More on the San Francisco Mural Destruction

A couple of letters on the subject, each a little curious in its own way.

First, an open letter signed by 400 academics, writers, and artists "oppos[ing] the school board’s decision and the wrong-headed approach to art and to history that lie behind that decision" and "urg[ing] the school board to reverse its decision and take all reasonable steps to preserve the mural …."  It claims the work's "meaning and commitments are not in dispute," namely that "it exposes and denounces in pictorial form the U.S. history of racism and colonialism."  It says the school board "voted to destroy a significant monument of anti-racism. This is a gross violation of logic and sense."  What's unclear to me from the letter, however, is what would happen if the meaning of the work was in dispute?  What if it did not denounce (or did not clearly enough denounce) the U.S. history of racism and colonialism?  Would the signatories still believe it was wrong to destroy it?

Next, a letter to the editor of the New York Times by the president and vice president of the San Francisco Board of Education, which voted to destroy the mural.  Their argument is straightforward: they say the work "traumatizes" students and therefore should not be "allowed to remain."  Here the curious part comes at the end:  in response to Times columnist Bari Weiss's question "What happens when a student suggests that looking at photographs of the My Lai massacre in history class is too traumatic?," they say this "false-equivalency argument is malarkey."  But then the letter just … ends.  It doesn't explain why it's malarkey, how the two cases differ.  It's as if the letter was cut short for space.

"Horton — whose health declined during the past 10 months, according to her son, Bill Page — never sold the painting. Over the years, she declined $2 million from an art dealer and $9 million from a collector."

Teri Horton, of "Who the $&% Is Jackson Pollock?" fame, has died.

Update on the Cady Noland Lawsuit

Here.  Background here.

"The last lawsuit in the Knoedler fakes scandal is close to being settled"

Story here.  It's this one.

"In the end, the court found that the work looks like a Warhol and should thus be protected by fair use. This ruling would seem to indicate that a famous artist with a known aesthetic can more easily claim fair use than a lesser-known artist ...."

A critique of the recent Warhol fair use decision at Above the Law.

"In Boon for Art Authentication Committees, Judge Rules in Favor of Glimchers in Long-Running Agnes Martin Dispute"

Artnews story here.  This was round two in the case.  In April of last year, the Court dismissed the complaint but gave the plaintiff permission to replead, which they did.  Now the same Judge has dismissed the amended complaint, on similar grounds.

It's definitely a boon, but how boony is unclear.  As I said after round one:

"While it's certainly good news for artist foundations, keep in mind it's one decision by one lower court (which will probably be appealed*).  The best part of the decision for those folks is that the court enforced the legal fees provision in the plaintiff's agreement with the authentication committee:  the next person contemplating bringing such a suit will have to think about not just the possibility of losing, but also of having to pay the foundation's legal fees if they do.  (But given the existence of these clauses in the first place, that's probably something they should have been thinking about all along.)"

*/  In fact, the plaintiff's lawyer told Artnews they do plan to appeal.

More on the Warhol Prince Decision

Artnet's Sarah Cascone here.  Goldsmith says she will appeal.

Michael Madison wonders if there is a "third, less radical interpretation [in addition to the two I mentioned here], which relies on a hypothetical 'what would a reasonable person think?' standard vs a hypothetical 'any plausible reading/viewing is reasonable' standard?"

Rebecca Tushnet says "'may reasonably be perceived' has been the test (at least for parody) since Campbell--neither this judge nor the 2d Circuit made it up--and it makes sense for all forms of meaning-transformativeness, not just for the subcategory of parody, as both 2d and 9th have recognized."

She also thinks the case should have been decided on substantial similarity grounds, without ever having to get to fair use:  "this case illustrates ... that courts are more comfortable with fair use than they are with a true infringement inquiry (did the defendant copy too much protected material from the plaintiff?) when the real problem with the claim is that the defendant copied without taking very much, if any, protected material.  ... If we were really concerned that transformativeness has gone too far … then one way to deal with that problem would be to take infringement more seriously rather than using fair use as a clean-up tool."

Cady Noland's Lawsuit Was Dismised in March

I don't think I saw any coverage of this anywhere, but it's been brought to my attention by a loyal reader that Cady Noland's latest copyright lawsuit was dismissed a few months ago -- not on the merits, but on territoriality grounds:  because "all of the conduct underlying the Copyright Act violations alleged by Noland -- including Defendants' 'destruction' of her original work, their 'copying' of that work by replacing all of its wooden logs, their continued display of the 'copied' work, and their efforts at effectuating a sale of the 'copied' work—are alleged to have been performed by Defendants exclusively in Germany," the U.S. Copyright Act did not apply.  The opinion is here.

Robert Indiana News

A couple of developments this week:

One, a decision on several preliminary motions regarding the various claims and counterclaims in the federal lawsuit over his work.  Story here.  Opinion here.  Good luck sorting it all out.

And two, Indiana's "former caretaker," Jamie Thomas, filed suit in state court in Maine "aimed at forcing the estate to pay his legal bills," which he says are already over $2 million.  Story here.

Background here.

"Andy Warhol’s ‘Prince Series’ Is Fair Use, Court Rules"

AP story here.  Opinion here.

On summary judgment, Judge Koeltl ruled that "[e]ach of the Prince Series works may reasonably be perceived to be transformative of the Goldsmith Prince Photgraph. … [H]er photographic work centers on helping others formulate their identities … Her photoshoot illustrated that Prince is 'not a comfortable person' and that he is a 'vulnerable human being.'  [Her photograph] reflects these qualities.  Warhol's Prince Series, in contrast, can reasonably be perceived to reflect the opposite. … [They] can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.  The humanity Prince embodies in Goldsmith's photograph is gone."

He concludes:  "In sum, the Prince Series works are transformative.  They 'have a different character, give Goldsmith's photograph a new expression, and employ new aesthetics with creative and communicative results distinct from Goldsmith's.' See [Prince v. Cariou], 714 F. 3d at 708.  They add something new to the world of art and the public would be deprived of this contribution if the works could not be distributed."

I think there are two ways to read the decision -- one as a kind of non-event and the other as quite radical.

The non-event perspective is this Judge saw this particular use as transformative.  If you put the same facts before another judge -- one who somehow missed Prince's transformation from vulnerable person to larger-than-life figure -- the result could very easily have gone the other way.  On this reading, there's still no way to have any confidence about how any given fair use case will be decided.

The more radical reading would emphasize the weight Judge Koeltl (quietly) puts on the words "reasonably perceived."  That is, he sets the table for his transformativeness discussion by saying "the Court must 'examine how the [Prince Series works] may "reasonably be perceived" in order to assess their transformative nature'" (quoting Prince v. Cariou quoting the Supreme Court's Campbell decision).  From there, he then goes on to talk about, as I mention above, how the Warhol works "may reasonably be perceived" -- i.e., not that it's the only way they may be perceived, or even the most persuasive way they may be perceived.  Just that it's a reasonable interpretation of the work.  On this reading, as long as you can make a reasonable, good faith case that your work is transformative (even if there are other interpretations in which it's not), it's fair use.  I have no idea if that's what Judge Koeltl intended here, but if that became the new test for transformativeness, that would not be a non-event.  It would be transformative.

Brian Frye says it's the "[r]ight outcome, but if the excerpt is any indication, I'm not thrilled about the analysis. I don't love the idea of judges playing art critics any more than Holmes did."

Kevin Casini agrees:  "This analysis seems to hinge on an EXTREMELY subjective understanding of an artist's works and I suspect this judge is an art aficionado/collector. No thanks."

"Evidence against the suspects includes paint on their clothes, spray cans, eyewitness accounts and surveillance footage."

7 People Charged In Connection With Vandalism Of "The Bean."

"Those in favor of covering the murals have said some of the images are offensive to various groups."

The New York Times reports that "the San Francisco Board of Education voted unanimously this week to cover a series of murals at George Washington High School that includes images of a dead Native American and slaves at work."

Somehow it will cost between $600,000 and $845,000 to cover them up.

Times columnist Bari Weiss is not amused:

"The implications of this logic are chilling. What happens when a student suggests that looking at photographs of the My Lai massacre in history class is too traumatic? Should newspapers avoid printing upsetting images that illuminate the crisis at the border, like the unforgettable one of Óscar Alberto Martínez Ramírez and his 23-month-old daughter, Valeria, facedown, drowned in the Rio Grande?  All are fair game for censorship in a worldview that insists that words and images are to be judged based on how 'safe' they make people feel."

Michael Kimmelman concurs:  "This is so appalling, a school board so shockingly reactionary, repressive and idiotic in the name of 'protecting' students that you wonder if its next move will be to burn books."

As does Charles Desmarais:  "I dread the day when another, and then another group or individual sets out to question a work of art in the public realm, not in the spirit of criticism and learning but to permanently deny us all the opportunity to judge for ourselves. I fear a time when nothing but the commercially sponsored and the innocuously peripheral make up our visual environment. Then we all will live in a poorer city, and the censors will know they were the cause."