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.

Common European Heritage: The French and Dutch Government Joint Acquisition of Two Rembrandt Portraits

*By Ana T. Iacob

“Madame le ministre, Ladies and gentlemen, We hébben ze! Nous les avons! We have got them!’’

— Speech by Dutch Minister for Education, Culture and Science Jet Bussemaker at the official signing ceremony for the Rembrandt portrait purchase

On February 1, 2016, France and the Netherlands jointly acquired two works by Rembrandt van Rijn, the wedding portraits of Maerten Soolmans and his wife, Oopjen Coppit. This joint acquisition, otherwise known as the Rembrandt Treaty, was accomplished through an intergovernmental agreement signed by the French and Dutch Ministers of Culture, becoming thus one of the most expensive sales of Old Master paintings in history. Christie’s Private Sales channel facilitated the acquisition, which totaled €160 million for both portraits.

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Rembrandt van Rijn, Portraits of Maerten Soolmans and Oopjen Coppit (1634)

History of the Portraits

The two oil paintings, completed in 1634, represent the only full-length portraits painted by Rembrandt. In 1878, the portraits moved from the Van Loon collection in the Netherlands to France when they were purchased for the Rothschild Collection. The impending move to France spurred the  Dutch government to attempt to acquire the paintings for the first time in order to prevent them from leaving the Netherlands. However, that did not occur due to the exorbitant price of the works. Accordingly, the portraits remained in the Rothschild Collection in France until 2013, when the Rothschild family announced its intent to sell the pair.

Immediately, the Dutch government saw the opportunity to have both paintings return to their nation of origin: the Netherlands. In an interview with BNR Nieuwsradio, the Dutch Minister for Education, Culture and Science Jet Bussemaker said it would be “very undesirable” if the works were sold to “a rich oil state” instead of returning to the Netherlands. The Dutch parliament feared that if the Netherlands did not secure the works, the two portraits would remain outside their country of origin indefinitely.  

Sale of the Portraits

Both France and the Netherlands sought to individually purchase the portraits. According to Gary Schwartz, art historian and Rembrandt scholar, owning the portraits was a matter of national prestige for both the Netherlands and France. As early as September 2015, both the Rijksmuseum in Amsterdam and the Dutch government negotiated an agreement to bring €80 million to the table each in order to secure the paintings. Triggered by the eagerness of the Netherlands to acquire the works, the French Ministry of Culture, Fleur Pellerin, also offered €80 million to buy one of the portraits, with assistance provided by the Banque de France. According to Pellerin, France was ready to split the works with the Netherlands, even though there were no signs of agreement on the Dutch side and the uncertainty whether portrait owner Eric de Rothschild would even agree to separate the portraits.

The willingness of the Dutch government to massively contribute to the acquisition of the paintings surprised many. Arnold Witte, the head of art history at the Royal Netherlands Institute in Rome, noted that this would be the most expensive acquisition made by a public institution to this day. He further added that, given the current situation, if there is a will, there is a way to provide the necessary money. Indeed, the Dutch government had found a way to fund the purchase of a national treasure in the past: the government acquired Dutch national treasure “Victory Boogie Woogie” by Piet Mondrian in 1998 for 35 million. The public outcry in response to the government’s decision to spend such an amount at one time was widespread.

The desire of both countries to secure the masterworks for themselves clashed with the impossibility to pay the high asking price. A compromise was reached in the form of an intergovernmental agreement between France and the Netherlands, which stipulated that the Netherlands would own Maerten’s portrait and France would own the Oopjen portrait. The intergovernmental agreement further indicated that the works may never be separated from one another. To ensure that the portraits are always together, the pact contains firm provisions according to which the portraits will always be exhibited side by side, alternating between the Louvre and the Rijksmuseum. Both museums also agreed to incur joint responsibilities for the portraits. Furthermore, the agreement also allegedly memorialized the agreement to ban loans of the two portraits to institutions outside the two nations.

From a sequence of correspondence sent between the legal representatives of both parties, it turns out that the joint ownership transaction was supported by three legal documents. The documents included a protocol of cultural cooperation, which is a political document expressing the intent of the parties to engage; the intergovernmental agreement between the two countries; and, finally, the purchase agreement. The French representatives, in the explanations regarding French law, stressed the importance of mentioning that the contracts explain clearly that it is not a joint ownership, but rather a joint responsibility towards the paintings.  

Legal Ramifications of the Joint Purchase

Historically, France has been very protective towards its cultural heritage, as demonstrated by French patrimony laws regarding national treasures. In this fashion, article L 111-1 of the Code of French Heritage defines the notion of national treasure. Cultural assets that qualify as national treasures are works within public collections, historic monuments and those works of major interest for national heritage. If the work passes a set value and seniority threshold, it may be subject to an export license refusal. Accordingly, if an item is older than 50 years and valued at more than €150,000, it may not granted the export license and the work cannot leave the country for a period of 30 months–a period in which the French government or a private patron could raise the required amount to acquire the works. In this case, even though the two portraits satisfied the two national treasure qualification requirements, the export license was granted without even submitting documents for the review of the Advisory Board of National Treasures. The Louvre and the French Ministry invoked “lack of funds” as an explanation for the granting of the export papers, even though some questioned the influence of the Rothschild family on the expedience of the process.

According to French law, the joint purchase by two Museums and subsequent transnational ownership of the works would have been unprecedented and perhaps legally impossible. However, the French government circumvented this difficulty by the separate and individual ownership of each of the portraits by the two governments. Accordingly, the Louvre owns Oopjen’s portrait while the Rijksmuseum owns Maerten’s, which satisfied French acquisition legislation.

Reaction to the Sale

In France, the sale was met with harsh criticism. For example, the French publication, La Tribune de L’Art, had very strong opinion on the matter, and expressed disappointment that the Ministry of Culture and the Louvre did not declare the works as national treasures by 2013, thus making them then available for sale. Had the works been declared national treasure, the sale would have been delayed for 30 months, giving the chance to the French state or a private patron to acquire the works. However, the Louvre and the Ministry explained that even if they would have delayed the sale, it would not have been enough to raise the necessary funds.

Inevitably, Eric de Rothschild, the portraits’ owner before the sale to France and the Netherlands, was also targeted by criticism. La Tribune de l’Art accused him of betraying the spirit of his family’s patronage, going so far as to say that Rothschild “should have honored his name.” In their opinion, even though he had the right to sell the work to whomever offered the highest price, as a great patron of art and as a member of Société des Amis du Louvre, Rothschild should have approached the museum and settled for a price that would have allowed the paintings to remain in the country unconditionally.

   In the Netherlands, the opinion regarding this sale and the decision of the government to pledge such a big amount for the purchase varied. Dutch Parliamentary leader Alexander Pechtold played an important role in securing the Rembrandts. He led the campaign to raise the necessary funds for the sale and received praise for the fact that someone in his position would focus on works of Dutch cultural heritage. Dutch Minister Bussemaker explained that this was an opportunity that would never come again and, as such, had to be seized.

On the other hand, when asked on the street for their opinion, a number of individuals noted that in these times, such a great amount of money, spent at once, seemed excessive.

Conclusion

Joint ownership of artworks by two governments remains unusual and is not without complications. For example, in 2009 and 2012 respectively, two Titian paintings were purchased by the National Gallery in London and the National Gallery of Scotland for $147 million. Now, the status of this duo may be in jeopardy with the recent Brexit vote. Shared ownership of works, however, can be applied on smaller scales. Dual ownership of videos is occurring more often because it is logistically easier, such as with the joint acquisition of The Clock (Christian Marclay) by the Tate, the Centre Pompidou and the Israel Museum.

Although the examples above demonstrate other instances of dual acquisition, the joint purchase of the Rembrandt portraits is outstanding for a number of reasons: first, due to the record amount paid for the art by two nations and second, due to the unusual ownership arrangements between them. Pooling together extensive economic and political forces, both countries successfully secured two European masterpieces. It is unclear whether potential buyers of related artworks in the future will be able to use this dual acquisition model to guide their dealings, as the circumstances surrounding the Rembrandt portraits’ creation and ownership are unique in their own right. If nothing else, one positive outcome of the two nations cooperating is the the fact that for the first time in a long period, the portraits will be publicly displayed. Sales taxes, if any, seems to be owed exclusively to the French government.

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*About the Author: Ana T. Iacob is a jurist living in Amsterdam, the Netherlands. She has a Master in European Private Law from the University of Amsterdam and is interested in art and intellectual property law.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.