit the standard definition of “affixing. ”

It follows that if IAC’s political projections fail to meet the definition of unlawful posting of advertisements; they similarly fail to match the legal requirements of vandalism. Vandalism is defined as the deliberate defacing or destruction of property. While it is clear that plastering a non-affixable projection to the façade of a building fails to constitute destruction, does it deface? Defacing implies the marking of a surface-though not in a severe a fashion as destruction. Therefore, IAC’s unique brand of projector activism exists as a clever exercise of first amendment free speech.

CONCLUSION

As curators and archivists undertake the arduous process of compiling artifacts for physical and digital preservation, many questions remain about the legality and posterity of protest art. What is the optimal manner by which to preserve political or artistic ephemera? Who is best situated to protect artists’ rights to create and capitalize on their own art? What do keepers of protest art see when they preserve or trade in this kind of creative output? While political upheaval and tragedy prompt inflections from diverse global communities, museum archivists and administrators as well as art dealers and collectors look to preserve the artifacts for entirely different reasons. Due to the changing and often unsettled landscape of political protest art, artists and collectors alike may find themselves in need of legal advice to obtain information about available protections and defenses.

Note: This article is reprinted with permission from Entertainment, Arts and Sports Law Journal, Summer 2016, Vol. 27, No. 2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.

About the Author: Scotti Hill is a J.D. Candidate, 2018 from the S.J. Quinney College of Law at the University of Utah. She served as a summer 2016 intern for the Center for Art Law, and she can be reached at scottiaustinhill@gmail.com.

Case Review: Foster v. Svenson (2015)

arne-svenson-neighbors-3

Arne Svenson, “The Neighbors, # 3” (2012)

By Christopher Visentin*

Following up on a remarkable decision from 2013, this April 9th the New York Appellate Division of the Supreme Court affirmed the Supreme Court’s dismissal of a family’s right of privacy claim in favor of an artist’s freedom of expression.

Two years ago Matthew and Martha Foster filed a complaint alleging breach of privacy against photographer Arne Svenson after learning that they, as well as their two young children, were subjects of Svenson’s series of photographs entitled “The Neighbors”.  For the series, Svenson used a camera with a telephoto lens to capture images of inhabitants of a glass apartment building across the street from his own apartment. Svenson took the photographs without knowledge or permission of his subjects. The Fosters learned of the images through a local publication promoting the exhibition of the photographer’s most recent works.

In 2013, the Supreme Court of New York granted Svenson’s motion to dismiss Fosters’ claims for injunctive relief and damages for emotional distress. Justice Rakower found that the First Amendment protects Svenson’s photography and artistic expression. Therefore, defendant’s conduct was deemed not actionable under the current New York privacy laws. (See Center for Art Law reporting from July 21, 2013 and August 11, 2013.) Fosters appealed.

Last month, on April 9th, the Appellate Division agreed with the lower Court’s decision. Justice Renwick, in her opinion for the Court, noted that under the New York law newsworthy events and matters of public concern have long been exempted under the privacy statute. Justice Renwick also noted that courts have extended this exemption to literature, films, and theater. It follows, she wrote, that the exemption should likewise extend to other forms of artistic expression, here, photography.

But the exemption for newsworthy events and artistic expression is not absolute; Justice Renwick noted that images used for “advertising or trade purpose” do not deserve exemption from the privacy statute. She made clear, however, that even though the Fosters saw the images in a notice promoting the exhibition, and even though Svenson might profit from the images he created, the promotion of the exhibition and any financial benefits relate to the art itself, and therefore the images are not used for “advertising or trade purpose” under the meaning of the privacy statute.

The decision places much importance on protecting freedom of expression, even when the expression constitutes what many people would feel is a clear invasion of privacy. Justice Renwick recognized this tension in her opinion, but she found that the invasion of privacy has to be much more outrageous to weigh against the court’s tendency to protect the public’s interest in the free flow of ideas. Barring such outrageous conduct, it seems that arts and artists enjoy a significant amount of liberty to create and display their art, even when such expression might violate other’s perceived rights, whether they live in glass houses or not.

Justice Renwick acknowledged that some may find the outcome troubling, however, when she stated, “Many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature.” Foster v. Svenson, No. 03068, slip op. at 7 (N.Y. App. Div. Apr. 9, 2015). It may not be surprising, then, when this issue receives more attention in the future.

Note from the editors:

IMG_20150528_184951

Center for Art Law Mixer at Sundaram Tagore Gallery (May 28, 2015).

On May 28th, Center for Art Law hosted its latest Art/Law Mixer dedicated to photography and the law at Sundaram Tagore Gallery in New York City. In light of the gallery’s exhibition of large-scale silver gelatin prints by Brazilian photographer Sebastio Salgado, the discussion for the evening centered around recent photography case law and its affect on the art and legal worlds. Special guests for the evening included Paul Cossu (Cahill Partners) and Nancy Wolff (Cowan, Debaets, Abraham, and Sheppard LLC). Paul discussed the case his firm handled, Sobel v. Eggleston (2013), where a collector claimed that his limited editions of Eggleston photographs were harmed by the photographer’s later production of prints of the same images in different size and medium. Nancy, attorney for Arne Svenson, the photographer featured in the case review above, discussed her experiences advising and representing Svenson in court. She indicated that case law has evolved and new photography law textbooks may be in order.

Sources:

About the Author: Christopher Visentin is a rising third-year law student at Boston University, where he concentrates his studies on intellectual property law, art law, and law and literature. He is also pursuing a master’s degree in English literature at Boston University.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers are not meant to act or rely on the information in this article without attorney consultation.

California Court Rules that Chalk Art is Not Vandalism

Screen_Shot_2013-06-23_at_8.58.37_PM_t500x393

Jeff Olson, caught on security camera, outside a San Diego Bank of America.

In July 2013, a California jury dismissed vandalism charges against Jeff Olson for writing in sidewalk chalk on the outside a San Diego Bank of America.  Olson was acquitted on July 1, 2013 of all thirteen counts of vandalism, which could have resulted in thirteen years in prison or fines of $13,000.

Olson was arrested after he wrote adverse statements aimed at Bank of America on the sidewalk at several of its locations. His artwork included statements such as “NOT THANKS, BIG BANKS,” accompanied by drawings of an octopus reaching for dollar bills.

Bank of America’s Vice President, Darrell Freeman, complained to the Deputy City Attorney and the San Diego Gang Unit, which ultimately lead to the vandalism charges.  BoA claimed that it cost them $6,000 to remove the chalk drawing.

As part of his defense, Olson claimed that his chalk art was an expression of his First Amendment Rights.  However the Judge, Howard M. Shore, disagreed and refused any mention of the First Amendment in the proceedings, pointing out that the State’s Vandalism Statute (Penal Code section 594s) does not mention an exception for First Amendment rights.

Unknown

Jan Goldsmith, head of the San Diego attorney’s office.

There is a strong case precedent for Judge Shore’s decision including the the strangely similar case of MacKinney v. Nielson in 1995. In that case, Christopher MacKinney was arrested in 1992 by Sargeant Nielson for writing, “A police state is more expensive than a welfare state- we guarantee it.”  The federal Court of Appeals ruled that the police lacked the probable cause to arrest MacKinney.

The San Diego attorney’s office, headed by Jan Goldsmith, released a press statement in favor of the decision: “The defense is trying to make this case into a political statement, which it is not.  This is just one of some 20,000 criminal cases that are referred to us annually by the police department.”

ChalkGate

The vandalism charges against Olson has sparked “chalk-ins” across the country.

Following the jury’s July decision, Goldsmith responded: “Graffiti remains vandalism in the state of California . . . . Under the law, there is no First Amendment right to deface property, even if the writing is easily removed, whether the message is aimed at banks or any other person or group.  We are, however, sympathetic to the strong public reaction to this case the jury’s message.”

The incident has inspired “chalk-ins” across the country.

Sources: “Chalk Activist Triumphs over Big Bank,” Hyperallergic, July 1, 2013; “Not guilty verdict for San Diego chalk protestor,” Salon, July 1, 2013; “Chalking the plank: Judge won’t allow bank protestor to claim first amendment rights,” San Diego Reader, June 25, 2013; MacKinney v. Nielson, 69 F.3d 1002, 1004 (9th Cir., 1995).

Is Body Art Free Speech?

Tattoos, piercings, and other forms of body art have a long history.  There is firsthand physical evidence of tattoos on a 5,200-year-old frozen corpse, and second-hand archeological evidence that the Egyptians wore tattoos as early as circa 4000 B.C.   There have been body art exhibitions at renowned institutions like the May 2000 exhibition at the American Museum of Natural History in New York Body Art: Marks of Identity.  Today, many think of body art as a form of self-expression if not defiance.  However, body art is not protected speech.
In “employment at will” states, employees can be demoted, transferred, or fired for no reason.  The only limits come from anti-discrimination laws,  meaning employees can be penalized for displaying body art unless the penalty discriminates against a protected group (e.g., race, color, ethnicity, sex, sexual orientation, or religion).
 
If body art derives from religious beliefs or practices, the law prohibits an employer from banning such art at work, provided the employee demonstrates “sincerely held” religious beliefs.  If sincerely held religious beliefs trump a body art ban, and the burden shifts to the employer to make reasonable accommodations if s/he can do so without an undue burden – for example, by providing a uniform the covers questionable marks.
Bottom line: unless an employee can demonstrate that an employer’s ban on body art impacts a protected group to which s/he belongs, the employee has very limited protection for artistic self-expression.

Sources: LEGAL MATTERS: Can Your Tattoo Get You Fired? www.golocalworcester.com

14 Years After Brooklyn Museum v. NYC: Mayoral Candidate Joe Lhota Says He Now Understands the First Amendment

Republican mayoral candidate Joe Lhota speaks out about his
role in the 1999 Brooklyn Museum v. NYC fiasco.

Joe Lhota, NYC mayoral hopeful, is facing tough questions about his involvement in the dispute between the Brooklyn Museum and the Guilani administration in 1999.  As Deputy Mayor, Lhota spear-headed the campaign to close the Brooklyn Museum and cut it’s funding after Chris Ofili’s The Holy Virgin Mary went on display.
In March of 1999 the Brooklyn Museum Board of Directors voted to keep the work on show and Lhota (in attendance as the mayor’s representative) announced that as punishment the City would withhold funding of $500,000. The museum took the City to court.
In a deposition he gave on October 7, 1999 in the case Brooklyn Institute of Arts and Sciences v. The City of New York and Rudolph W. Giulani, Lhota stated that the museum’s lease with the City required that the museum be free to all visitors, and can only charge admission with permission from the mayor.  For this reason, he argued, the City had the right to close the museum and refuse it’s funding.

Chris Ofili, The Holy Virgin Mary, 1996.

The banter back and forth between Susan Buckley, attorney for the museum, and Lhota reveals that the City had misinformation and misinterpreted the information they had.  Lhota admits several times that he did not read entire statutes or documents, but only portions.  When asked why Lhota failed to attach legal references to his affidavit he responded: “I have not read them fully so I’m not sure I’d consider attaching something I hadn’t read.”

In November 1999, Judge Nina Gershon ruled that the city violated the First Amendment.  Interestingly, she noted that Lhota’s testimony convinced her that the city or mayor did not have “veto power over the museum’s decisions as to what to display.”  The museum settled for $5.8 million.

Now on the campaign trail, Lhota is facing new scrutiny.  At a mayorial forum on Tuesday, Lhota said in reference to the case: “Do I regret doing it? Yeah, I regret doing it.  And I regret how embarrassing it was at the time.”  But he affirmed that he still believes that Ofili’s work was offensive “as a concept.”
In March however, The New York Times reported that Lhota had a different demeanor.  Michael Barbaro wrote that he was unapologetic–defending his conduct and motivation.   Lhota is quoted as saying: “I don’t regret the tactics– at all.”
However Lhota decides to “spin” his involvement will no doubt become the focus of more discussion as the election comes closer.  Jack A. Josephson, a former board member at the Brooklyn Museum, advises caution: “He did it once; he could certainly do it again.  If you are a museum person today, you’d have to keep this in the back of your mind.  They all should be worried that they might do something that would offend a Mayor Lhota.”
Sources: “Joe Lhota Regrets Art Wars with Brooklyn Museum during Guiliani Years,” NY Daily News, May 8, 2013; “For Mayoral Hopeful Who Lost Fight to Remove Art, No Regrets,” The New York Times, March 27, 2013.