Exhaustive analysis of child pornography legal decisions and 1st amendment rights

Adler, Amy
Type of Workuniversity course outline
SOURCE: http://www.law.nyu.edu/sites/default/files/upload_documents/Outline_-_Fall_2006_-_Art_Law_-_Amy_Adler_2.doc.
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Art Law Outline

Adler – Fall 2006





  • Classic censorship issues – when gov tells an artist what he can’t say
    • Obscenity law – filthy materials that are also “art” are allowed
    • Child pornography law – court has refused to make a distinction between art and other stuff
      • But what about artists who explore child sexuality?
    • Pornography – specifically how feminists have reacted to it
    • Critical race / hate speech – 1st Amend law has traditionally protected racist, hateful speech
  • What is art?  Why is it protected by the 1st Amend?
    • Adler: verbal / textual material has more protection than visual art
      • Looking at photography, dance
    • Attenuated notions of censorship – problems of publicly funded art / public art
      • Culture wars of the 1990s – what is the place of art in a democratic society?  Should gov fund the arts?
      • Self-censorship of galleries and museums – 1st Amend “chilling effect”
        • To what extent does the artist become only one voice, and the curator becomes a 2nd voice with 1st Amend rights / status?
      • Gov commissions and public memorials – including the controversies surrounding memorializing 9/11
    • How should we think about the denial of funding to an artist, from a 1st Amend perspective?  How does the meaning of a work of art change, depending on how it is presented?


Introductory Materials

  • Wrestle with the power of visual representation, as opposed to verbal representation – art as a subset of visual culture
    • Deep connections between speech and identity
      • Stephen Greenblatt piece: awareness of the extent to which identity and speech coincide
        • “To be asked, even by an isolated, needy individual to perform lines that were not my own, that violated my sense of my own desires, was intolerable.”
      • Can extend to art as speech
    • Sometimes attribute an irrational power to visual imagery – what is it about the visual that is frightening or magical?
      • Exodus 20: “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven or above, or that is in the earth beneath, or that is in the water under the earth”
      • Plato dislikes art / theatre because it is a form of mimesis, imitation
      • Nathaniel Hawthorne, “The Prophetic Pictures”: painter as mischievous, regarded with awe and perhaps some fear
      • David Freedberg, “The Power of Images”: art elicits primitive emotions, uncultured reactions – psychological roots in art
    • “Double consciousness” surrounding images
      • “Vital Signs”: people vacillate between magical beliefs and skeptical doubts, mystical and critical attitudes
        • View images objectively – can’t let go of our own emotional responses
        • Punctum (wound left by a photograph) vs. studium (message it discloses)
        • Are images resistant to meaning, or do they come alive, want to be attributed meaning and interpretation?
      • “Vital Signs”: “the living image is…both a verbal and a visual trope, a figure of speech, of vision, of graphic design, and of thought.  It is…a secondary, reflexive image of images…a ‘meta-picture.’”
  • Iconoclasm – contemporary censorship vs. “irrational” reactions to art


The Artist’s Right to Free Expression: Censorship Law and Theory




Questions to keep in mind

  1. What is the definition of obscenity that the court is providing?
    1. Harlan: “the intractable obscenity problem”
  2. Why don’t we protect obscenity under the 1st Amend – what is the court’s justification?
    1. History of excluding obscenity
    2. 1st Amend not absolute
    3. Not valuable enough to bother with protecting because it is lacking in ideas
      1. Could be based on morality concerns (i.e. the relationship between obscenity and crime), but it isn’t – court says they don’t care about this
      2. Morality issues are creeping in (specifically in definition of “prurient,” but in Roth there is no up-front discussion of them – only matters that obscenity isn’t an idea
    4. Why is being an idea essential?
      1. Marketplace of ideas ? only way to arrive at the truth is to give all ideas their time in the free market, bad ideas will be revealed as bad and the truth will come out
      2. Sometimes also seen as a quest for political truth
        1. Politics is an important background theory justifying 1st Amend protection
    5. Why doesn’t the court treat obscenity as an idea?
      1. Western mind / body divide ? sex is about the body, not the mind
        1. Obscenity is a substitute for sex, or just sex itself – nothing to do with thinking
        2. Differentiates violence because historically tied up with politics (i.e. war)
      2. Cynical reading ? making a moral judgment that they just don’t like it, and covering that judgment up with formalist legal reasoning
    6. Evolution of obscenity law doctrine ?from prohibition because obscenity wasn’t ideas to prohibition of certain speech that just wasn’t sufficiently good for the court to protect it
  3. Why do we protect art?  What is it about art that preoccupies the court, and gets them concerned?
    1. Our initial inclination may be not to draw any line – but should context (i.e. child porn) or the gov interests at stake matter?


Regina v. Hicklin (1868)

  • Hicklin definition of obscenity ? looks at the effect of an isolated excerpt (not the entire work) on a particularly susceptible person (usually a young girl)


Roth v. United States (1957)

  • Court says obscenity isn’t protected by the 1st Amend
    • Definition of obscenity becomes a matter of constitutional law – court struggles to find a definition / draw the line (Stewart: “I can’t define porn but I know it when I see it”)
      • Court has to review materials on a CBC basis – faced with a history of banning great works (i.e. Ulysses) and then correcting the mistake b/c of doctrinal failure
  • Roth definition of obscenity ? whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient interest
    • If something is deemed “prurient,” it therefore has no redeeming social value
      • Oversight ? assumption that something can’t be both prurient and socially valuable
    • Not clear what “prurient” means, and whether it applies to the viewer or the creator
      • “Appeals” could mean the artist appealing to the viewer, or could refer to how the viewer himself feels about the material

Roth was a huge stride forward in free speech doctrine b/c rejected Hicklin – but not fully worked out, and rests on a fiction about ideas and whether sex can complicate ideas

  • Internet obscenity laws more of a return to Hicklin (see Nitke below)


Memoirs v. Massachusetts (1966)

  • Lower court says book involved has minimal value, but that isn’t sufficient to warrant 1st Amend protection
    • SC says no – must be utterly worthless to be obscene
  • Memoirs test for determining obscenity ?
    • (1) appeals to prurient interest (from Roth test)
    • (2) patently offensive because affronts contemporary community standards
    • (3) utterly without redeeming social value
      • Designed to protect something that is both dirty and valuable

Some critics have said this protected everything – the fact that people buy dirty magazines means that they do have some redeeming social value


Redrup v. New York (1967)

  • Court reverses convictions against people who sold dirty books / magazines to other adults
    • Court basically says they don’t know what the standard is for obscenity (cites the different justices’ args) – but says the things in question aren’t obscene
      • This is problematic because level of protection would vary based on composition of the court, and doesn’t provide notice to artists of what they can and can’t do, so could potentially have a chilling effect
    • Court also creates an exception whereby you can’t be prosecuted for reading / viewing obscene material in your own home
  • “Redrupping” ? period in obscenity law where the court reversed 31 obscenity convictions, citing Redrup


Miller v. California (1973)

  • Miller test for determining obscenity ?
    • (1) Does the material appeal to a prurient interest?
    • (2) Does it depict sexual behavior in a patently offensive way?
    • (3) Does the work lack serious literary, artistic, political or scientific value? (LAPS)
      • Can think of this factor as: did the artist intend to create art?  Or as whether the art is serious in a way which reflects the solemnity and sanctity of high art
      • Shift away from broad 3rd prong of the Memoirs test – “social value” ? “serious value” in specific, defined areas
  • Court says juries should apply community standards—not national standards—to govern first two prongs


Can view evolution of obscenity law as Brennan’s odyssey – he wrote Roth, tried to modify the doctrine over time, and eventually said what he set out to do (draw the line b/w obscenity and protected speech) wasn’t worth it and moved into the dissent in Miller

  • Adler: he dissents here because of the 3rd prong – significant to Brennan because it limits protected work to good (serious) work, and cuts out bad work, thus limiting the marketplace of ideas
    • Ideas as the dividing point meant any idea was protected, good or bad
    • Now saying there will be some speech that won’t be protected because it’s not good enough


Court now needs Paris Adult Theatre, which provides the rationale for Miller (which is a definitional case) ?

Paris Adult Theatre I v. Slaton (1973)

  • Provides rationale for obscenity law that went unmentioned in Roth – right to maintain a decent society
    • Quality of life and total community involvement
    • Possibly public safety
      • But in other areas of 1st Amend law, we wouldn’t prohibit any speech because of the mere possibility that it would be a danger to public safety
        • Marketplace of ideas ? if speech is wrong, dangerous, threatening, the answer is not to censor it—but to submit it to the test of the marketplace
      • Also we usually protect speech because of its dangerous qualities (see fem anti-porn)
        • Its dangerousness is, in part, what gives speech its power
    • Tone of commerce in city centers
    • Strangely court doesn’t mention the gendered terms under which most pornography is produced / consumed
  • But does value really make the work less harmful in terms of these concerns?


Post-Miller applications of obscenity law

  • Jenkins v. Georgia (1974)
    • SC reversed GA court’s decision that the film Carnal Knowledge was obscene ? says not offensive because not focused on the genitals during sex scenes
      • Bases its decision on the 2nd prong of Miller, rather than the 3rd prong (though arguably there was artistic value to the film)
    • Does this suggest that Miller works?  Does this show that obscenity law works, and won’t prohibit things that shouldn’t be prohibited?
      • Adler: still an uncertainty – don’t want to assume that 5 justices will always get it right
  • Pope v. Illinois (1987)
    • Court clarifies the 3rd prong of Miller ? jury should decide whether or not a reasonable person would think the work had serious artistic value
      • Standard is “not whether an ordinary person would find value, but whether a reasonable person would”
      • Adler: reasonable person vs. ordinary person?  Does this mean the court doesn’t think that ordinary community members aren’t reasonable?
    • Scalia’s concurrence ? says there is no use arguing about taste, people find art in all different ways – should must reexamine Miller
      • Looks like he is up to something – will likely take this further when another obscenity law case comes before the court, maybe trying to get rid of entire structure
    • Stevens’s dissent ? argues that the standard should be whether some reasonable person somewhere could find value in the work
      • Scalia rightly says this would protect everything
  • Cincinnati v. ContemporaryArtsCenter (1990) [Robert Mapplethorpe case, see below for more info]
    • First prosecution of a visual artist / first prosecution in an art museum in US history
      • Adler: was this an inevitable flaw of Miller and Pope?  Does it show some flaw in the SC’s thinking?
    • Deals with to define the phrase “taken as a whole” when dealing with photos in an art gallery
      • Kois v. Wisconsin court said “look at the context of the material as well as its content”
      • But court says applying this standard to photos is questionable – context of a photo can be manipulated by blurring, cropping, etc, and context of an exhibit changes by design
    • Says “the ‘whole’ is a single picture, and no amount of manipulation can change its identity”
      • “[T]he click of the shutter has frozen it…into a manmade instant of time.  Never can that moment be legitimately changed.”
        • Court says “the pictures speak for themselves”
      • Says can’t argue that possibly obscene photos as displayed are non-obscene because they are part of an otherwise acceptable exhibit
        • So remanded to determine whether photos are obscene
  • Mike Diana case (1997)
    • First American artist to ever be convicted of obscenity
    • Adler: as a comic book artist, which may have made it more difficult for him – some people don’t consider comic book art a serious art form
  • Nitke v. Gonzales(2005)
    • Issue: challenge to the provisions of the Communications Decency Act which make it a crime to knowingly transmit obscenity by means of the internet to a minor
      • Challenge that the CDA is overbroad b/c it reaches both obscene and non-obscene speech
        • Argue that it prohibits, based on the standards prevailing in one or more communities, a substantial amount of speech that is protected, based on the standards prevailing in one or more other community
    • Holding: overbreadth not established
      • Overbreadth means that even if a law can and will be applied to obscene speech, if it also has a chilling effect on protected speech, have to strike down the entire law
      • Court says must show ?
        • Evidence as to the total amount of speech implicated by the CDA
        • Evidence as to the amount of protected speech that will be banned but is possibly lawful in some communities
          • Will have to show a variation in community standards that will affect / limit speech – and that the CDA’ affirmative defenses won’t sufficiently protect this speech (have viewer certify that they are 18+ and aren’t offended by images of the nude human form)
            • Adler: affirmative defenses are problematic – the more clicks you have to go through, the more viewers you will lose, also frames how the work is viewed (as about sexuality)
      • Barbara Nitke is a photographer whose work focuses on sexually explicit subject matter
        • Court says reasonable likelihood that people will disagree about whether her work has serious artistic value
    • Adler: the court gets it wrong – doesn’t see the significance of the overbreadth here, is Draconian and demands far too much of plaintiff trying to prove overbreadth
      • Possibly because they don’t want to get into the question of what to do about community standards / local nature of obscenity law when applied to the internet


Mapplethorpe - obscenity law and photography

  • Mapplethorpe’s photography
    • X portfolio – S&M photos
    • Y portfolio – photos of flowers
    • Z portfolio – photos of nude black men
  • Context of the case – story of obscenity prosecution intersects with battles over gov funding of the arts
    • Begins with art show at Institute for Contemporary Art in Philly, next show supposed to be at Corcoran in DC, then Cincinnati museum
    • Helms learns of the show, and that ICA had received some gov funding that went towards show
      • Corcoran decides to cancel show b/c worried about Helms’ poliical hostility
      • Cincinnati museum has the show anyway
        • Segregates funds so no gov funding used for the show
        • Also wrote warning signs about the nature of the graphic works inside the museum, and didn’t admit anyone under 18 to see the show
    • Grand jury indicted museum on obscenity charges
  • Question is whether to view the X portfolio independently, or view it as a whole with rest of the collection
    • Court says each photo must be viewed independently [see Cincinnati v. Contemporary Arts Ctr]
    • Was this the right decision?
      • Each photo might tell one story—but the very nature of an exhibition is that the photos tell a story together
        • When dealing with novels, court stressed that you must read the entire book – can’t take a portion of it out of context
        • When translating that notion to art exhibition, shouldn’t it be viewed as a whole?
    • What is the court really saying about interpretation of photos?
      • Meaning of photo is transparent, that meaning adhered to it at the moment it was taken and can’t be changed
        • This conflicts with the entire idea of curating art galleries / exhibits – curators are trying to get people to view art in a particular way
        • And even without curating, different people will see different meanings in photo
      • Photography particularly vulnerable to being prosecuted as obscene
        • People often confuse photography with reality (as did Cincinnaticourt!)
        • Perception is that it is a lesser art form – in part because of the proliferation of the image, in part because of elitist fears about mass access
      • Court not willing to go outside of the four corners of the photo
        • But there could be doctored photos, may not be as obvious as they seem
        • Also can’t view meaning as independent of culture
    • Ultimately this deconstructed view of reality—which might work for art—doesn’t necessarily work for a court of law
  • Why was Mapplethorpe a particularly attractive target?
    • Depicted nude male body – not frequently seen in art
    • Died of AIDS and portrayed that crisis in his art
      • Makes it easier for court to say that the images displaying his lifestyle choices and morality (or lack thereof) were wrong
    • Also because of his exploration / portrayal of race, interracial relations
  • Since the court ultimately upheld protection for Mapplethorpe, is Miller working?
    • Not necessarily, because it took SC to rectify
    • Also this was an easier case than others might be – Mapplethorpe was an extremely talented and famous artist, using formal photographic qualities
  • Other arguments (besides artistic value) that could protect Mapplethorpe under Miller test?
    • Questions about prurience
      • Clearly a different audience than typical porn
    • Political value
      • Documenting gay rights, AIDS, political subjects
        • But is this any more political than gay porn or porn in general?

Post-modernism and the problems that contemporary art poses for legal institutions

Adler’s article Post-Modern Art and the Death of Obscenity Law

  • Late modernism – critics made distinctions between good/bad, pure/trash, high/low, etc
    • Liked artists whose art dealt with their interaction with the art (Pollack, Stella)
    • Idea that there was a “real author” behind the piece because work was intensely personal
  • Post-modernism was a reaction to these distinctions / snobby treatment of what is art
    • Duchamp– took a mass-produced urinal and put it in the museum context
    • Jeff Koons– makes art that looks like kitsch, trashy lawn sculpture
      • Explicitly challenging notion of authorship – hires Italian sculptors to make his art
      • Also attacks notions of originality
      • And directly challenging obscenity law – brings pornography into the gallery
    • Warhol– took mass-market images of commercial subjects and put them in galleries
      • Explicitly rejected division between high / low, art / commerce
      • Also challenging the notion of authorship – work produced in his studio (“the factory”) by his assistants
    • Sherri Levine– calls herself a “re-photographer”
      • Attack on notions of originality and authenticity – took photograph of a Walker Evans photo and renamed it, exhibited it
    • Amy Adler(not the prof) – takes a photograph, then makes a drawing, the photographs the drawing and destroys it, leaving only the photography
    • Performance art generally
  • Because art has so relentlessly questioned its boundaries, any attempt to draw a line between art and obscenity will under-protect art
    • Trying to get to a distinction between what we value and what we don’t
      • But how do we deal with art that is itself questioning the line?
    • The whole premise of obscenity law is that there is stuff we want to protect, and we have decided what to protect based on what constitutes art
      • Art being what the critical community recognizes as art
      • Adler: also anything that makes us question “what is art?” in the first place – which would be even trash strewn around the museum gallery
    • Factors we could use in a multi-factor test ?
      • Intent of the artist, reception of the viewer, context, price, commercial or artistic purpose (love of the work or money?)
        • Only a portion of the meaning because what we bring to it as a viewer is very important – we would miss a lot by focusing merely on artist’s intent
      • Really going to have a problem making any test that gets at the distinction between art and porn
        • Asking “what is art?” isn’t very helpful because could learn about art at a gallery or a porn shop
        • Also can’t use “is it political?” because not all is political, and porn itself has a political value
  • Legal term obscenity different from colloquial term pornography
    • Obscene means neither art nor valuable
      • i.e. under Miller something could be both prurient and offensive and still valuable – so not obscene
    • And what about artists like Koons who are attacking this very distinction / definition?
    • Adler: idea that we can tell the difference between obscenity and art is insulting




Questions to keep in mind

  1. What is the definition of child pornography?
  2. What is the rationale for prohibiting child pornography from 1st Amend protection?
    1. A new set of urgent, socially terrifying rationales evinced here to justify the prohibition of speech
      1. Cultural awareness of child porn beginning in late 70s, CPA passed 1984
      2. Since 1992 there has been a constant expansion of the legal apparatus used to prohibit child porn
    2. Ferber court outlines various rationales


New York v. Ferber (1982)

  • NY statutes bans knowingly promoting a sexual performance by a child under 16 by distributing material which depicted such a performance
    • “Performance” – a play, motion picture, photo or dance
      • Emphasis always on live, photographic or filmic efforts – never text
    • “Sexual performance” – performance which includes sexual conduct of a child under 16
    • “Sexual conduct” – intercourse, sexual bestiality, masturbation, sadomasochistic abuse or lewd (later changed to lascivious to avoid term used in obscenity law) exhibition of the genitals
      • Key is what does lascivious mean?
  • Rationales given by court:
    • (1) Overarching rationale ? the creation of child porn requires harm to a child in the production of the material
    • (2) State’s interest in safeguarding the physical and psychological well-being of children is beyond need for elaboration
      • Sexually exploited children have serious physical and psychological problems as adults
    • (3) Distribution of photographs is intrinsically related to sexual abuse of children
      • Permanent record of child’s harm (FN: “may haunt him in years to come”)
      • Must close down distribution if you want to close down production and dry up the market for the underlying crime
    • (4) Ads / sales integral to production
    • (5) Value of such speech is exceedingly modest if not de minimus
      • Unlikely to constitute an important or necessary part of literature, art, or science
      • If necessary, can use older actors to stimulate it
  • No exception for works of value
    • Says it will deal with overbreadth on a CBC basis
    • O’Connor concurrence: court will never make an exception for serious artistic value in this area
      • Audience’s appreciation of the material is irrelevant, evidence of value bears no connection to the fact that a child was harmed
    • Brennan concurrence: states’ interest in suppressing material will be far less compelling when there is serious artistic value – the value of such speech won’t be de minimus
      • Inverse relationship between harm and value – because of method of production in child porn vs. art, “haunting” harm will be less severe if work is in an art context


What is missing from the Ferber rationales?

  • Effect of the material on viewers – saying we don’t want people looking at it to get ideas
    • Possible link between looking at child porn and acting out the behavior – but studies only correlative, not causative
    • Also don’t want to distinguish speech based on its message / ideas
      • 1st Amend draws a distinction between speech and action – difference between what you do and the speech that makes you do it
      • So to state this as a rationale would run up against traditional 1st Amend principles


Nowhere else in 1st Amend law do we ban speech because of the underlying crime it represents

  • Ban imagery of child porn because it is a recording of the crime
    • But often an image of a crime is treated differently than the crime itself (i.e. a photo of a murder may get published in the NY Times)
  • But to talk about what the image then does in the world violates 1st Amend principles


Osborne v. Ohio (1986)

  • Court criminalizes mere possession
    • Def sent to jail for merely having four pictures in his bedroom that constitute child porn
    • Court doesn’t follow Stanley, which held that you can’t criminalize possession alone
  • Adds another rationale to those given in Ferber
    • (6) Seduction – child porn can be used by pedophiles to seduce children into being molested, or posing themselves for child pornography
      • See also in the Ashcroft decision, where court gets too much into banning speech because of the prospect of harm

United States v. Dost (1986)

  • Articulation of multiple factors to determine if something is child porn – used in almost all jds now
  • Dost definition of child pornography ?
    • (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area
    • (2) whether the setting of the visual depiction is sexually suggestive, i.e. a place or pose that is generally associated with sexual activity
    • (3) whether the child is depicted in an unnatural pose, or in inappropriate attire considering the child’s age
    • (4) whether the child is fully or partially clothed or nude
    • (5) whether the visual depiction suggests sexual coyness / willingness to engage in sexual activity
    • (6) whether the visual depiction is intended/designed to elicit a sexual response in the viewer
      • Requires the court to take on the gaze of the potential pedophile / child pornographer in making this determination

All pictures of children can be child porn because of Knox, and becomes even more oppressive with the Dost test


Sally Mann - should there be an exception for works of serious value in child pornography law?

  • Sally Mann video
    • Interviews with children about how they felt about being photographed
      • Say they enjoy it, are okay with being teased at school, had fun taking the photos
      • When they voiced displeasure, it was because they had to sit still or pose uncomfortably (in cold water, or keeping the same position for a long time)
        • But would any child just want to please her mother?
    • Discussion with Mann about the purposes behind her photos generally, and about specific pieces that are often criticized
      • Stresses the everyday childhood images, common images of motherhood
      • Talks about the artistic compositions rather than focusing on the naked child
    • Idea of tricks of the trade – using non-violent things that look like violence in photos
      • Uses bug bites to look like bruises, “Stretched Jessie” looks violent but really was just the child playing a game
      • Becomes like staged / virtual porn – when actually using actors who are over 18, held to be legal because no children were actually harmed
        • But these are still children being used here – does it have to be actual porn for them to be harmed?
  • Is Sally Mann’s work child pornography?
    • Apply Dost factors to “Venus After School”
      • Photo of Jessie lying naked on a couch, reminiscent of art poses
      • Self-conscious allusion to Manet’s Olympia, which itself alluded to Titian’s Venus of Urbino – so clearly working in an art history tradition
    • (1) Jessie’s hand is drawing the viewer to her genitals – so arguably the focal point
      • Her genitals aren’t discernible though
      • Knox court said you can has a lascivious exhibition of genitals even if they aren’t visible
    • (2) Jessie is lying on a couch / day bed – so could be usually associated with sexual activity
      • But also a fairly common place to find a child
    • (3) She is reclining – but maybe not an unnatural pose in that growing up as a girl is about taking on a series of “unnatural poses”
    • Consider especially in light of (6) ? was this work intended to elicit a sexual response?
      • Does the “artiness” of the work help in this determination?
      • Picture becomes more of a commentary on sexual desire – but by alluding to sexual artworks (that were regarded as a sort of porn in their own time), maybe it is arousing sexual desire in the viewer in that sense?
    • Context matters to us – we saw the documentary about Sally Mann so we know what she intended the viewer to feel / think, and how she feels / thinks about her children
  • Based on Dost, Mann’s work would probably be considered child porn (in the absence of an exception for serious artistic value)
    • Adler: the only reason Mann isn’t in jail is prosecutorial discretion
      • Dost leaves a lot of room for prosecutorial discretion – could end up with really arbitrary determinations
        • Judge Kaczynski commented that he thought the test should be “nude or not”

Also think about Mapplethorpe’s photograph of Jesse McBride

  • Art historical allusion here as well (to Caravaggio) – but unclear whether he intended it or not
    • And does the “artiness” even help?


United States v. Knox (1994)

  • Man videotapes girls playing / dancing in parks using a telephoto lens
    • Girls are fully clothed but he zooms in on their genitals
    • Marketed this work to pedophiles saying it was “hot” but also legal – Knox purchased them
  • Court says not legal – work is lascivious according to Dost


Janet Malcolm (TNY writer, photo critic) discussing Mann’s photo on the cover of “At Twelve” ? “transfixing feature [of the photo]—you could almost call it its face—is the girl’s vulva”

  • Feels that Mann betrayed the girl in taking the picture and cropping it as she did

How do we differentiate between Mann’s photo and those at issue in Knox?

  • Marketing difference – the tapes in Knox marketed as “hot,” whereas Mann’s work is sold as art?


Should there be a serious artistic value exception?

  • Given the combination of Dost and Knox, a lot of things meet the definition of child porn
    • Sally Mann isn’t in jail because of prosecutorial discretion
      • But she is an easy case because her work is so arty
      • What about a “lesser artist” like Jacques Sturgess?  How would he fare if we created a serious artistic value exception?
    • Larry Clark – director of Kids
      • No doubt that his pictures are child porn (i.e. picture of girl being gang-raped)
      • His work starkly presents the question of whether there should be such an exception
        • Could say rape photo has extreme political value – might compare Clark to a documentarian, he is taking news photos on the front lines of a different kind of cultural battle
        • But counterarg is that his photography is an extreme act of non-intervention
  • If court made an exception for serious artistic value, would still have to deal with the question of what standards we use to define art, i.e. post-modern art that rejects such standards – is it still art?

Answer depends on how we conceive of the harm of child porn, how we conceive of artistic value, how we conceive of the relationship between harm and value, and how we define child pornography

Ashcroft v. Free Speech Coalition (2002)

  • Challenge raised that the Child Porn Prevention Act of 1996 abridges the freedom of speech ? CPPA prohibited “virtual porn” because (1) it was used to seduce children, (2) it whet the appetite of pedophiles (prospect of harm), (3) it was difficult to prosecute
    • Question is whether it is constitutional where it proscribes a significant amount of speech that is neither obscene under Miller nor child porn under Ferber
  • Court held that the act abridges the freedom to engage in a substantial amount of lawful speech
    • No direct harm to children – more of a moral judgment on Congress’ part
      • The mere prospect of crime doesn’t justify laws suppressing protected speech
      • Also gov can’t ban speech permissible for adults just b/c it may fall into children’s hands
    • CPPA “prohibits speech that records no crime and creates no victims by its production” ? Ferber’s judgment about child porn was based on how it was made, not what it communicated
      • Ferber also relied on availability of virtual porn (simulation, older actors) as an alternative and permissible means of expression


Garry Gross commercial photo of pre-pubescent Brooke Shields ? Richard Prince took a photo of it and re-titled “Spiritual America” ? Garry Gross art exhibit and used his original picture

  • Prince had no stake in harming the child, his photo didn’t involve her at all – could he still be prosecuted?
    • Still have the other kind of harm – the “haunting” harm
    • And why privilege the re-photographer just because he is removed from the harm?  We criminalize people who own photos depicting child porn, so re-photographing is no different

ART and child pornography law

  • Child porn law deals only with photography
    • Part of its concern is that we don’t want to encourage the underlying crime
    • Also concern about the ability to stage a photo / lie or betray the viewer
            • Betrayal and violence in Mann’s work becomes a commentary on the medium of photography as well as her failures as a mother (whether consciously or not)
  • Importance of child’s body / child’s sexuality as a subject of art – collision course between child porn and what many artists are thinking about
    • Anna Gaskell’s “Alice Series” – photos of childhood
    • Collier Shorr – photos of trans-youth eroticism and Jewish/German countryside stuff
    • Paul Kopeikin – pictures of children crying
      • Taking abusive things that happen in everyday life to an extreme, uncomfortable level
      • The artist also politicized the work – juxtaposed with commentary on the administration

Adler: these artists are working in a realm absolutely without legal protection


Adler’s article - The Perverse Law of Child Pornography

  • Child porn law might arguably be simultaneously solving and exacerbating the problem it’s trying to solve
    • Expansion of child porn law since Ferber– has drifted quite far from underlying initial premise
      • Ferber about underlying harm to child
      • Now about whether sometimes meets the Dost test
        • Lead to many false positives, and has seriously changed the way society looks at children ? asked to adopt pedophile’s gaze, read sexuality into everything
    • Child porn law fails to recognize the distinction between teenage sex vs. prepubescent sex
  • Also media coverage often constitutes child pornography
    • Jonbenet coverage
    • Mainstream anorexia – trend towards adults looking 16
    • Abercrombie & Fitch catalogues – sexualization of adolescents
    • CK ads – premised on idea of teenagers auditioning for porn films
    • Sexualization of non-sexual images – reading child porn into everything

Knox and Dost important now because of a recent trend in child porn ? trend towards modeling websites that are marketed towards child pornographers, and billed as legal but aren’t necessarily so because of Knox

  • These sites have arisen to fill a gap in child porn b/c other more explicit areas have been severely restricted
    • NY Times says because we have been so successful combating hard-core porn, there is now a market for this kind of material
    • Adler: unclear whether or not this is correct, b/c Americans can’t legally research in this area




Catherine MacKinnon



  • Connections to obscenity law ?
    • Critic of obscenity law and is in some way filling the gaps that Adler said existed in Paris Adult Theatre – much more compelling rationale for restricting speech in this area
  • Connections to child pornography law ?
    • Her work is quite close to the thinking in Ferber – says she isn’t worried about the tone of commerce, but is worried about the subordination of women as well as rape, etc
      • Close connection in thinking about speech and representation
  • MacKinnon’s influence
    • Her work has not been incorporated into 1st Amend law
      • Adler: whether or not you agree with MacKinnon, it’s astonishing that gender was never considered in the SC’s obscenity law
    • She has been influential in terms of policies set by galleries and museums – this way of thinking about women has had an effect on what you will and won’t see
      • Elizabeth Braun incident: nixed piece that she said had associations with peepholes
      • Also Michigan Law School example: students demanded that exhibit be taken down
    • Also Canada is deeply influenced by MacKinnon in how they think about “obscenity”


MacKinnon’s Feminism Unmodified: Discourses on Life and Law ? porn is central to the subordination of women

  • Harm of production – harm to the people who pose for pornography
    • Women are coerced either overtly or systematically into participating in porn
      • “All pornography is the documentation of a rape”
      • Recognizes that some women have found a way to capitalize on the male-dominated system of porn (i.e. porn stars) – but says they are still being raped
    • Primary thrust of what the SC was talking about in Ferber
  • Harm of representation – harm caused by pornography being out in the world
    • Gender as socially constructed – gender roles come from sexuality, which comes from porn
      • A woman living in a culture that is socially constructed by porn is vulnerable to violence in a way that she wouldn’t be if we lived in a system of equality
      • Believes porn causes rape and violence against women, and inspires viewers to go out and act out what they see
    • Women have come to enjoy their own subordination (to some extent), and now participate willingly in our own victimization
      • So even a women who claims porn is her liberation is stuck in this construct
      • Says porn reinforces the subordination of women even when the roles are flipped
    • Says we are formed by sexuality – sexuality is central to who we are as gendered people
      • Pavlovian view of sexuality – porn has an effect that other kinds of imagery doesn’t; more connected to reality; other routes into our brain aren’t as powerful / pernicious
    • What the Ferber court was afraid to talk about
  • Her attack on the marketplace of ideas ?
    • Porn creates a market failure – the so-called free speech of men silences the speech of women
      • When porn is allowed to circulate, women are silenced
      • In order to allow the market to function properly, must get rid of porn
    • Must go back and question the status of porn as speech – she says it isn’t really speech, it’s action
      • Porn is acting in the world – it isn’t just ideas, but how gender discrimination happens
        • Porn is used as sex, therefore it is sex (rather than a representation of sex)
        • Makes an analogy to performative utterances – a “whites only” sign isn’t speech, but rather behavior that violates equal rights of discriminatees
      • In some way, consistent with the Roth court’s assumption that obscenity isn’t speech based on the mind / body divide – obscenity is sex itself
    • “Pornography is the sexually explicit subordination of women”
      • We aren’t in the realm of speech, but the realm of what speech does – so the marketplace of ideas and the 1st Amend aren’t implicated


MacKinnons’ Theory of Representation and Harm

  1. Underlying act that is depicted – harm of production
    1. Child being molested in Ferber, or the woman being raped for MacKinnon
  2. Image (photograph, porn film)
    1. MacKinnon collapses 1st and 2nd harms ? the act depicted and the image are one and the same
  3. Effect of image
    1. MacKinnon also collapses 2nd and 3rd harms ? the image has something of a talismanic effect, whatever happened to make the image is so powerful in that image that it comes to exert power over people down the chain of consumption


American Booksellers v. Hudnut (1985)

  • Ordinance defined “pornography” as a practices that discriminates against women
    • 7th Circuit holds unconstitutional because doesn’t refer to prurient interests, to offensiveness, or to the standards of the community and also because it demands attention to particular depictions and not to the work judged as a whole
  • Easterbrook acknowledges power of porn to change society in a negative way (like MacKinnon says) – but also says porn is not only protected in spite of that harm, in a sense it is protected because of it
    • All of the unhappy effects of dangerous speech depend on “mental intermediation” ? speech filters through us and our thought processes, and we act in the world—not the speech
  • Easterbrook also says the ordinance bans certain speech while validating other speech
    • Says we can’t declare that certain speech is more “true” than other kinds

? If the SC wanted to uphold the ordinance in Hudnut without overruling Ashcroft, would have to let MacKinnon and anti-hate speech activists have their say in changing 1st Amend law


Criticisms of MacKinnon:

  • MacKinnon infantilizes women in a particularly harmful way
    • She argues that we protect children (i.e. child porn law) and should do the same thing for women
    • Consent to engage in / make porn shouldn’t be recognized by women or children
      • This denies women’s agency – removes choices from women with regard to expressing their sexuality, choosing what they want to do in this area
  • Refuses to see the value of porn
    • Restriction of porn has always gone hand in hand with the restriction of women’s rights – women’s sexual freedom depends on the free circulation of porn
    • Porn also has value for gays and lesbians
  • Basic marketplace of ideas arguments ? have to trust the marketplace and protect porn
    • Protecting all speech is only way to ensure free speech for all – can’t make content determinations


How do we distinguish between pornography and a work that is critical of porn?

  • MacKinnon says given pornography’s social construction effect, the possibility of creating powerful counter-speech is unlikely, particularly if trying to do so using porn’s tainted speech
    • What about value?
      • Says perhaps what redeems a work’s value among men enhances its injury to women
      • Also says existing standards in literature and art and consonant with pornography’s mode, meaning, and message
      • Resembles O’Connor in Ferber – there’s harm, why do we care about value?
    • If SC had upheld “virtual porn” prohibition in Ashcroft, would have had to rely on harms like those that MacKinnon recognizes
  • How does purportedly feminist art fit within MacKinnon’s definition of porn (see class notes pp.20-21)
    • Andrea Fraser – focuses on the art institution and women, i.e. sold herself to a collector for sex, made a video and exhibited it as artwork
      • Is this porn according to MacKinnon?
        • She is presented as a commodity
        • But she isn’t submissive or subordinated
          • MacKinnon would say this is irrelevant – she is so entwined with the culture of women being subordinated that she doesn’t even realize her own subordination
          • She also would say the availability of this image subordinates other women regardless of Fraser’s own experience
      • Should it be?
        • Feminists who aren’t anti-porn would say this is a way to defeat the medium – not an attempt to expunge our culture of porn, but to reclaim and reverse it
          • May be a commentary on how the female artist is treated as a prostitute
          • But Fraser profited from this – so we question her motives a bit more
        • Adler: there is an ambiguity here, deepened by her experience in the gallery (teenage boys were consuming the work as a pornographic piece, not a feminist piece)
    • Melanie Pullen – restages vintage crime scene photos using high fashion
      • Is she critiquing the glamorization of women in advertising, or participating in it?
      • What are the costs to her own agenda of using the language that she attempts to critique in her attack?


Art, Pornography, and the Subjugation of Women

  • History of blurred boundary between art and porn
    • Titian’s Venus of Urbino talked about as a pin-up for the wealthy
    • Velasquez’s painting of a female nude was slashed by suffragette Mary Richardson – came from an understanding of art as a way in which the female body is displayed for the male audience
    • Guerrilla Girls – art critics who talk about the representation of women in art
      • Less than 5% of artists in the Met are female, but 85% of the nudes there are female
  • 1960s movement to reclaim the female body / use of vaginal imagery
    • Carolee Schneemann – “vaginal scroll”
      • Speaking through her body, becoming the subject of art at the same time as the object
    • Ana Mendieta – photos of rape/murder crime scenes using herself as the victim
      • This would be troubling for MacKinnon – female using her own body to make a critique about violence against women
    • Barbara Krueger – using commercial vocabulary of advertising to make feminist work
    • Cindy Sherman – self-portraits where she dressed up as various female archetypes
      • Trying to make the viewer doubt the stability of the artist, and to comment on notion that there is no authentic woman – we will always see women through various lenses without really understanding their true identity
      • Using the vocabulary of traditional images of women to make a critique
    • John Currin – merges the vocabulary of porn with classical painting
      • Has been critiqued as sexist, along with similar female artists (i.e. Lisa Juskevaj)


If we can’t simultaneously protect activism and ban porn (or hate speech), which should we choose?




Two circumstances under which traditionally banned offensive speech under 1st Amend

  1. Fighting words (Chaplinsky) ? can ban speech that would basically cause someone to hit you if you said it in a face-to-face incident
    1. The only response to hearing this language would be to punch someone who said it
      1. Example used in Chaplinsky was “You are a god damned racketeer!”
    2. Implicitly racist / sexist b/c seems only a white male would respond w/ violence in such a situation
  2. Incitement to imminent lawless action (Brandenburg) ? test is whether speech is directed to inciting or producing imminent lawless action and likely to incite or produce such action?
    1. This is an extremely difficult standard to meet
      1. Brandenburghas to do with a KKK rally – speech associated with a history of violence, but court said it was protected and didn’t meet the test
      2. Hess v. Indiana court said “We’ll take the fucking street later” didn’t meet test
    2. Requires a tight nexus between the speech and the action / violence, i.e. saying to a crowd with guns “Take your guns and go kill the President right now”


Mari Matsuda

Public Response to Racist Speech: Considering the Victim’s Story

  • Harms that she says are overlooked by the 1st Amend ?
    • Pain and psychic harm (“spirit murder”) for the individual victim
    • Social harm – mechanism of subordination (resembles MacKinnon)
  • Suggests a definition of hate speech that she says will allow us to form an in-between structure b/w traditional 1st Amend principles and insights about the harm of hate speech
    • Message is of racial inferiority
    • Directed against a historically oppressed group
    • Message is persecutorial, hateful and degrading
  • Based on people being in different subject positions – those who aren’t in minority or oppressed groups can’t understand the plight/position of those that are
    • Hard cases – victim’s stories
            • Where the member of the outsider group is making the statement, Matsuda would make an exception and allow this speech in most cases
        • Identity as a proxy for intent
            • Or, if can’t figure out who the speaker is, ask members of that group whether or not the work involves “real harm to real people”
        • Adler: Matsuda essentializes the audience – victim group members often disagree on the meaning and impact of speech




Is there a way to distinguish artist work from real hate speech?

  • Jewish Museum stuff – Prada Death Camp, “It’s the Real Thing” photo of Diet Coke merged into image of a concentration camp, Lego concentration camp, Swastika film projector
    • Images that were criticized as glamorizing / trivializing the Holocaust
    • What would Matsuda say about this work?
      • The artists were Jews – Matsuda would probably say they should be protected
      • This was also the curator’s defense – said he would never show neo-Nazi work
    • What is the value of this work?
      • Value to the victims – art as individual or collective therapy
      • Also as a way of contemporizing the Holocaust and keeping it in public thought – there is a way in which we are deadened to certain images b/c we’ve seen them so many times, but an intervention makes us “see” them again (Sontag)
      • Also a critique of consumer / advertising culture
    • What arguments exist for banning the work?
      • Is it really worth it to protect this given the above values?  How important or valuable is this subversive, internal critique using the language of the thing being attacked?
  • Serrano portrait of a Klansman (from a series of Klan portraits)
    • Artist is of mixed race – different for an African-American to take photo than for a white person
      • But isn’t this essentializing to some degree as well?
    • Meaning of artwork could be to draw attention to the ridiculousness / absurdity of the Klan
      • But could also be seen to make viewers feel disempowered, and glorify the Klan
      • Can we say that Serrano meant this portrait to be critical of the Klan based on his race?
        • Problem of essentializing again
        • Also even if we can nail down his intent, doesn’t control what the picture does in the world – Adler says this is dangerous b/c individualizing an icon of racism runs the risk of humanizing them, detracting from the Klan’s awful history
    • Relationship b/w photographer and subject ?
      • Photographer is empowered vis-à-vis his subject – can crop, manipulate photo
      • But he is also subordinated – the image becomes more powerful, controlling
  • Ali G – anti-Semitism and other hate speech in his comedy
    • Adler: there is something scary and dangerous about his stuff – humor lampoons racism by voicing it / using its own language
      • If viewer doesn’t understand his satirical intent, runs the risk of further racism – maybe even making extremist racial views seem more mainstream
      • To view language as transparent, or its effects as linear, disregards its power over people
    • Work not shown in galleries, but on TV and in movie theaters
      • So does context matter?
    • Resembles Dave Chappelle – purportedly abandoned his show b/c audience was enjoying the racism itself, rather than the critique of racism


Adler’s article - What’s Left? Hate Speech, Pornography, and the Problem for Artistic Expression

Problems with Matsuda’s argument

  • Ultimately intent is irrelevant to effect, or at least its relationship to effect is less predictable than Matsuda argues in her essay
    • So making exception for victims of harm might not do much good
    • Also Serrano is exploiting the openness / ambiguity of the image – maybe he doesn’t want his identity to lead to only one interpretation of the image
  • There is no satisfying way to distinguish Serrano image from a promotional picture taken by the Klan
    • These artists are using the language of hate speech to critically comment on it


So what do we do if we can’t make distinctions b/w the critique and the hate speech?

  • Value vs. harm
    • Is the work contributing something that the existence of hate speech doesn’t accomplish?
    • Also has to do with what the risks / harms are
  • Old fashioned solution ? 1st Amend / marketplace of ideas
    • Let it all out there – people will speak in response and the marketplace will be successful
      • i.e. artist takes potentially racist work and re-appropriates it – subverts it from within




Questions to keep in mind

  • What do we mean by art?
    • Tariffs / customs cases try to figure out what art is
      • Used to be various schemes of exemptions / lower tariffs for works of art brought into US
        • Usually a distinction b/w utilitarian or ornamental works and fine art
      • Idea behind this treatment was education – that we would expose Americans to European greatness through art
  • What is the 1st Amend really about?  Where does art fit in the 1st Amend?
    • To the extent we think of the 1st Amend as protecting the marketplace of ideas, is art an idea?
      • Roth talks about value
      • Miller talks about seriousness – suggests equivalence b/w artistic and political value
        • Why does value matter given the notion of the harm that obscenity does?
    • Feminist anti-porn movement and child porn law call into question the assumptions underlying obscenity law that art is unquestionably protected


Customs cases

United States v. Perry (1892)

  • Defines art into 4 categories ? distinction b/w utility and ornament
    • (1) fine arts (only form of high art) – intended for solely ornamental purposes
      • Paintings; original statuary of marble, stone or bronze
    • (2) minor objects of art – also intended for ornamental purposes
      • Statuettes, vases, drawings, etchings, bric-a-brac; art “susceptible of an indefinite reproduction from the original”
    • (3) objects of art – primarily an ornamental and incidentally a useful purpose
      • Stained glass, tapestries, etc
    • (4) objects primarily designed for useful purpose but ornamental to please the eye
      • Furniture, carpets, clocks
  • In distinguishing what is high and what is low, the court seems to care about?
    • Originality vs. reproduction – essential that art is singular
    • Useful vs. ornamental quality – assumption that art is pretty, beautiful, pleasing to the eye
      • But ornament is itself sometimes useful
      • And the MoMA would disagree – displays household objects as art now

In terms of post-modernism ? all of these distinctions are under attack, if not erased completely

  • But Perry categories are still present in contemporary American legal thinking about art


United States v. Olivotti(1916)

  • Court assumes that sculpture is art that imitates natural objects – chiefly the human form
    • Beauty alone can’t make something art – at least when it comes to sculpture, the work must imitate a natural object


Later court really changes its mind

Brancusi v. United States (1928)

  • Escape from pure representation – more toward abstraction
    • Art doesn’t have to be imitative – though Brancusi’s art isn’t pure abstraction, there is some reference to life


Art’s 1st Amendment status

Bery I v. City of New York (1995)

  • NYC licensing scheme for street vendors
    • Printed matter is an exception (because of 1st Amend values)
  • “Although some art may be very close to pure speech, plaintiff’s art does not carry either words or the particularized social and political messages upon which the 1st Amend places special value”
    • Problem for art: (1) not verbal, (2) doesn’t convey a particularized message, and (3) doesn’t convey a particularized social/political message
            • (1) art is farther from the core of the 1st Amend than the written word
            • (3) references the marketplace of ideas, 1st Amend’s justification sounding in political, democratic ideals (i.e. hate speech, speech that implicates questions of intent and effect)
    • So important characteristics are verbal, particularized, and political
  • Court holds that regulation doesn’t unconstitutionally interfere w/ artist’s free speech


Bery II v. City of New York (1996)

  • Viewed as a great pro-art decision – court says art is deserving of full 1st Amend protection
    • (1) Court recognizes that central purpose of 1st Amend is free discussion of gov affairs – but says cases haven’t suggested that expression about philosophical, social, artistic, etc matters is entitled to full 1st Amend protection
    • (2) Court cites 1952 Birkston case (held: film is a medium entitled to 1st Amend protection) – “motion pictures may affect public attitudes and behavior” in a variety of ways including making us espouse a political view
            • Assumption that art somehow reaches your thoughts
        • Bork: art is a pleasure, but not protected by 1st Amend because not political
        • Mickeljohn: literature and art inform who we are as people in a way that helps us to be citizens who can vote
        • Bork: not good art—good art doesn’t do that
            • Classic debate ? how does art fit into this political marketplace of ideas?  Adler says the court skips over it a little bit
    • (3) Court says visual art is as wide-ranging in its depictions of ideas as any book or other writing, and is similarly entitled to full 1st Amend protection
    • (4) Ideas and concepts in visual art have the power to transcend language limitations, as well as to reach both educated and illiterate people
            • Idea that art is transparent might actually be backwards for some kinds of visual art
            • Class dimension – may still be vestiges about the dangerousness of images, but here court invokes it to use the accessibility of images as a justification to protect them (rather than suppress them)
    • (5) Court mentions Winslow Homer’s Civil War paintings – expressed an anti-war sentiment, idea that war isn’t heroic
            • Court slips easily into the political realm – this painting makes the court’s case easier (as opposed to more modern art that might be harder to understand as speech / expression, i.e. Rothko’s colored blobs)
  • Adler suggests that the court doesn’t offer a satisfactory explanation of why art should merit such significant 1st Amend status – court obscures some of the problems that they are nonetheless bringing out


Mastrovincenzo v. City of New York (2004)

  • Factors for determining whether something is sufficiently expressive to receive 1st Amend protection ?
    • (1)individualized creation of the item by the particular artist
    • (2) artist’s primary motivation for producing and selling the item
    • (3) vendor’s bona fides as an artist
    • (4) whether vendor is attempting to convey his own message
    • (5) whether item appears to contain any elements of expression or communication that objectively could be understood
  • Assumption of the importance of uniqueness vs. mass production
    • What is it about uniqueness that makes an item distinguishable for 1st Amend purposes?
      • Something about the piece having part of the person’s personality / spirit
        • Might be relevant b/c of importance of communicative element underlying 1st Amend – someone is behind the work speaking
      • Also something about the piece being replaceable or not
    • What about Warhol’s Brillo boxes, which directly challenge notion that mass production is antithetical to art?
  • Fact that art is sold doesn’t make it any less protected


Hurley v. Irish-American Parade(didn’t read)

  • Court in passing says we can’t expect something to have a particularized message to merit 1st Amend protection – such a standard would endanger “the unquestionably shielded paintings of Jackson Pollack, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll”
    • But doesn’t say why these works are unquestionably shielded
    • Though in some ways Pollack’s work is easy b/c we have a clear picture of the artist behind the work, pouring his soul into it (even though his art might not be reducible to an idea)
  • Mass production vs. uniqueness
    • Ultimately unsatisfying – but it reveals the search for a person behind the work, which is shorthand for “somebody was saying something”
  • Image vs. text
  • Art vs. craft
    • Bery court uses craft – differentiates the work of the jeweler, potter, silversmith from art that communicates an idea or concept
            • But does art always communicate an idea or concept?  If so, what is different about craft that is handmade?
  • Art vs. fashion
  • Art vs. commerce
    • But art investment funds have revolutionized relationship b/w art and commerce – are bringing art to a new group of people who only have interest in art as an investment opportunity
  • Your own vs. someone else’s speech
  • Particularized message


Warhol (Danto essay)

  • Pop art makes drawing distinction b/w art and non-art even more difficult for legal purposes
  • But there is a sense that Warhol makes it easier – he removes art from the realm of the visual, makes it start to look more like philosophy / ideas
    • Even as he was denying saying anything, in his actions he transformed art into philosophy in a way that makes it easier to think about it in terms of the 1st Amend
    • The history of art through the past century can be viewed as “a collective investigation by artists into the philosophical nature of art”
      • Aesthetics were secondary – instead was about expanding the medium

So Warhol / postmodern art makes these distinctions harder in a way, but also easier in a way


Text vs. Image

Images and their uncertain status under the 1st Amend

  • Bery II – art is protected under the 1st Amend
  • Miller – assumes art is protected (by making exceptions for works of value)
  • Hurley – talks of the unquestionably protected paintings of Jackson Pollack

But this is not well thought-out by the court and is problematic

  • What we value about speech isn’t necessarily what we value about art
    • Hard to make leap from something being valued for its beauty to being valued for its ideas
    • What does aesthetic appeal have to do with the marketplace of ideas?
      • Maybe has to do with postmodern shift in art – from aesthetic to something w/ a message
  • Also pressure on the definition of art (i.e. in Mastrovincenzo) makes these inquiries harder
    • Not only do we have to explain how art fits into the marketplace of ideas, but have to explain the difference between art and everything else


Kaplan v. California (1973)

  • Dealt with whether expression by words alone could be legally “obscene” and not protected by 1st Amend
  • Closest SC has ever gotten to why there is a preference for text over image ? “Because of a profound commitment to protecting communication of ideas, any restraint on expression by way of the printed word or in speech stimulates a traditional and emotional response, unlike the response to obscene pictures…A book seems to have a different and preferred place in our hierarchy of values, and so it should be”
    • Though this longstanding practice of avoiding prosecution of textual material was changed this fall – prosecution brought against a commercial website that used text to violently write about child porn


Adler’s article - The Art of Censorship

There is a strong 1st Amend preference for text over image

  • Reason for this reveals more assumptions about the marketplace of ideas and the 1st Amend, as well as some of the problems art faces in trying to attain full-fledged 1st Amend status
    • Marketplace tends to value speech that can be classified as “ideas,” speech that is rational rather than emotional, that conveys a “particularized message,” that is discursive and direct
      • Once we value speech for its rationally comprehensible ideas, as the marketplace model does, it becomes hard to accommodate protection for art
      • So makes sense that the assumption in 1st Amend jurisprudence and its critiques is that text merits greater protection than images
    • Also something about art, and visual images in general, that makes people perceive them as dangerous
      • MacKinnon: artistic value makes pornography worse – its value enhances injury
      • Historical fear of images that motivated iconoclasm is still present in our culture and our 1st Amend law
        • Seductive quality of images further removed them from God / truth (Plato) – they bypass reason and appeal directly to the senses ? thus can’t even participate in the marketplace of ideas


Flag burning cases can be a place to start a new jurisprudence surrounding “what is art”

  • Uses the court’s thinking about flags as a way to make some inroad into the assumption that visual images fall lower in the 1st Amend hierarchy than verbal / textual utterances
    • Court beings to reckon with the power and significance of speech that is irrational, nondiscursive, iconic, emotional, and visual
    • Fear that a visual symbol is so powerful that it may overpower the speaker – he won’t be able to control its meaning – so they don’t fit into the reasoned, rational marketplace of ideas
      • Visual images by their nature can’t be confined
      • But this shouldn’t mean they aren’t protected by the 1st Amend – should instead cause us to “rethink the cramped 1st Amend model that we currently insist on”
  • The force of visual images so evident in these cases illuminates both why we censor art and, more importantly, why we should protect it


Rehnquist, flags and graven images

  • Rehnquist says the flag is the thing it represents, there is no other meaning
    • Confusion between image and reality
    • Says pro/con opinions can’t be tolerated with regard to the flag – shouldn’t be subject to the marketplace of ideas
      • Resembles MacKinnon – no other way to think about pornography than as the subordination of women
      • Also resembles Matsuda when talking about wanting to take hate speech/racism out of the marketplace of ideas
    • Also connection to iconoclasm – speaks of the mystical reverence towards the flag, attributes a religious quality to it
      • Barnette: Jehovah’s Witnesses would salute the flag b/c felt it was a graven image
  • Rehnquist: if you don’t like America, say it another way
    • But 1st Amend says there is a difference between means of expressing something – part of the reason is that the flag is such a sacred and recognizable symbol
      • To change the form is to change the content

This is a very traditional way of looking at images – but not a 1st Amend way of looking at them


Texas v. Johnson (1989)

  • Two steps in expressive conduct cases?
    • Is it expressive? (does it trigger 1st Amend scrutiny)
      • Spence test – threshold test when not in realm of verbal material
        • (1) whether there is an intent to convey a particularized message;
        • (2) whether the likelihood was great that the message would be understood by those who viewed it; and
          • Difference b/w intent and effect – but here the court is demanding both and perhaps envisioning a convergence between them
        • (3) the context of the conduct
      • Court doesn’t use Spence test much – seems confused by it
    • If it is expressive, can the gov still restrict it?
      • O’Brien test – if your speech / behavior qualifies under Spence, must still survive here under intermediate scrutiny test
        • (1) within constitutional power of gov;
        • (2) further an important or substantial gov interest;
        • (3) gov interest is unrelated to suppression of free expression; and
          • Almost all action comes at this prong – seems like an easy way to get around 1st Amend prohibition against content discrimination
          • Texas v. Johnson one of the rare instances where gov loses b/c they lose under this prong
        • (4) incidental restriction on speech no greater than essential for furtherance of the interest (like narrow tailoring)
  • State asserts its interests to try and overcome O’Brien 3rd prong
    • Prevent breach of the peace
    • Preserve flag as a symbol of national unity
  • Court considers flag burning a form of speech known as “expressive conduct”
    • Says there are times when conduct has an expressive component ? flag burning is speech
    • Court discovers that gov is really trying to suppress certain viewpoints about the flag – viewpoint discrimination (clear constitutional violation)
            • Can’t protect the flag like this b/c it cuts off what is unique and powerful about it as a symbol – the numerous meanings that inhere within it
            • Can’t impoverish the cultural realm by trying to restrict the meaning of a symbol that is capable of so many different interpretations

Texas v. Johnson provides a glimpse for the court of the value of the openness of meaning that is arguably a function of / more prevalent in dealing with images vs. text

  • Images tend to be more multivalent and less transparent than text
    • Comes up again in photography section


Wall text

  • “Read All About It” article ? most viewers spent far more time looking at wall text accompanying art rather than looking at the art itself
    • Idea that you should be educated by art – have to “get it”
  • Is there a difference b/w how images speak and how words speak?  What does juxtaposition of the word and image do to the message being conveyed?
    • Does it change or foreclose meaning in a way that might be called something like censorship?
            • Whose meaning are we trying to get at?  Artist, curator, viewer?
    • Posner (Miller v. South Bend): the reason people think art is protected is b/c most people don’t like art, and there is a dutifulness to how we look at it
            • Evident in the obsessive reading of wall text
            • But is there a loss of pleasure here?
  • Iconoclasm ? historical anxieties about images
    • Gender – concern about images infused with female sexuality makes images dangerous
    • Class – images thought of as available to lower classes also makes them dangerous
    • Fusion image and prototype – idea that all images have a religious character, and thus they are rivals to God
  • This all adds up to a way in which images are alive, powerful, dangerous, and out of control
    • Gravitate to the wall text to try and control the images – make them more like the rational ideas we wholeheartedly protect

Bent in 1st Amend jurisprudence fits with these longstanding anxieties that have permeated Western thought



Questions to keep in mind

  1. Can bodily movement be considered “speech”?
    1. Distinctions b/w: art vs. entertainment, high vs. low, ballet vs. stripping, good vs. bad (quality), rational vs. irrational, ideas vs. emotions, verbal vs. non-verbal, choreographed vs. not choreographed, speech vs. conduct, painting/film vs. live performance
    2. Posner says questions of whether dance is speech and whether art is speech are one and the same
      1. Says nude dancing is unquestionably speech
        1. Says can’t make distinctions for 1st Amend purposes – all materials should be included within the boundaries of 1st Amend speech
    3. Easterbrook draws a distinction (dissent in Miller v. South Bend) – says nude dancing can be classified outside 1st Amend without posing a threat to artistic expression (i.e. painting)
      1. Differentiates – but struggles to make the distinctions relevant for 1st Amend purposes
        1. Significant distinction b/w live performance and the same performance captured on film
      2. Both agree that photos appeal to emotion and aren’t “ideas” in the traditional marketplace sense – but Posner says marketplace also protects emotions, where Easterbrook disagrees
  2. Can the female be moved from the position of “object” to being the actual source of speech (the “subject”)?


Barnes v. GlenTheatre (1991) [appeal of Miller v. South Bend (1990)

  • Is nude dancing speech (meaning “expressive conduct”)?
    • Court says yes – but it is only marginally speech
    • “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the 1st Amend, though we view it as only marginally so”
  • Is it a 1st Amend violation (under O’Brien) to require nude dancers to wear g-strings and pasties?
    • (2) Gov interest is to protect societal order and morality
    • (3) This interest is “unrelated to the suppression of free expression” b/c regulates all nudity across the board, not just nude dancing – and all nudity is unrelated to speech
      • Adler: this is what the court says, but may be otherwise
    • (4) G-string req is an incidental restriction no greater than necessary to achieve the law’s purpose
      • Court recognizes that req might change the meaning of the speech a little, but says it is hardly significant
        • Texas v. Johnson court said telling someone to burn the flag another way was unacceptable – but here it just causes an insignificant change in meaning
  • Souter’s concurrence – doesn’t justify on moral grounds, but says the state’s interest in regulating nudity has to do with the “secondary effects” of such conduct on the community (rise in crime, prostitution)
    • This became the basis for the plurality in the 2nd nude dancing case before SC
  • Scalia’s concurrence – says 1st Amend isn’t even implicated here
    • Doesn’t want to open the universe of speech and make everything subject to 1st Amend scrutiny
  • Dissent says regulation fails O’Brien test b/c it targeted the “communicative aspect of the erotic dance”


Adler’s article - Girls! Girls! Girls!: The Supreme Court Confronts the G-String

  • The legal struggles over the meaning and dangers of the gyrating, naked female body can be fully understood only when placed within a broader context: the highly charged terrain of female sexuality
    • Nude dancing cases are built on a foundation of sexual panic driven by a dread of female sexuality
      • Analogizes to Freud’s castration anxiety – must keep the woman’s hole covered so that it isn’t revealed that she doesn’t have a penis; g-string serves as the perfect fetish
    • They regulate gender and sexuality – not just speech
  • Free speech law governs culture, yet culture also governs free speech law




Pattern within law of censorship focusing on photography as a particular medium

  • Obscenity law and photography go hand in hand – focus (until this fall) usually on photography
  • Child porn law focuses exclusively on photography – invention of the camera / photography viewed as the sine qua non of porn
  • Text vs. image illuminates the discussion – photography as a subset of images seem to be the crux of what the law is going after


Why is photography so vulnerable to censorship?

(1) May be seen as a particularly dangerous medium

  • We assume a relationship between photography and truth
    • Photo as a slice of life, portraying something that was real
      • Resembles child porn law – it is always real
  • Notion that there is a person behind the photo to whom something is being done
    • Resembles court’s thinking in child porn law – harm is being done
  • Question of complicity
    • Notion that photographer doesn’t intervene, becomes a predator in a sense in that he wishes for the event to continue and capitalizes on it rather than helping out the subjects
      • Child porn law restricts both the photo and the underlying act it captures
        • Punishes the end user to try and eliminate the behavior in the first place
      • But tort law says no responsibility to intervene
    • Sontag: war photos – when a photo has the choice been life and a photo, should choose the photo

(2) May also be seen as incompatible with the assumptions about the marketplace model

  • Less clearly a speaker behind the speech
    • Sometimes can feel the presence of the author, but there is something about the medium that makes it less susceptible to being seen that way
      • Photos never belong to the author – they are “of the world”
      • Also connected to the idea that the camera captured the photo – not the author
    • Sontag: more willing to see a photo as a found object than as authored work
  • Photo as open to multiple interpretations – hard to think of as presenting a particularized idea
    • Dangerousness of putting something out there when you can’t control its message
    • Capacity of photos to lie is particularly dangerous b/c of the assumption that they tell the truth
      • Sontag: photographer can betray the subject
      • Malcolm criticism of Mann – girl betrayed b/c of cropping done to photo

Sontag arguments in favor of censorship

  • Photos have little inherent meaning, so shouldn’t be part of marketplace of ideas
    • Photos are pretty shallow, so our political discourse won’t suffer if we restrict them
    • Also photos can’t be ascribed to the ideas of one author
      • If the meaning of photos is so contingent on the context / how they are presented, maybe we don’t lose much if we censor them
    • Photos can appeal to our passions – to the extent we envision a “reasonable” marketplace of ideas, passionate photos might not fit in
  • It is easy to dismiss photography as not art
    • Confusion of the photo and the world – photo seems to be the thing itself and not a mere representation
      • Underlies iconoclasm
      • Also resembles MacKinnon – porn isn’t a representation of sex, but rather sex itself


Do photographs deaden us?

  • Sontag went back and forth on this question throughout her career
    • Initially said images of concentration camp survivors lost their power over time
  • If we believe they do, there is an argument against always seeing them on the cover of the newspaper
    • But in some respects, text can’t do what images do
      • Abu Graib photos made the issue explosive, changed public debate
      • But then could argue that conversation about torture now evinces more mainstream acceptance of its legitimization than when these images first came out
  • Adler / Sontag: more complicated – when images come out, we think they will change people’s perceptions, but they may end up deadening us, legitimizing and normalizing what they are depicting rather than stimulating outrage in the viewer


Should news organizations self-censor?

  • In Vietnam, saw photos of coffins and body bags with American soldiers in them
    • Bush made it clear he didn’t want to see these kinds of photos from Iraq
  • Sept 11th photos – why aren’t we allowed to see the jumper photos?
    • Magical quality of the photo – something real in the picture b/c it captures a specific moment
      • Something more real about seeing the individual right before he died
    • Maybe don’t need to see pictures of the individualized horror because it is close to us
      • Different from images of concentration camps, which are farther removed from us
      • But other 9/11 images being used for political purposes – only these kept from sight


The photograph as truth is an extremely strong trope in our cultural understanding at the same time as the capacity for the photograph to lie.


Museums, Galleries, and the Public: The Politics of Art


Three types of “attenuated censorship” ? all bound up in politics and the culture wars

  1. Gov funding
    1. At what point does denial of a subsidy ever amount to censorship?
      1. Scalia says never
    2. And clearly a big difference b/c not receiving funding and being thrown in jail
  2. Curatorial decisions
    1. Do these ever rise to the level of censorship?
  3. Public art
    1. How does publicly displayed art / art owned or commissioned by gov change the equation?




Questions to keep in mind

  • Relation to the political culture wars: 1989/1990 – 1999 sensation case
    • Mapplethorpe obscenity case occurred at same time as storm involving the NEA
    • Came shortly after Serrano controversy – NEA funds went to an institution, which funded Serrano’s “Piss Christ”
      • Came to be a powerful icon of the culture wars – Senator D’Amato ripped this picture up on the Senate floor
      • Importance of AIDS – use of bodily fluids bore a political connotation that may have ignited the controversy
        • But could view as referencing the degradation Christ experienced in his lifetime
        • Also many viewers thought work was beautiful until they read the title
    • Battle over Wojnarowicz’s work – involved images of gay sex, viruses and sperm
      • Wojnarowicz captured the nasty, bitter battle in his essays
        • One called “Post Cards from America: X-Rays from Hell”
        • Another about wanting to burn Mapplethorpe’s body, referencing flag burning
    • Marlon Riggs film “Tongues United” about gay black men
      • Buchanan used images from the film as part of his campaign – to show the kind of work that the NEA has funded
    • Certain artists were funded and then funding was revoked
  • Why was art on the front lines of the culture wars – why not focus directly on AIDS / gay rights activism?
    • Looking to art as a means of learning about the culture (anthropological model)
      • But this was a relatively sequestered world talking to itself before gov brought it into mainstream
    • Political opportunism – going for shock value, making a rhetorical point
      • But why choose an artist as opposed to AIDS activist organization?
        • Something about the inaccessibility of it – Scalia shows how easy it is to make these people sound like idiots
    • Ability to capture something quickly
      • Iconoclasm – art becomes highly symbolic, when you take over a country one of the first things you do is pull down all the statues and art
        • So becomes something of a testament to the power of these images
  • Questions of elitism
    • Artists attacked were gays, lesbians, and people of color (w/ exception of 3 straight white women)
    • Calling these people the cultural elite in the 1990s seems odd
  • Should gov fund the arts?  If so, how?
    • Question can be broken down into (1) what does gov funding actually do for the art, and (2) what is the purpose / intrinsic value of art?
      • Art has a huge economic value in places like NYC
      • Also has instrumental values – encourage diversity, help those disadvantaged, etc
      • Also argument that we want good art (assumes that gov funding will get it for us)
  • What are the 1st Amend limits on funding choices?
    • Tremendous emphasis placed by writers of these court opinions on the political context in which each case arose – politics front and center in effecting the legal decisions


National Endowment for the Arts v. Finley (1998)

  • NEA chair empowered to ensure that “artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American people”
    • Court essentially guts the statute – chair doesn’t have to take decency and respect into consideration but merely keep them in the back of her mind, statute is only hortatory
      • Dissent says statute means what it says – grants must be given according to standards of decency and respect for diverse beliefs              
        • Talks about Mapplethorpe and Serrano – says Congress was trying to ensure those kinds of funding decisions didn’t happen again
        • Adler: they’re right – majority’s interpretation of the emptiness of the statutory language is wrong
    • All pointing to the political context – maj says Congress worried about constitutional issues, dissent points more directly to specific funding decisions


Basic doctrinal framework in Finley 

  • Two precedents lurking in back of court’s mind
    • Rust – when gov is acting as a speaker, can require individuals to say one thing that not fund speech that is for the opposition
    • Rosenberger – when gov is acting as a patron and giving money to all, can’t discriminate among the speakers based on viewpoint
  • Also in background are political circumstances and their effect on the court
    • Worried that too strong an opinion in favor of the NEA’s right to do whatever it wanted would provide fuel to the NEA’s opposition
    • Also gov can cut funding of the arts at any time
      • So court is protecting NEA to some degree through its implausible reading of the statute
      • Goldberger NY Times article ? says advocates of the NEA forced to portray art as democratic, accessible, unthreatening – left to their opponents to present art in terms of creativity, and to admit the tremendous, terrifying power that art can posses
  • Issue of how the 1st Amend applies in the context of subsidies / gov funding
    • Court says ? although the 1st Amend has some application in this context, gov may allocate competitive funding according to criteria that would be impermissible if direct regulation of speech was at stake
    • But even in the provision of subsidies, gov may not aim at the suppression of dangerous ideas
  • Finley dissenters
    • Scalia and Souter both say statutory language means what it says
    • Scalia says the 1st Amend doesn’t apply here
      • Says can’t equate the denial of a taxpayer subsidy w/ measure aimed at the suppression of dangerous ideas
      • Also says NEA already required to discriminate based on excellence, so can’t say there is a 1st Amend problem with further required discrimination imposed on the NEA
    • Souter says statute is precisely aiming at the suppression of ideas
      • Says given the political context, this legislation was enacted specifically to deny funding to “indecent” work, and is therefore clearly a 1st Amend violation


The Brooklyn Institute of Arts & Sciences v. City of New York (1999)

  • Brooklyn Museum case – Ofili painting of the Virgin Mary sparked the controversy for Giuliani and the media that culminated in City of NY threatening to revoke all funding from the museum
    • Adler: really doesn’t look dung-splattered, seems like a mischaracterization of the work
    • Painting subject to multiple interpretations
      • Particularly subject to a reverential, rather than blasphemous, reading
      • Also artist from a community in which elephant dung is not a negative thing
  • Court holds that this is a clear 1st Amend violation
    • How to distinguish Finley?
      • Finley dealt w/ prospective funding, here the city was threatening to revoke funding that it had provided to the museum for a century
        • Court stresses retaliatory nature of gov’s conduct
      • “If there is a bedrock principle underlying the 1st Amend, it is that the gov may not prohibit the expression of an idea simply b/c society finds the idea itself offensive or disagreeable” (quoting Texas v. Johnson)
        • Court stresses that Giuliani really disagreed w/ the message being expressed – was withdrawing funding to punish museum for conveying such a message
    • What about in the notion that the NEA can only fund work that is “decent”?
      • Constitutionality of this may depend on how strongly you think “decency” is a viewpoint
  • Court says that “[t]he communicative power of visual art is not the basis for restricting it…but rather the very reason it is protected under the 1st Amend” (citing Bery)
    • Notes discussion of the power of visual images vs. books (p.651)


Komar & Melamud project – meditation on the question of what would happen if art were left to the marketplace

  • Painted a “most wanted” and “most unwanted” for various countries – the “people’s art”
    • Generally all wanted similar things – serene landscapes, historical figures, traditional aesthetics as opposed to geometric modern art that doesn’t present a clear message
  • Could also see this as an indictment of letting the gov decide




Questions to keep in mind

  • What is “censorship”?
    • Is it censorship when a curator changes the location of your work?
  • What policies should govern museum and gallery display?
    • Question about who these shows are for, who the audience is, etc
      • In some ways, mirrors the discussion about the NEA – is it supposed to be good for us, or what we want?
    • What should the point be? Celebration? Veneration? Criticism?
  • What do these incidents tell us about interpretation, meaning, and authorship?
    • Is it even possible to have a neutral show?
    • Is it possible to show a work / object in a way that is true to its initial meaning?
  • Should different policies apply to art vs. history?
    • But some crossover – i.e. “In the American West” show
  • Chilling effects made visible
    • Often see court discuss the danger of an overbroad / vague statute is not only for the parties before us, but for all the parties we can’t see who will self-censor as a result of this standard
      • Worry that people will steer clear of speech that is actually protected out of fear
      • Can’t measure this chilling effect – don’t know what people would have said if they hadn’t been afraid
        • But these incidents give us a rare glimpse of a chilling effect in action – curators assemble a show and then take it down before the audiences can see it; actually get to see what they would have said in the absence of some kind of fear
          • i.e. “Back of the Big House” show


Robert Hughes piece addresses the role of the museum in America, begins by cataloguing the spate of self-censorship that occurred in the 90s

  • Talks about the bankruptcy of American culture – the notion that art should be therapeutic, educational, moralizing
    • Also rejects the notion of art as dispelling class rage by opening up a morally uplifting realm
  • Simultaneous with censorship causing exhibits to be taken down, it may have also been good for the art market – brought certain artists into the mainstream, made their work recognizable, etc
    • i.e. Mapplethorpe’s work increased in value tenfold because of the controversy

*Pay attention to this essay – an interesting piece that documents the terrible pressures that American museums face


History of exhibits taken down:

  • Enola Gay (aircraft that dropped the atomic bomb) display
    • Show was canceled and then shown with a very pro-atom bomb perspective
  • “Back of the Big House show” ? purported to show the rich culture within slave quarters, even in the face of strong oppression
    • Show was fully assembled and then taken down a few hours later, largely because African-American staff members at the library objected
  • “The West as America” ? took classic American paintings of the West, and with the use of heavy-handed wall text, used the paintings to vehemently critique the (racist) underpinnings of Manifest Destiny
    • Put forward a political reading of history by examining the assumptions in these paintings
    • Show was heavily criticized
  • “Seasons of Life and Land” ? photos of Arctic wildlife             
    • Senator from Alaska thought they could be seen as propaganda opposing the pipeline, so display was moved to the basement of the museum
  • Freud show
    • Was canceled and then significantly rearranged and shown as altered


Parallel to newspaper’s choice to publish a piece and its right to do so ? may call this good judgment or may call it self-censorship – either way these choices extremely affect what we see


How could you plan a show involving the Enola Gay in a way to satisfy all the constituents, i.e. veterans who want to commemorate this historic moment as well as those who wanted to critique and possibly condemn it?

  • Is there anything wrong with solving the problem by presenting all the points of view?
    • Run the risk of offending both sides, and accomplishing neither objective effectively 
    • Even admitting another POV is deeply offensive to come
  • Could display without any explanation, and let the audience make their own interpretation
    • Takes almost all power away from curator
    • And by virtue of having the exhibit in a museum seems to be glorifying / venerating the act
  • Is a neutral exhibit really possible?


ICA’s decision regarding the Levinthal exhibit

  • Would track Mari Matsuda’s ideas – make a distinction b/w Levinthal as a white artist and Wilson as a black artist in the permissibility of them using images of stereotyped black figures
    • Wilson’s work is about what we do and don’t see in museums, and how those decisions are shaped by race ? institutional critique exploring self-censorship, commenting on the tensions in this area
    • Similar to Andrew Fraser – performed as a docent in a museum
  • A lot of what we do and don’t see is shaped by the private actors who make the decisions all the time and shape the marketplace
    • Their decisions are often shaped by concerns like those Matsuda writes about


Elizabeth Braun incident

  • Muybridge commemoration – work compiled that seemed to reference Muybridge
    • Exhibit included the figure of a nude women approaching you and getting closer – ends with a close-up on the belly button, but pubic area shown in many shots (Lewitt piece)
  • Braun (curator of museum) concludes the piece is offensive – connotes a peepshow, is degrading to women
    • She notes that this probably wasn’t the artist’s original intent, and this meaning had been imposed on the piece b/c of the passage of time
  • She wanted to move piece to another room, add wall text explaining why it was moved, etc
    • Ultimately the piece was removed
    • Curator of the exhibit asked for the entire thing to be taken down in response
  • Art community was in an uproar about a museum curator censoring work like this
    • To include piece in a show about Muybridge already changes its meaning
    • Any curatorial act that puts piece with other pieces changes its interpretation
      • What is the difference b/w putting Lewitt with Muybridge or adding to a show on the female body?
      • Adler: calling the latter censorship and the former curating is a fanciful distinction
  • Good curating is always imposing an interpretation on a piece ? complicates the question of who is speaking and what a work means
    • So framing the piece in the context of Muybridge or in the context of gender changes it
    • This aspect of display illuminates some of what is going on in Piarowski

Nelson v. Streeter (1994)

  • Involved art student’s painting “Mirth and Girth” of ex-Mayor Washington
  • Case arises against the Alderman for removing the painting
    • Threshold issue ? do the officials have immunity?  Were they acting under the color of the law?
      • Posner says no – local gov officials can’t go onto private property w/o invitation, seize a painting because they don’t like it, and remove it from public completely
        • Compares to going into a private home and burning books


Another art student at same institution (pseudonym Dread Scott) created the piece “What is the Proper Way to Display an American Flag?” – to look at piece you had to step on an American flag

  • Veterans groups sued; but lawsuit was dismissed
  • There were also numerous protests, bomb threats, etc
  • And gov funding for the institution was cut from $70,000/year to $1/year in response


Piarowski v. PrairieState College (1985)

  • Piarowski made sexually explicit glass windows and abstract glass windows
    • Sexually explicit glass windows were based on Beardsley’s “Lysistrata”
  • College asked him to move the windows to a gallery space on a different floor
    • He said moving them would change the meaning of his work as a whole
  • Posner ?
    • Begins by saying there was no racial, sexual, etc message in the windows – art for art’s sake
    • Notes that they were a commentary on Beardsley, but says average people wouldn’t know that
      • Suggesting that work can be displayed in educated vs. uneducated communities
      • But this seems elitist – and should we take audience’s frame of reference into account?
    • Says not a 1st Amend case
      • (1) the meaning of the work wasn’t political, politically-motivated
      • (2) relocation rather than suppression of the work
      • (3) plaintiff is an admin of the college, and therefore his work reflects on the college
    • But doesn’t tell us which of these factors matter most – unlikely that all 3 will show up again
  • Narrow, fact-specific holding ? concerned about interfering w/ curatorial judgments – doesn’t want to start telling museums where they can display certain work
    • Really wants to avoid laying down a precedent, although reserving the possibility that the 1st Amend may apply in these types of circs
    • Deferential to the complexity of these kinds of decisions, how they may interact w/ free speech rts


Close v. Lederle (1970) [1st Cir opinion]

  • Art instructor put up controversial show – it was removed by university pres and provost
    • Instructor claimed an invasion of his constitutional rights
  • District court held that embarrassment and annoyance, causing university to conclude that the exhibition was inappropriate, was insufficient to warrant interference w/ plaintiff’s free speech rights
  • Court disagrees ? says there are degrees of speech
    • Art wasn’t expressing political or social thought
    • The corridor where paintings were was regularly used by people and children
      • University was entitled to the primary use to which the corridor was put




Serra v. U.S. General Services Administration (1988)

  • Serra sued after GSA took down his “Tilted Arc” sculpture
  • Court begins by saying art just isn’t that important under the 1st Amend – lesser 1st Amend status
    • Says under some circumstances art may constitute 1st Amend speech (pre-Bery)
    • Court says no political message, so 1st Amend doesn’t apply fully
  • Even if there is a 1st Amend claim here, it fails because the “removal” wasn’t content-based
    • Because no evidence that Serra was expressing an idea
    • Also b/c of the uncertainty of the meaning of the work
      • This problem still exists after Bery – gov removal of art can’t be a response to its message, but sometimes that message can’t be reduced to words
        • Shows the danger for art in a 1st Amend analysis
  • Also says Serra is free to express his views through other means
    • But what if method of expression and meaning are inextricable? If art can’t be reduced to language, can only be said through the medium, then this is at odds with how art communicates
      • Serra claimed the sculpture was site-specific – moving it would completely destroy it
        • How far would we take this argument? Would gov not be allowed to tear down surrounding buildings? Could they put another sculpture next to it? (e.g. Vietnam memorial)
      • Stronger argument than saying the meaning would change – it would be obliterated
        • Other arguments in favor of Serra are that the work was made with the understanding that it would be a permanent installation, and that you can’t understand the value of a piece of art immediately—must give it time
  • Court stresses “relocation” element of the case
    • But the piece is currently housed in a warehouse, and Serra has disowned it


Akin to O’Brien type of analysis – once gov interest isn’t related to the suppression of speech (here court says it has to do w/ the way the sculpture is blocking the plaza), then the 1st Amend analysis rolls right out

  • Adler: not surprised by the outcome, hard to see this as a 1st Amend case – non-content-based reasons for removal b/c the sculpture was in people’s way, “owned” by gov, etc
  • So what was driving Serra, outside of 1st Amend concern?
    • Saying that just b/c he sold the gov his work doesn’t mean that they can destroy a work of art
      • Something special about art, something uncivilized about its destruction by gov
      • They didn’t buy a reproduction – it may belong to gov, but it also belongs to Serra
        • He has a continuing interest in the piece, and maybe the public does too b/c art as property belongs to all
    • This underlies doctrine of moral rights ? premised on notion that art is special, not like other property, and even after selling it you can still control what happens to it to some degree
  • Serra trying to make a moral rights argument couched in 1st Amend terms


Elitism concerns underlying Serra court’s judgment

  • Not only should we not make the minimum wage secretary go out of her way on her lunch break to get around the sculpture, but we also don’t want to force her to fund offensive NEA art
    • But our taxes go to fund many things that we don’t want to support
  • Also paternalistic – saying we won’t put challenging art in places where people can interact with it
    • Being elitist in a different way – saying Serra art can’t be accessible to people who work 9-5 and maybe don’t have time to go to galleries
  • And maybe elitism at play b/c the court is saying that if the art is easier to understand / more attractive, there is a chance it will be left alone




Sanford Levinson article about public spaces and monuments / speech

  • Liberty Monument ? erected to commemorate the white rebellion against a mixed-race gov
    • 1934 text added a white supremacist statement on the monument, funded by gov money
    • 1974 brass plaque placed on monument saying that the 1934 language wasn’t part of the original monument, and sentiments expressed were contrary to the beliefs of present-day New Orleans
    • 1990 city council ordered that granite slabs be placed over the 1934 text
  • Gov as speaker in a particular context – gov can be the arbiter of our nation’s history
    • Different situation than commissioning art that ends up saying a particular message


What should happen to these kinds of monuments?

  • Levinson says don’t want to destroy it because we don’t want to erase history, but also anything you do with it can be interpreted as edification
  • Maybe take out of a public space and put it in a museum
    • But will still influence people in ways we might not want – and arguably still edification


Maya Lin Vietnam Memorial

  • Criticism of the memorial when it went up is reminiscent of the Serra piece – ugly wall, etc
    • Now is the most popular monument in DC
      • Power of the names vs. merely knowing a statistic and seeing an abstract monument
        • Similar to effect of Arlington Cemetery, individual crosses for each grave
  • Why was it so controversial?  Why was the statue of the 3 soldiers built alongside it?
    • Monument isn’t a blatant celebration of the war – also elicits / allows for the opposite viewpoint
      • Most people read it initially in plans as an anti-war memorial
      • Design was a dark cut in the Earth, a wound; memorial is below ground
    • Compare to traditional WWII memorial in DC


Ground Zero – Memorializing 9/11

  • Ongoing debate about the design of the building, what should be in it, and the monument ?
    • What purpose should art / history should serve in the space?
    • What purpose should the architecture of the building serve?
    • Questions about who this space is for, whether the gov can/should speak in a way that is responsive to the many groups that represent constituencies
      • Is the monument for the families?  Is it for NYers?  Americans?  The world?  Freedom?
      • Who does this space serve and what should we do with it?  In designing it, what should the gov say about what happened?
      • Is it for the present or the future?
  • IFC mission statement: There are two interpretive approaches that can be pursued for the WTC.  The interpretation could focus only on the events of 9/11 and be a respectful memorial to those who lost their lives.  Alternatively, the site could be used to help us better understand the meaning of what happened on this tragic day and to encourage future generations to learn from this experience.
    • Conflict between memorializing and understanding the meaning of what happened
      • Resembles what happened with the Enola Gay
    • Many opposed the art museum because of concerns that it might show anti-patriotic art
  • Given these competing interests, and the explosive quality of the conversation going on around it, what should we do with this sacred space?
    • Maybe an inherent problem with trying to memorialize such a recent event
    • Conflict between notion of rebuilding and the families who are still in mourning, want the building / memorial to represent that grief rather than a commemoration and a moving on
            • Admission of multiple points of view may be itself insulting to the families
    • Also different than war memorials, where the Americans who died were lost overseas, aren’t missing / buried on our own ground, where the memorial is going up

Levinson’s notion of sacred space makes sense here

  • Anything we do is a significant statement, is the gov making a statement
    • These choices have deep symbolic value, which is part of the problem




  • Moral rights of artists – how they can control the use of their art
    • Distinction again between “art” and other stuff – made here because an artist’s soul is in the work
      • Adler: protecting art this way might not be in the best interest of art
  • Copyright law – focus on issues related to trends in contemporary art
    • General theme – copyright law was designed to encourage artists to speak, but more critics are saying it suppresses creativity and speech
    • How do we deal with a law that valorizes the concept of originality, when art is often about the impossibility of originality (i.e. appropriation, copies, etc)?




Questions to keep in mind

  • Why does art merit special treatment?
    • i.e. 1st Amend exception for work of serious, artistic, or literary value
  • Question of defining art – moral rights focuses solely on the visual arts
    • Why is this the case?  Is this definition working?
  • Are moral rights good for art?  Does it make sense to protect art in this way?
    • Adler says she isn’t a big fan – disconnect b/w policy underlying moral rights law and the practices of contemporary art
    • Normally when you buy something, it belongs to you
      • Moral rights law says that if the thing you buy is “art,” then there is some right in the piece that remains for the artist, even if it has changed hands numerous times
      • Because the creator is an artist, retains a continuing negative servitude in the work


John Henry Merriman, The Refrigerator of Bernard Buffet:

  1. Right of integrity
    1. Artist can prevent alteration of his work
      1. i.e. incident regarding Buffet’s refrigerator panels – artist can restrict buyer’s right to separate portions of the work and re-sell as separate works
  2. Right of attribution / paternity
    1. Affirmative right: artist can insist that his work be distributed / displayed only if his name is connected with it
      1. i.e. Guille case – artist can insist that his paintings be attributed to him even though he has contracted to the contrary
    2. Negative right: artist can insist that his name not be associated with works that are not his
  3. Right of disclosure / divulgation
    1. Artist can refuse to expose his work to the public before he feels it satisfactory, and he retains the right to decide when it is complete
  4. Right of retraction / withdrawal
    1. Artist can withdraw work even after it has left his hands (i.e. he can ask for it back)


US regime prior to enactment of VARA and various moral rights laws

  • US resistance to moral rights
    • Dali – contracted to complete a painting on TV, but then refused to do it
      • Case discussed solely as a contract law question (statute of frauds, mutuality, definiteness) – Dali’s motion is denied because he made a contract
      • If this occurred in a moral rights regime, argument would have been that he had a right of disclosure –right to decide not to complete work
    • Vargas – court rejects artist’s right of attribution/paternity
      • Right of paternity is inalienable in Europe – would have held that he couldn’t waive the right to have his name attached to his work
      • Court specifically says that moral rights are a foreign concept
    • Gilliam – deviation from outright rejection of moral rights
      • Court finds a way to enforce a right of integrity in the absence of any US moral rights law
      • This case used by moral rights advocates – shows the possibility of using other doctrines to get at moral rights protection (here the right of integrity)
        • But the validity of portions of this case is undermined by SC precedent
  • WHY this resistance?
    • Assault on our notions of exclusive rights to property, freedom of contract
    • Different relationship to art
      • Compared to Europe, we have a different understanding – think of art as what we import


Contemporary US picture (state statutes prior to VARA)

  • CALIFORNIA model (drafted by Merriman)
    • Focus is on integrity and public interest in art – public sometimes has standing to preserve art that merits “substantial public interest”
      • Higher standard than “recognized quality”
      • Courts will have to decide this in litigation – is a work qualified as such so that owner can’t destroy it, and public can intervene to “save” the work?
    • Applies only to “fine art” of “recognized quality”
      • Implies that the public doesn’t have a significant enough interest in works that are not of recognized quality
      • “Recognized quality” presents similar problems to what we see in obscenity law – issues of quality and artistic value, unpopular artists, etc
        • Cases divide on whether it must be the artist or the individual work that must be recognized
    • No public/private display distinction – applies to all art
    • Destruction is forbidden if art meets the statutory requirement of fine art of recognized quality – except by artist, who may destroy his own art
      • Tension in moral rights law – does the right of integrity extend to the right to prevent someone else from destroying your work?
        • If destroyed, arguably not damaging the artist’s reputation in the same way
        • Not concerned about the artist’s rights, but rather his reputation
    • Applies only to original, unique works – no prints, multiples reproductions
    • Duration of the rights = life + 50 years
      • Descent to artist’s heirs, and are transferable
      • Suggested that public’s rt to preserve particularly important works may exist in perpetuity
    • Problem of buildings ? if a work of art is attached / integral to a building so can’t be removed without damaging the building, the rights are assumed to be waived
      • Botello v. Shell Oil (1991) – a mural is a “painting” within meaning of the Act
    • Modeled on CA – protects works of “fine art” “of recognized quality” (CA with a tweak)
      • But broader definition of “fine art” – i.e. includes craft
    • Moakley v. Eastwick (1996) – act does not apply retrospectively to work created and transferred by the artist before the effective date
      • Consistent with VARA
  • NEW YORK model (AARA)
    • Focus is on attribution / paternity – notion that artist has fathered the work
    • Integrity protected to the extent that it is likely to harm the artist’s reputation (as it is in VARA)
    • Applies to “fine art” and to reproductions of fine art
      • To the extent you are concerned about the artist’s reputation, a modification of a reproduction that claims to be the work of the artist damages the artist’s reputation just as much as a modification of the original
        • This is not the case in CA or VARA – unique to NY
      • Wojnarowicz case concerned reproductions
    • Applies only to work that is publicly displayed
      • As long as artwork is kept in one’s own home, can essentially modify anything, even a recognized masterpiece
        • This is b/c altering the work—but never showing it—arguably wouldn’t affect artist’s reputation, but CA is concerned about the public interest and believes that maintaining works is specifically in the public interest
        • Also different in NY because the art market is greater – don’t want to be too intrusive in telling people what they can do with their private collections in order to protect / encourage the market
      • Maybe unlikely to happen anyway because the market functions properly – people won’t devalue their own collections that greatly
        • Would render CA’s provision about works of “substantial public interest” unnecessary
        • But the market doesn’t always function properly – there will always be artists who have money and want to modify other famous art, and also might be very costly to preserve a particular work
    • Allows destruction of art by anyone
      • This stems from the underlying focus of the statute – interest in the artist’s reputation, not the value of the work itself
      • Personality right – not about the public at all






Public interest

Artist’s interest

Fine art of recognized quality

Fine art + reproduction

Private and public work both protected

Applies to public display only

Destruction forbidden except by artist

Destruction permissible

Right survives artist

Limited to artist’s life


Why do some moral rights statutes forbid destruction, while others forbid only modification of the work but allow complete destruction?

  • Depends on the focus of the moral rights regime
    • One argument is that destruction isn’t as damaging to the artist as modification
    • CA forbids destruction b/c, regardless of artist’s reputational interest, the public has an interest in seeing works of recognized quality preserved
      • Thus destruction equally harmful to the public interest as modification
      • But CA does allow artist to destroy her own work
        • Allows artist to make final decision about what should comprise her canon
        • Pro-choice analogy – artist can decide whether to create or not; if decides to create, can change her mind
          • Constant comparison in moral rights law of artwork to artist’s child
  • For most works of fine art, only a protection against integrity of the work—not its destruction


Preservation issues

  • Some artists worked w/ cutting edge materials, and their works are now falling apart
    • i.e. Eva Hess
  • What kind of obligation should a collector have in maintaining this work?
    • Intent requirements vary in the statutes
  • Restoration / preservation may violate what the artist intended, and consequently violate the public interest in seeing art the way the artist wanted it to be seen
    • Maybe Hess worked w/ these materials knowing the work would fall apart
    • Resembles curatorial issues – work changes meaning over time, as it is re-shown, so what is the artwork that we care about in these statutes?
      • Is it the work as the artist envisioned?
      • The collaboration b/w the original work and the natural decay over time?
  • These statutes have limited time requirements, so these issues don’t often come up

Getting to the heart of moral rights law ? why are we preserving work? Which work are we preserving? Are we focusing on the artist and in some ways missing the complexity of authorship?


Federal statute – VARA

  • Protects integrity and attribution
    • More moderate in its emphasis
  • Protects works of “visual art” – no requirement for works of “recognized stature”
    • Photography only sometimes
      • Still photo images produced for exhibition purposes are protected, if they exist in a single signed copy or in a limited edition of 200 signed and numbered consecutively
      • Sontag concern: when does a photograph become art?
        • This definition doesn’t capture all photos that we would deem art, but ensures that artists are protected rather than regular people with cameras
    • No reproductions – but prints and limited editions of painting, drawing, print, sculpture if they are signed and consecutively numbered
  • VARA’s definition of “visual art” is constantly litigated over
    • Policy interest in not having VARA’s protections extend too broadly
    • Attempt to police boundaries b/w artist and regular people – notion of limitation seems important
  • Prevents destruction of works of art that are of “recognized stature” – otherwise destruction is OK
    • Higher threshold to meet to claim that a work of visual art can be protected against destruction
  • Rights under VARA ?
    • Note different levels of intent
    • Can be waived (compare to moral rights laws in Europe)
    • But can’t be transferred
  • VARA duration of rights
    • Works created on or after June 1, 1991 – rights exist for the life of the author
    • Works created prior to June 1, 1991 the title to which was not transferred by the author as of such date – life of author + 70
    • Works created prior to June 1, 1991, title was transferred by author – appears to be no protection

Downside of a more traditional, hybrid regime is that you can’t necessarily protect extremities


VARA says choices of display aren’t actionable “modifications”

  • So curatorial decisions that are displeasing to an artist aren’t actionable (i.e. Piarowski)


VARA preempts state art statutes to the extent they provide equivalent rights to those under VARA

  • Might not preempt causes of action under statutes that provide more expansive rights, such as:
    • Expansive definition of proected works, e.g. MA also protects craft
    • Public causes of action, e.g. CA
    • Rights of integrity that extend to reproductions, e.g. NY (Wojnarowicz)
    • Rights which extend beyond life of author (longer term than VARA)
  • Question of how relevant state statutes are, in light of VARA, remains to be seen


Carter v. Helmsley-Spear (1995) [2nd Cir opinion]

  • 1st significant case litigated under VARA – sets out the statute’s policy
  • Sculptors hired to put pieces in building – when it changed hands, they sued to have work preserved
    • Issue is whether the various sculptures in the building constituted one work, or various individual pieces ? court says they constituted one work b/c made for hire under Reid balancing test
      • Policing the boundary b/w art and the everyday – a mere work for hire wouldn’t have the same aura as a real work of art, spark of genius
        • But prejudice against works made for hire eviscerates a significant set of important artwork from VARA’s protection
      • Adler: this is an impressionistic test – can’t say for certain whether or not these were works made for hire
        • Moral rights law would be an alteration of traditional contract law notion that the owners were under no obligation to keep the works
        • Adler: this illustrates what a burden in general moral rights really are – seems ridiculous to burden owners with keeping the art forever
    • Court ends up saying work was made for hire, not protected by VARA – owners can do whatever they want with it
  • Adler: this is a decision about recognizing that courts don’t really like moral rights law very much
    • Has to do in part with the fact that enforcing them would be a huge burden


Flack v. Friends of Queen Catherine Inc. (2001)

  • Involved sculpture of Queen Catherine
    • Contract involved 4 phases – each was a clay model cast in bronze
  • Court first asks whether clay model is protected under VARA
    • Answer is yes – a “model” is protected according to the statutory language
  • Artist’s 1st claim: leaving sculpture outdoors was a grossly negligent modification
    • Court says this was just a passage of time modification, so not protected by VARA
      • Adler: this is wrong – this was gross negligence in maintaining or protecting the work, should view from that lens rather than modification
  • Artist’s 2nd claim: conservation was grossly negligent (assistant re-did piece poorly)
    • Court says this survives a motion to dismiss
  • Artist’s 3rd clam: that she has the right to see her work completed
    • Court says VARA doesn’t compel completion of a work
      • Slightly different in Europe – some cases do suggest a right to compel completion


Policy of moral rights

Wojnarowicz v. American Family Association (1990)

  • Involved appropriation of Wojnarowicz’s work
    • NEA had granted $50K to produce a catalog of Wojnarowicz’s work
    • Rev. Wildman sent out mailings that photocopied 14 fragments of Wojnarowicz’s paintings
  • Wojnarowicz sues – claiming his moral rights were violated and his reputation damaged by only showing parts of his work, not the whole work
    • Wildman claims Wojnarowicz made more famous by his use of the work
    • MoMA critic says Wojnarowicz’s reputation has been harmed – controversy may have helped Mapplethorpe and Serrano, but they were at different stages in their career
      • Court accepts this testimony, but says no proof of actual damages
      • Wojnarowicz wins and is awarded $1 – essentially a symbolic win
  • Justification for the win ? “because the intent of the bill [NY’s Artists’ Authorship Rights Act] was to protect not only the integrity of the artwork, but the reputation of the artist, the spirit of the statute is best served by prohibiting the attribution to an artist of a prohibited or publicly displayed altered reproduction of his original artwork”
    • “Extracting fragmentary images from complex, multi-imaged collage clearly alters and modifies such work” ? seems most focused on stigmatization of Wojnarowicz and his work
      • Would have been different if Wildman showed a portion of the work and noted it as such
    • “the test is clearly whether a reasonable person would conclude that damage to the artist’s reputation is likely”


Adler: by vindicating Wojnarowicz’s rights, the court is stepping on Wildman’s 1st Amend rights

  • There is a value in quoting people back – and can’t quote in entirety all the time
    • If you can excerpt someone’s writing, shouldn’t you be able to use extreme stuff from their artwork in a way that illustrates something powerful and important about it?
      • But when you see a quote, usually assume it comes from a larger context
      • Don’t always assume that images are excerpted in the same way
  • Adler: if Wildman’s pamphlet was an art piece, telling him that he has to change his wording would dampen the power of his speech
    • Really talking about fair use – in a sense Wildman is doing a fair use of Wojnarowicz’s work
    • Requiring a speaker like Wildman to be so accurate and complete in his representation of another’s work would likely intrude on his speech
      • She empathizes with Wojnarowicz’s position – but isn’t totally comfortable potentially limiting Wildman’s speech in this way


Hansmann & Santilli, Authors’ and Artists’ Moral Rights:

  • Offers non-pecuniary rationales for moral rights (more traditional justifications) ?
    • Work of art is an extension of artist’s personality, an expression of his innermost being
      • Art as artist’s children – paternity metaphor
        • Personal anguish felt by artist when something happens to his child in the world             
          • Adler: but movement in art world away from treating art as precious
      • Expressive component – relates to 1st Amend law
        • Artist herself is in the work – so personal anguish felt is stronger
      • Art is also related to the artist’s personal reputation
  • Also offers an economic justification of moral rights ?
    • Reputation can have a pecuniary component for an artist (analogous to franchise)
      • Having a work of art altered or misattributed can damage his reputation in a pecuniary way, i.e. a McDonald’s franchise selling dirty meat would hurt the franchise as a whole
      • Collectors, galleries, and museums who own work by a particular artist have a shared interest / investment in his franchise – in keeping her name and her work up to snuff
    • Public interest rationale for moral rights
      • Interest in common reference points, shared vocabulary
        • Adler: but if we take this notion seriously, the next step might be to take art from all who possess it privately – forcing public access to all art
        • Isn’t having a slide / reproduction enough for the shared reference point?
          • How far do we want to take this public interest?
          • Questions about uniqueness and authenticity are implicit in moral rights conversations (come up again in cultural property / looting contexts)
      • Authors suggest artists’ integrity rights may serve the public interest – allowing the artist to have a right of integrity will protect public rights


Adler’s concerns with moral rights law

What about the conflict b/w artist’s interests and public interests?

Sometimes the public interest and the artist’s interest clash

Serra case – artist wanted Tilted Art to remain, but public generally disagreed

French artist often destroyed his work – example of the artist not being well-positioned to estimate what the public interest might be

Is the artist the right person to entrust with the task of determining the public interest?

Moral rights law assumes this – preserve art by investing the power to enforce integrity / attribution rights in the artist

Why privilege the artist’s vision?

Suggests something deeper about authorship ? fantasy of a singular author with a vision, and the rest of the world has to get out of his way and receive his work as presented

This romantic notion has been under attack in contemporary art

Warhol and other contemporary artists challenged this

Also makes assumptions about the process of creation

But creative endeavors are often the product of collaboration, collective work

T.S. Eliot’s “The Wasteland” heavily edited by Ezra Pound, “Into the American West” show curators changed the meaning of the work by changing the context

These are assaults on the moral rights assumption that there is one author, and what she intended should control b/c the author knows what’s best

What about the value of destruction or modification?

There is a value in forgetting – may want to destroy work for that purpose

i.e. Levinson article – may be a real value to destroying the monument to racism

Sometimes harming a work of art actually makes a new work

Rauchenberg (transitional pop artist) took Dekoning (abstract expressionist) drawing and erased it – entitled his art “Erased Dekoning Drawing”

But many would say he should have done this to a reproduction

Harder to stomach than a curatorial change to the work b/c permanent

Jake & Dinos Chapman altered canonical Goya etchings

Adler: the Chapman version is good, but also loves Goya and these works were considered particularly precious

How can we claim to know what the public interest is here?

Duchamp put urinal in a gallery and called it art – committed an act of destruction b/c changed our conception of art

In this spirit of the creative value of destruction, we should reconsider the moral rights assumption that a work must be preserved precisely as the artist intended

Distinction b/w stopping someone from speaking and destroying the speech to make more speech

If Sally Mann had been prosecuted and forced to stop taking her photos, we would have lost many of her picture and Adler feels a real sense of loss about this

But Wildman using Wojnarowicz’s work isn’t causing the same kind of loss

While we may lose some of the aura of Wojnarowicz’s speech (see Benjamin essay), we are gaining Wildman’s speech

Back to the question: why is art special?

Hansmann & Santilli’s justifications ?             

Unique and highly individual works

Require substantial skill and effort

Peculiarly strong attachment

Acquired for expressive / decorative character – non-function and therefore less likely than other chattels to need modifications to serve their functions well

If we replaced the Mona Lisa with a brilliant forgery, what would be lost?

Many would say the aura (Benjamin)

But the best thing for art may be to free it from the notion of “one artist” and the shackles of being embalmed in a museum

Post-modernism, death of romanticism, etc

Adler’s location (NY City in a moment of contemporary post-modern art) allows her to take this position

  • Says moral rights is projecting a reifying a notion of art that is lost and over




1. Copyright overview

  • “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”
    • Adler: the balance that copyright should strike b/w property holders and new users has gone too far in favor of the property holder
  • Copyright protects “original works of authorship fixed in any tangible medium of expression”
    • Can copyright: literary works, musical works, dramatic works, pantomimes and choreography, pictorial graphic and sculptural works, motion pictures, sound recordings, and architectural works
      • Pictorial, graphic and sculptural works: 2D and 3D works of fine, graphic, and applied art, photographs, prints and art reproductions, models, technical drawings, etc “regardless of artistic merit”
      • But exception for utilitarian works
  • Exclusive rights of copyright owners
    • Reproduce the work; prepare derivative works (i.e. film rights to your book); distribute copies or phono-records; perform the work; display the work publicly; transmit sound recording digitally
      • How important an incentive is the promise of profit from a copyright?  How long does the copyright have to last to form an incentive to create?
      • Copyright law envisions a tight connection b/w financial profit and desire to create
        • But Adler says this isn’t quite right
        • Moral rights advocates say would also say desire for attribution is also part of it
  • Length of term for copyright works is very long now, and getting longer – culture getting more “locked up”
  • Lower threshold for something to be copyrightable
    • i.e. compared to “serious artistic, literary or scientific merit”

2. Originality requirement

  • Burrow-Giles(Oscar Wilde photo): court says photo in this case is copyrightable because of the posing, technique, etc that went into taking the picture
    • Counterargument would be that a photo is a mere encapsulation of reality, involving no creative thought or talent
      • Court says this may be true in the ordinary production of a photograph, but in this case photographer did considerable work – so photo is copyrightable
      • Differentiates Andre Carter-Bresson whose photos attempt to capture everyday life
        • Now we would say of course this is copyrightable – but then they worried about whether such photos were original at all
    • Court struggling with what level or originality would be required for copyright protection
      • Specifically concerned w/ photography’s ability to capture an event / real moment in time
  • Feist: “some creative spark, no matter how crude, humble or obvious”
    • Original means “not copied” in its most basic term – doesn’t have to be anything that we would find to have artistic merit
  • Bleistein: dealt with lithograph ads for a circus – are they copyrightable?
    • Notion of individuality and uniqueness in this opinion is romantic
      • Sense that each person, even in copying an original, brings something individual to work
    • Ads here are acceptable subjects for copyright even though they have little merit and appeal to uneducated people – no need for excellence
      • Case comes to stand for the proposition that we are not going to make judgments about value or merit in copyright law (unlike obscenity law distinctions based on quality)
      • Famous line about dangerousness of judicial assumptions about art
  • Copyright law enshrines a romantic notion of originality / creativity that has always been problematic in light of the strong tradition of artistic borrowing and allusion
    • Have law trying to protect art in the name of a value that much of contemporary art is attacking
    • See “Beyond Authorship” website – intro talks about the romantic notion of artist creation
      • Creative process is derivative, collaborative – yet we have an individualized conception of authorship that originated in romantic poetry

3. Idea / expression dichotomy

  • Satava: can copyright an expression of an idea, but can’t copyright the idea itself
    • What is the difference b/w what Satava did with a jellyfish and what Monet did with a haystack?
      • Court says the way Satava is expressing the jellyfish merges with an actual jellyfish – is an idea, not an expression ? not copyrightable for purposes of this case
        • Could only have protection against virtually identical copying – no protection against an artist merely doing something similar
      • Merger because of the realism of the sculpture
        • Policy concern – want other artists to be able to do jellyfish in glass, and there isn’t enough here that is different from what a jellyfish actually looks like
    • Copyrighting an idea would deprive the public of the necessary basis for creation
  • Gets to question when does something cross over from idea to expression

4. Useful article doctrine

  • Threshold question before you get to fair use ? is the original piece copyrightable?
    • Can only copyright those elements that are independent of the utilitarian aspects of the article – pictorial, graphic, or sculptural features
    • Must be conceptually separable from the useful article
      • Mazer v. Stein – lamp base that is a sculpture is copyrightable b/c separable from lamp
      • Esquire v. Ringer – problem was that there wasn’t a separability – the form was the function, there was no difference
      • Kieselstein-Cord – court says that b/c some people wore the belt buckles as necklaces, there is a conceptual separability that makes them copyrightable
        • No longer simply utilitarian articles
  • Stems from the idea that we don’t want to stifle creativity

5. Infringement basics

  • Steinberg elements of proving infringement ?
    • (1) Copyrighted original
      • Can’t be a useful article or a work-for-hire
      • Expression – not just an idea
      • Copyrightable regardless of whether © symbol is there
    • (2) Direct or circumstantial evidence of access to the copyrighted original
      • Copyright law acknowledges the possibility that two people can come up with the same expression of an idea independently – so need evidence of access to copyrighted original
      • Here was evidence that they bought TNY poster, hung it up in art director’s office
    • (3) Substantial similarity such that the copy is an infringement
      • When access to the copyrighted work is obvious, this is only question for court to resolve
      • Quotes two tests (sometimes used interchangeably):
        • Substantial similarity test: whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work
          • Court follows this one – says this was an infringement
        • Rejects ordinary observer test: where the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them and regard their aesthetic appeal as the same
          • Court says this is a more stringent test
      • When proof of access is established, required degree of similarity may be somewhat less
    • Court says there are differences between the pieces, but they are insignificant
  • At what point is it stealing vs. using our common vocabulary / shared references (Hansmann & Santilli)?

6. Fair use – “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright” 17 USC §107

  • Tests notions of artistic discourse
  • Steinberg also raises fair use questions – contrast w/ Demi Moore case
  • Fair use test ? the factors to be considered shall include:
    • (1) Purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes
      • Bad faith
      • Profit / non-profit
      • Parody or satire
    • (2) Nature of the copyrighted work
    • (3) Amount and substantiality of the portion used in relation to copyrighted work as a whole
    • (4) Effect of the use upon the potential market for or value of the copyrighted work
      • Most important factor
      • Balance b/w harm to copyright owner and benefit gained by the public for fair use – the less adverse the impact on the owner, the less public benefit need be shown
        • Two kinds of harm ?
          • Harm to market for original photograph
          • Harm to market for derivative works
            • Campbell: law doesn’t recognize a market for derivative use of critical work, including parody
            • Harm is one of market substitution – difference between suppressing demand by a withering critique and usurping it
  • Two problems
    • Tradition of artists borrowing from, looking at, taking inspiration from, and alluding to one another is an essential part of the history of art
      • i.e. Giorgioni, Titian, Manet, Sally Mann Venuses – looking at, copying, reinterpreting is the tradition of our history
      • How do we protect that in a copyright regime?  Can fair use do that?
    • Postmodernism issues
      • i.e. Duchamp take on the Mona Lisa with a mustache – tampering with, attacking a masterpiece central to Dadaism
      • Also critique of the notion of a singular, original author that copyright assumes


Rogers v. Koons (1992) [“String of Puppies” case]

  • Fair use test applied ?
    • (1) purpose and character
      • Says Koons exhibited bad faith b/c he ripped off the © notice
      • Says his work was for profit and this weighs against him
      • Koons says his sculpture was a parody of the underlying photo and society at large
        • Court says work parodied must be publicly known or its existence must be somehow acknowledged by the parodist, and also difficult to discern any parody of Rogers’ photo here
        • Court says Koons could have used any banal image – haphazardly picked Rogers’ photo, it wasn’t fundamental to the message of the sculpture
          • But what if he needed this particular work to make his parody?
          • Court says should have acknowledged the work, or used a known piece
        • Adler: Koons needs to copy to say what he wants to say here, and part of his message is about not revealing where the work was copied from
    • (4) effect of the use on the market value of the original
      • What is the harm to Rogers?
        • Not a market substitute, might actually increase demand for the photo
          • To the extent is suppressed demand among post-card buyers, this isn’t cognizable in copyright law – only deals w/ market for the original
        • Harm of being criticized / hurt feelings
      • Real question under 4th factor ? was there a market for people who wanted to license this photo to make sculptures?
        • Adler says probably not
  • Factors that influenced this decision
    • Court’s negative attitude towards Koons permeates this opinion
      • Lawyers, expert witnesses were condescending towards Rogers’ photo
      • Also may have been too definitive in telling audience how they should feel about the work, what message they should take away
    • Lawyers were naively trying to win on the claim that there was no infringement
      • Should have stressed the difference in making a sculpture vs. taking a photo – shift in medium might be enough to make the work transformative
        • Applies to 1st factor – purpose and character of the use
        • Court only saw a photo of the sculpture – couldn’t appreciate its differences
    • Court assumes that only parody qualifies as a commentary on the original work
      • But transformative work can make a commentary without being a parody
      • Blanch v. Koons – Koons used legs from a Blanch commercial photo in his painting
        • Won b/c his painting was a transformative use
        • Once you put your work in the world, it becomes of the world, belongs to all
  • Shows the unpredictability of fair use – if you can’t get a license to use a work, are you willing to hang everything on the likelihood that the court will decide in your favor after going thru these vague factors?


Campbell v. Acuff-Rose Music, Inc. (1994) [“Oh, Pretty Woman” case]

  • Use of word transformative in 1st factor
    • Not about how much the 2nd work transforms the original—instead about whether the work is being deployed in an inventive manner
      • Turning a photo into a sculpture alone isn’t transformative – but Koons could have argued a transformation in mood, i.e. celebration of puppies to kitsch
  • Commercial nature of the work not dispositive
    • Removes the emphasis on the distinction b/w commercial / nonprofit work – no longer the presumption that if you make money off of your work, it’s not fair use
      • Would have seriously changed Koons – presumption was central to court’s decision
  • Clarifies 4th factor
    • Can’t be compensated merely b/c the market for your product declines b/c someone does a copy that is a withering critique
      • Suppression of demand for original work based on a withering critique isn’t relevant
      • Rather the problem is if the 2nd work creates a market substitute
        • Koons court wasn’t making this distinction – didn’t ask whether his sculpture was a market substitute for a derivative work
      • Court says law doesn’t recognize a market for derivative uses that are parodies ? so if court determines your work is a parody under 1st factor, you’re home free under 4th factor
        • Assumes no copyright holder would license a work that lampoons his original

2nd and 3rd factors no longer significant in fair use cases – more like perfunctory steps

  • Due in part to Campbell, which says parodies almost invariably copy publicly known, expressive works
  • So 1st factor drives the cases – is most important


Leibovitz v. Paramount Pictures Corp. (1998)

  • Court finds fair use b/c the movie poster of Leslie Nielson for Naked Gun 33 1/3 is commenting on the pretentiousness of Liebovitz’ original photo of Demi Moore
    • (1) says the poster is transformative
    • (2-3) not relevant
    • (4) Liebovitz would not have been willing to license the picture


Mattel Inc. v. Walking Mountain Productions (2003)

  • Artist used Barbies and posed them alongside food and kitchen appliances
    • Court finds that this was fair use – says this is extremely transformative
  • The lawyering is noteworthy in this case
    • Mattel very aggressively went after this artist, even though he was small potatoes
    • But the pro bono lawyers for the artist were aggressive as well


Marjorie Heins – ­copyright lawyer, author of Will Fair Use Survive?

  • Copyright system originally envisioned as a balance – 1998 developments tightened / expanded copyright control and shrunk free expression safeguards
    • Sonny Bono Copyright Term Extension Act ? extended term of copyright
      • Destroyed the balance – limited term meant after the creator has had a time from which to benefit financially from his creation, it goes into the public domain
    • Digital Millennium Copyright Act ? designed for the entertainment industry to prevent circumvention of the digital locks
      • Opens possibilities for copyright owners to get rid of anything they think is violating their copyright without any court adjudication
  • “Cease and desist” letters
    • Technically provide an alternative to litigation, but procedure can be abused – often copyright claim is weak or nonexistent, or there is a strong fair use defense
      • But letters are very threatening so often scare artists into taking down their work
  • Picasso and the American Artists show @ Whitney ? exhibit A for fair use
    • Shows the ways that various American artists worked from Picasso images, using and manipulating them in their own work
    • Not only do later artists borrow / copy, they often use images to create different styles / messages


Joy Garnett – painter, photographer

  • History of art is the history of appropriation, sampling, derivative use, etc
    • Creative works are always built upon each other, engage in a discourse with other works
            • Not stealing it, but using it


War project “Riot”

  • Looked for lost or unknown images that demonstrated social unrest
    • De-contextualized by removing context from the picture
    • Also by painting them, further de-contextualized them – removed them from a media stream that is fast, replete to images
      • Transformative use argument ? the actual making of the work and the experiencing of the work by the viewer is very different from that of the source image
  • Chose one fragment of a photograph – turned it into a painting called “Molotov”
    • Turned out to be from a very famous Susan Meiselas photograph of the Nicaraguan revolution
      • Meiselas contextualizes images in books surrounded by essays and other images
      • She is a photojournalist who also contextualizes her work as art
  • “Riot” show was in 2004 – used Molotov image on the advertising postcard
    • Got “cease and desist” letter from Meiselas’ lawyer, asking her to take off of her website
    • Included a derivative rights form (used to create an adaptation of an original) – would have given Meiselas the rights to Garnett’s painting
      • Didn’t sign form, but did take image off her website
  • Real story is what happened after that ? other artists used Garnett’s painting in various ways to comment on the copyright / fair use issue and copying in general


Garnett’s argument ? photographer owns the copyright to her photo – but the content of that photo is a historical event, not created by the photographer

  • As the author of the photo, do you then have permission to control how people deal with, critique, and experience that content?
  • Also photojournalists don’t ask permission from their subjects
    • Whose struggle is this?

Meiselas’ argument: there is a need to preserve context – moral rights argument

  • She returned to Nicaragua and her iconic man was everywhere – but was also being misappropriated by the gov, and eventually erased from the walls / erased from history
    • But images don’t have an intrinsic meaning to them – there is no one meaning
    • When photojournalists release their images into the news, they lose control over how those images will be used and misused

Garnett says there is no way to preserve a context without creating a fascist system where only certain people could decide who gets to critique, comment, crop and for what purpose


If Meiselas had sued Garnett, who would have won?

  • (1) Purpose and character of the use
  • (2) Nature of the copyrighted work
  • (3) Amount and substantiality of the portion used in relation to the work as a whole
  • (4) Effect of use upon potential market for or value of the copyrighted work

Marjorie Heins says she has no idea who would have won – it’s so subjective, depends on the panel you get


Two problems

  1. Tradition of artists borrowing from, looking at, taking inspiration from, and alluding to one another is an essential part of the history of art
  2. Postmodern and the critique of originality
    1. Richard Prince – photographed Gary Gross original photo (promotional photo of pre-teen Brooke Shields)
      1. Titled it “Spiritual America” – allusion to a photo of a gelded horse, and exhibited in a fake gallery
      2. Critique of originality – and a hard case for fair use
    2. Sherri Levine – photographed Walker Evans photos, re-titled “After Walker Evans”
      1. Mandelbaum did a series called “After Walker Evans and Sherri Levine” – re-photographed Levine’s photos of Evans’ work
        1. Allows viewers to print online and download certificate of authenticity, so they can all have a genuine Mandelbaum print


If Walker Evans’ estate had sued Levine

  • How could she argue that the work is transformative?
    • To the extent it is a publicly known, expressive work, she makes even more clear that the Evans work is the object of her own work
  • Is there artistic value in Levine’s copying of the work?
    • Seems like anyone could do re-photography, but maybe the very act of choosing to take the photo can be viewed as art
      • Also in some sense there is artistic value when a work is done by a recognized “artist”
    • Also Evans’ work was commissioned by the gov – this is a very different concept / context
  • Postmodernism not about the work itself, but the idea ? defense of the piece b/c of the questions it provokes, not its aesthetic value


Question isn’t simply whether or not this is 1st Amendment speech – you have to actually work through the factors

  • Otherwise would tip the balance too much in favor of fair use
  • As valuable as we might think this work is, is it the kind of work that copyright law recognizes?
    • Transformation in a lot of post-modern art seems to be a conceptual one – which isn’t the kind of transformation that copyright law can grapple with
            • Copyright law still rooted in the desire for some physical change, visible alteration
  • At the end of the day, what we really want to protect (in terms of both Koons and Levine) is more in the realm of ideas / concepts
    • Adler says there is probably no way that Levine could win a fair use lawsuit if sued by the Evans estate under a valid copyright
    • But there is the problem of contemporary art and copyright ? as art has moved away from the aesthetic and into the conceptual realm, the kinds of changes that artists are making as they probe notions of originality / reproduction (philosophical questions) aren’t going to be protected by copyright law with its emphasis on the physical world




Right of publicity seeks to police the boundary b/w art and commerce

  • Right to control commercial use of your identity
    • “Economic right to prevent others from misappropriating the economic value generated by a celebrity’s fame”
  • Tension w/ 1st Amend
    • To the extent we are concerned w/ 1st Amend speech, what is the status of art within 1st Amend?
      • Bery informs the court’s thinking in terms of the right of publicity
  • Status of art as speech is recurring inquiry
    • How do we define art? What is the line b/w art and everything else?
    • Right of publicity ? strong insistence on the difference b/w a big dept store and an individual artist, even if the work looks very similar
      • But often a merger b/w art and commerce – how do we make sense of that?
        • i.e. Simon Doonan piece – window design for a dept store
        • Doonan says he has watched art become more and more like display


Questions to keep in mind

  • Is the right of publicity important or necessary as a matter of policy (as incentives to celebrities)?
  • Is it good policy in terms of rich free speech?
    • Celebrities need the public for their fame, but on the other hand there is a public need in depicting celebrities who are increasingly dominant in our landscape
  • How do various tests resolve these questions?


Comedy III Productions, Inc. v. Saderup (2001) [Three Stooges case]

  • T-shirt designer who used drawing of Three Stooges asserted 1st Amend as a defense
  • Court looks at fair use test
    • Says test is bad and hard to follow – only uses 1st factor and asks if work is transformative
      • Phrases question in two different ways ?
        • (1) Is the celebrity likeness one of the raw materials from which an original work is synthesized, or it is the essence of the work?
        • (2) Is it transformed so that it is primarily the artist’s own expression, rather than a celebrity’s likeness?
      • Subsidiary inquiry ? is the marketability and economic value of the challenged work derived primarily from the fame of the celebrity depicted or from the creativity, skill, and reputation of the artist?
        • Cites Warhol a someone whose work would meet standard in favor of the artist
    • What damned Saderup?
      • Not a well-known artist – so court could write off as a mere t-shirt designer
        • Court will protect artists whose work appears in galleries, are widely known, etc
          • “How good is the work” is often a proxy for the artist’s reputation
        • Also art vs. commerce distinction – Saderup used his art to sell t-shirts, vs. an artist who puts their work in a gallery
      • Image was very realistic
        • Court essentially says he isn’t skilled—though doing such a realistic work is clearly a skill, but not the kind of skill the court is concerned about
          • Preference for critique vs. homage, abstraction vs. realism
      • Seems like maybe test is designed to protect Warhol and very few others
  • Is the court striking the right balance b/w protecting Three Stooges and the artist’s right to create?


Standard right of publicity arguments

  • Stealing something that belongs to the celebrity b/c his hard work made his image valuable
    • But many celebrities haven’t done anything to get there, i.e. Paris Hilton
  • And taking away one of the incentives to work hard if you don’t allow people to take advantage of the fruits of their fame by economically exploiting their own likeness
    • But the Three Stooges didn’t become famous b/c they wanted to make money off of t-shirts
      • Though in a celebrity culture, could say all you have is your image
      • And protects those who don’t want to market their image at all
  • Also risk appearing like celebrity endorsed the item – crosses into false advertising


Argument against right of publicity, argument for artist’s use of celebrities’ images

  • Not about the individual anymore – about what they symbolize to the public
    • Could argue that celebrities belong to us all – a cultural icon like George Washington or Jesus
      • Public interest in moral rights law was a shared vocab / shared culture – celebrities are now our shared culture
    • Also a strong public interest in representing them in different ways
  • ETW Corp (2003) [Tiger Woods case] – “celebrities have become a valuable means of expression in our culture…they are an important element of the shared communicative resources of our cultural domain”
    • Don’t go into Saderup’s transformative test – basically just ask is it art / is it expressive
  • Distinction b/w letting Saderup make his t-shirts and letting someone rip off a Starbucks logo? – we have to make one if we are anti-right of publicity
    • Maybe trademark laws are a better place to root these rights


Hoepker v. Kruger (2002)

NY right to privacy – said to be the root of right of publicity

  • Question is whether the uses of picture were for “advertising purposes or for purposes of trade”
    • Image of woman that was originally in a photo used by Krueger in her art @ Whitney show
    • To make out a cause of action ? must have used picture/voice without consent for advertising purposes or purposes of trade
  • Sole question in this case ? were these images used for advertising purposes or for purposes of trade?
    • Assumption that free speech “clearly transforms privacy rights when the speech concerns newsworthy events or matters of public interest”
    • Question then becomes: what about art?
      • In this case and in Tiger Woods case (right of publicity), there is a long discussion of the role of art in the 1st Amend
      • Court says that NY courts have taken the position that art is speech (cites Bery)
        • Given that, this is not advertising and trade – this is art and it is protected
  • Blurring of art and commerce again – attempt to separate art from trade seems troubling in light of art’s consistent rejection / attack on the distinction between art and trade
    • Krueger’s own work references this – her work intentionally blurs the two
  • “Ancillary use” exception – protects ads in connection with a use protected by the 1st Amend
    • Billboards that went up on the sides of buildings advertising the Whitney show are a protected use, b/c they are advertisements connected with an art show / free speech
    • Court goes further – not only are billboards protected speech, so are the magnets, mugs, shirts, etc using this image that are on sale in the Whitney gift shop
      • What is the distinction b/w a t-shirt in the Whitney and Saderup’s shirt? Why are the gift shop t-shirts art, worthy of this protection?
        • Court says one work is transformative and the other is not
        • But question here is merely: is it art? Doesn’t matter to court whether it is transformative art or not
          • Distinction is that the thing on the product is art – said in Saderup’s case it wasn’t
          • But isn’t this elitism at work again b/c Kruger is more famous?
      • Adler: the “trinkets” question is really interesting, really hard


Art and culture – high and low distinctions

  • In 1960s, artist began to take advantage of the commercial culture – appearing in fashion magazines, etc
    • Shift from tortured abstract expressionist (i.e. Pollack) to the artist as a businessman
  • What happened to art is the story of consumer culture in America





  • Looted art – dark underbelly of the art world
    • Particularly relating to WWII looting
  • Antiquities and cultural property – debate between cosmopolitanism vs. nationalism
    • Do antiquities from ancient civilizations belong to us all, or do they belong to the country in which they originated / are found?
      • Issues involving criminal law, international treaties, general policy questions – who owns art, who is art for?
  • Disputes over authenticity – forgeries, other places where authenticity might be questions
    • How should the law handle these types of questions?  How should we sort out these disputes?
    • Why do we care so much about authenticity?


ART CRIME[see handout]


Cultural property and Holocaust reparations

  • Raise different policy questions – but are a common general plague (stolen art) on the art market
    • Questions of who owns art
    • Questions of title
  • Recurrence of emotional appeal of the physical object
    • Magical view of artwork – owning art from a country is like owning a piece of it in some way
    • Powerful visceral feelings of cultural property are consistent w/ the feelings that show up in censorship and debates about authenticity
      • These feelings are now intruding on the art market in a way that is extraordinarily disruptive, but also fascinating – bringing museums to their knees


Cultural property and repatriation

  • Looting of Iraq
    • Bogdanos talk – Thieves of Baghdad
      • Stressed that the message was the art, not the speaker
      • Interesting b/c his message was very explicitly delineated so there was really only one way to absorb it – kind of like wall text in a museum
        • He used photos “to tell the story” – but also added captions to each photo sharing data, personal information, anecdotes, etc
    • Taliban Destruction of the Buddhas
      • Taliban militia supreme leader ordered destruction of all statues in Afghanistan, including ancient pre-Islamic figures
        • The leader of the Taliban Islamic militia in Afghanistan shrugged off international condemnation of his order to destroy ancient Buddhist statues, saying “all we are breaking are stones.”
        • Referenced iconoclastic notion that only God should be worshipped – not statues or artwork
      • Buddhism scholar stated “[e]ven though the statues are in Afghanistan, they are really world heritage sites now. I strongly doubt the Taliban’s understandings of cultural heritage.”; Thailand foreign ministry spokesman called it a “loss to humanity”
        • Question of cosmopolitanism vs. nationalism
        • Thai foreign ministry spokesman also said “it is their loss” in reference to what Afghanistan will lose once the statues are destroyed
          • Is this loss separate than what is lost to the world?  More acute?
      • And Buddhist association secretary said “We have an important responsibility to leave these statues to our descendants”
        • Brings up questions – what is the value of art, and why is art special
          • Obscenity exception, moral rights law, copyright law, etc
  • Elgin Marbles case ? paradigm case for the policy questions that surround question of who owns art
    • Merriman claims Elgin removed the Marbles in a way that was not illegal at the time, and not necessarily immoral either
      • May have preserved the Marbles from destruction, deterioration, etc
    • Merriman takes the cultural nationalism argument of Greece and dismisses it as emotional
      • Greece says regardless of how/when the Marbles were taken, they belong to Greece
      • Merriman says if Greece is really concerned about access to the cultural object, they could have reproductions of it, and British Museum isn’t hiding the objects but displaying them for all to see
        • Says their argument instead must be about the “magic” of the objects
      • But many people don’t dismiss this view
    • Merriman gives many arguments in favor of the internationalist view
      • Conservation favors London
      • Only argument for Greece would be that Marbles could be put in their original context
        • But says this isn’t likely to happen anyway—would be in a museum instead
  • Cosmopolitanism vs. nationalism
    • Questions of who owns art ?
      • Maybe want to allow the spoils of a conquest to remain with the conqueror
        • But then also could be seen as endorsing colonialism, forever punishing the nation who was conquered
      • Argument that the Marbles have passed into Western culture
        • Variation of argument that cultural property is a modern political construct – what is the substantial relationship between a modern nation state and the history of antiquities that happened to exist inside its borders?
          • Maybe entrusting them to the most current modern nation state isn’t the best idea
      • Internationalists also argue for access – put in a place where more will have access to it
      • Nationalist response says should put it back where it originated
        • Merriman on Elgin Marbles ? they could “easily be made accessible to the Greeks through reproductions as through originals.  There must be some cultural magic inherent in the authentic object…that speaks only to the Greeks or the argument fails.”
    • What are we trying to achieve with these laws?
      • What is the status quo we desire? Do we want antiquities to all be sorted out and returned to their original locations? Which model will save more antiquities?
    • Depends on how we define the identity of art and the identity of a country
      • Identity defined in terms of part or present?

Howard Spiegler – Herrick, Feinstein International Art Law lawyer

WWII and Holocaust reparations

  • Fundamental rule in all US jds ? no one can obtain good title to stolen property
    • Owner of stolen property always has right to reclaim property from anyone unless barred by statute of limitations, laches, or other related doctrine
      • Even a good faith purchaser of stolen art can’t get good title
      • Conflict of laws disputes – certain civil law countries do allow good faith purchasers to acquire good title, even if art is stolen
  • Statute of limitations starts to run at time that plaintiff knew / should have known where property was located (discovery rule)
    • CA exception ? statute of limitations starts to run at time that claimant discovers where the property is (actual discovery rule)
      • Also extends statute of limitations for Nazi looted art cases to 2010
    • NY exception ? statute starts at time that claimant demands, and good faith purchaser refuses, to return property (demand and refusal rule)
      • In Deewerth – court said owner of lost property has a duty of reasonable diligence to locate it – can’t just sit around and wait
      • But in Guggenheim v. Lubbell (1991) – due diligence rule replaced by laches analysis
    • So now demand and discovery rule applies, w/ laches as a possible defense
      • Shifted inquiry about reasonableness and diligence of the claimant – doesn’t effect running of the statute of limitations, but comes up as an equitable defense
  • Lachesis an equitable defense
    • Have to show that plaintiff wasn’t diligent in raising his claim (there was an unreasonable delay), and that the delay has brought prejudice against def
    • Court is supposed to balance equities b/w original owner and possessor – what is fair?


Holocaust looted art

  • Staggering volume of art looted from museums and private homes ? greatest displacement of art in human history (1/5 of all Western art then in existence, then worth ~$2.5 million)
    • Was done by Nazi policy – Nazi Art Confiscation Program
    • Two kinds of art for the Nazis ?
      • Modern expressionist / impressionist non-representational art – “degenerate” art
      • Representational art – what the Germans liked
    • Outside of Germany, US policy was to return found artwork to the gov of origin
      • Assumed that those govs would return the work to the families
      • But this often didn’t happen, and the paintings then graced the walls of official buildings and embassies
  • On-going process that will continue for some time – much of the looted art has yet to be recovered


What can we conclude about art, given the Nazi’s intense fascination with it?

  • Hitler’s campaign to denounce some kind of art – can think of him as a critic, had very strong standards about what kind of art was bad
    • “Degenerate Art Show”
      • Hung Dada works sideways
      • Added graffiti around the pieces denouncing them – juxtaposition of art and wall text making fun of it, to criticize “non-traditional art”
    • In one gallery space was the Degenerate Art Show, and across a column of armed soldiers was a legitimate art show, the kind of art that Hitler liked
      • The Degenerate Art Show got much higher attendance
      • So there is a way in which censorship / attempts to denounce art may inevitably backfire
  • On the other hand, his intense love of art is interesting – when Paris fell, the first thing he did was a whirlwind tour of the Louvre
    • Hitler’s desire to get rid of non-German art in order to establish an aesthetic
      • See “The Lost Museum” article
      • Relates to Greece’s argument in the Elgin Marbles – want the art of a particular country in that country
        • Should we think of Greece’s claim differently in light of this connection?
  • Hitler’s brilliant aesthetic plan ? staging Nazism as a magnificent artistic display
    • Nazi quest to own art and destroy art that didn’t advance their cause
    • See also Leni Riefenstahl’s “Triumph of the Will” – Nazi propaganda film
      • Brilliant aesthetic brought to Nazism
    • Adler: thinks of this use of art when she hears arguments about art as a moralizing, uplifting force of good in the world
  • Iconoclasm, culture wars ? clever political actors know how useful art is to make a strong case – also relates to art as speech
    • At the end of the day, art is very powerful and very expressive
    • Hitler’s use of it attests to the power of art

US v. Portrait of Wally(2002) – ongoing case

  • Involved Egon Schiele portrait
    • Lea Bondi Jaray (Jewish art dealer) forced to sell her art gallery to Nazi art dealer Welz
    • But this portrait was in Bondi’s private collection – wasn’t part of the gallery
      • Before Bondi fled to England, Welz saw the painting in Bondi’s apartment and insisted that she give it to him
    • Rieger (another Viennese art collector) forced to sell his art collection to Welz also
  • Welz forced to turn over his collection – all works stolen from Bondi and Kallir
    • US policy required that collection to be turned over to Austrian gov
    • Portrait of Wally mistakenly mixed in with the Rieger works – Austrian gov didn’t investigate
      • Rieger heirs later sold entire collection to gov-owned Galerie Belvedere – Wally was still mixed in with the Rieger works, Belvedere took it although it knew work wasn’t part of the Rieger collection
  • Bondi learned that her work was hanging in the Belvedere (from Rudolph Leopold)
    • Bondi asked Leopold to get it back for her – but Leopold exchanged a Schiele in his own collection for the Wally, which he kept
      • Bondi tried to get Leopold to return the work to her, but he refused
      • She never brought litigation – felt an Austrian legal proceeding would be futile
  • In 1994, Leopold’s art collection became part of Leopold Museum in Vienna (adversary in this litigation)
    • Leopold Museum put together Schiele exhibit, toured the world and visited the MoMA
      • Provenance in catalog included Rieger b/w Bondi and the Belvedere
        • Spiegler contends that this is evidence that Leopold new the title had passed unlawfully – that he didn’t have good title and was trying to cover it up
    • Bondi heirs demanded that MoMA hold Wally until the litigation was resolved
      • MoMA refused – claimed a contractual obligation to return paintings to Leopold Museum
      • NY statute provides that, when out of state lenders loan art to nonprofit institution, if anyone has a claim to the work, they can’t get a judge to seize the work
        • Purpose of this law is that a creditor of an artist shouldn’t be able to disrupt an exhibition by seizing a work, and interfering with the exhibition
      • So heirs couldn’t attach the work
    • Heirs contact NY DA to ascertain whether stolen property was within the territory of NY
      • Subpoenaed painting; MoMA made motion to quash subpoena
        • DA said statute didn’t apply because this was a criminal action
      • NY Court said above statute applies even in criminal cases – DA can’t seize the artwork, it must be returned to Austria
  • US customs seized Wally ? forfeiture action in which US gov is the plaintiff, and portrait itself is the def
    • Herrick, Feinstein is a claimant
    • Leopold Museum is a claimant
    • MoMA is a claimant – saying give it back to them, so they can return it to the Leopold Museum


Challenge and seizure of Portrait of Wally captured the attention of the art world and helped to focus anew on the Holocaust / Nazi looted art program

  • Led to a re-examination by a number of European countries of their post-war policies that failed to result in the restitution of Nazi looted art to their true owners
    • Portrait of Wally and the events surrounding it was a major force in this
  • Austrian journalist decided to search into Austrian archives and uncovered enormous shameful history revolving around Austria’s failure to give back Nazi looted art to original owners
    • Discovered what happened to Klimt works (case below)


Other cases

  • Republic of Austria v. Altmann (2004)
    • Involves Foreign Sovereign Immunities Act (FSIA)
            • “The King can do no wrong” translated into ? foreign govs are immune from suit
            • State dept developed “restrictive view of sovereign immunity ? re: commercial acts, when a foreign nation acts like a private party, sovereign immunity is not recognized
        • So state dept makes decision about whether case should proceed – courts didn’t want to mess with making these determinations b/c might be interfering w/ US foreign relations powers
        • And state dept decisions were likely colored b/c they may not want to support a lawsuit against a particular country that they were working w/ elsewhere
      • FSIA passed to address these issues ? tries to specifically indicate when a foreign nation is immune from suit and when there are exceptions to that immunity
        • Codified earlier practice, minus the state dept
        • Also added another provision ? foreign nations not immune in a case in which rights and property taken in violation of international law are an issue – property must be currently in US at time of suit or owned and operated by agency / instrumentality of the foreign state that is engaged in commercial activity in the US
          • Linchpin of claims against foreign govs for claims re: looted property now in possession of those govs
          • Common because US returned Nazi looted artwork to foreign govs
    • Altmann escaped from Austria during Holocaust
            • Niece of Adele Bloch-Bauer’s husband (subject of Klimt paintings)
            • In her will, Adele asked her husband to bequeath the Klimt paintings to Austrian National Gallery upon his death (including the famous Bloch-Bauer I)
        • During WWII, her husband fled Austria – artwork was seized by Nazis
        • After WWII, Bloch-Bauers made a restitution claim to get the Klimts back
          • Austrian National Gallery said they couldn’t get the work back b/c Adele had bequeathed them to the Gallery (untrue)
            • 1st generation often more concerned with rebuilding a life than searching for looted property, 2nd generation didn’t want to talk about the war, not until later generations that family starts looking into what happened to their artwork
    • Altmann’s primary heir finds out about all of this – gets lawyers to look into it
            • Brought claim under new Austrian Restitution laws ? Austrian board ruled that she had no claim to the work, it was essentially bequeathed to the Austrian National Gallery
              • Tried to appeal, but couldn’t afford the filing fees (based on the value of the painting claimed, so would cost millions)
            • Lawyers discovered FSIA – brought suit against Republic of Austria / Austrian National Gallery in CA court
    • Could FSIA be retroactively applied to expropriations by foreign govs prior to its effective date?
            • US gov filed amicus brief in favor of Austria
        • When suing a foreign gov, all bets are off as to where US interests will lie
        • Here state dept interested in promoting good relations between Austria and the US – foreign relations policy was a factor
          • Also didn’t think the law should apply retroactively
            • Case went to SC ?
        • Austria / US gov said not fair to make it retroactive – should look at whether it is unfair to def to be subject to law that wasn’t in existence when it committed the alleged wrongful act
          • Said when the Nazis were seizing artwork, they didn’t expect to be sued in the US (so can’t apply retroactively)
        • Breyer said this concern wouldn’t have been on the minds of the Nazis when they chose to seize the artwork ? Republic of Austria lost
    • This has opened the door to lawsuits against foreign govs to recover artwork and other property taken before the FSIA was enacted
            • The kind of activity used to get jd over Austria was very minimal here – didn’t have to be connected to the claim, just showed some commercial activity in the US
  • Malewicz v. City of Amsterdam(2005)
    • Kazimir Malewicz painted work in Soviet Union in the 1920s – Stalin didn’t approve
            • Brought work to Berlin in late 20s because Germany at that time was encouraging creativity in the arts
            • Called back to Russia – but was afraid to return w/ his works, so he left them in Germany
        • But when war broke out, these works were in jeopardy b/c non-representational
        • Friend fled Germany and asked MoMA to hold the works
    • Much later, lawyers asked MoMA to return the works to heirs
            • MoMA said no, but court forced their return
            • Sold at auction for $17 million
    • Another group of Malewicz’s work went to a museum at Harvard
            • This was quickly resolved – Harvard returned them to the heirs
        • Heirs returned one to Harvard in thanks


Immunity from Seizure Law

  • NY state law (see above)
  • Fed law permits museum to apply to state dept for certifications that immunize from judicial seizure any works that are loaned from abroad to US museums
    • MoMA hadn’t done this in Portrait of Wally
  • Came up re: some Malewicz works
    • Plaintiffs sued under FSIA – said had nothing to do with immunity
    • Museum responded that they had immunity (had gotten fed permit)
            • US gov filed statement of interest
            • Amsterdam also on other side (Amsterdam museum had loaned to US museum)
    • Court agreed w/ plaintiffs ? said they are two different laws, so you are allowed to sue under FSIA even when museum has immunity from judicial seizure


NY Times article “Rocked to our foundations” ?

The wanton destruction of culturally important buildings is now a war crime

  • Architecture is targeted b/c it is collectively symbolic, even if this symbolism is arbitrary
  • Just as architecture legitimizes claims over space, its removal disenfranchises, defamiliarizes
    • Architectural destruction is like a drug – it is an instant proof of change, of authority
    • It is as if in the pursuit of blood and soil, we have to burrow deep to the earth’s core to fulfill a literally fundamentalist belief in the genius loci


Questions to keep in mind

  • What do we mean when we say something is authentic?
    • Whose standards should we use? Should legal standards defer to artistic ones?
    • Resembles questions about what is art, who determines it, is law the right realm to answer these questions?
  • Why do we care if something is authentic or not?
    • What is the value? Why is authenticity such a profound value in the art market?
      • Seems like another realm in which the law is poorly equipped to grapple with these issues
    • If authenticity is something that fluctuates over time (i.e. Rembrandt attributions), or if something is so convincing that it fools even experts, why does everything rise and fall on authenticity?
      • Philosophical question – even more pressing in our age of reproducibility
        • Walter Benjamin’s notion of “aura” surrounding the original, authentic work
        • Art market behaves as if there is such an aura around the object
      • Also bound up in cultural questions – what do we do in a culture of reproduction?
    • Romantic conception of art is the prevailing conception of art (think about Pollack bent over the canvas, brilliantly hurling paint by transmitting a piece of himself)
      • Underlies our notion of authenticity in the art market
        • A fake work lacks the hand of the artist, the presence of the genius
      • Also relevant in moral rights law and IP law
    • But it wasn’t always the case that the artist was considered a tortured genius who had a confrontation w/ the canvas and created something special and unique
      • Rembrandt was a genius, but the way he worked wasn’t dominated by a traditional concept of “genius”
        • Worked with a school of people beneath him, sharing brush strokes
      • Our struggle to determine which works were his and which weren’t reveals our desire for a strict construction of authorship

Three methods of authenticating a work of art

  1. Connoisseurship
    1. People who are familiar with the artist’s work looking long and hard at the piece
    2. Rembrandt example
      1. Began with connoisseurship, then turned to science to uncover what was wrong w/ work
      2. Often connoisseurship not used in isolation
    3. This is still the most valued method – but does raise questions of subjectivity
  2. Provenance
    1. Tracing the work from the hand of the artist to whoever now possesses it, and looking for lapses / who owned it in between as a way to tell whether it is authentic
    2. Looting example
      1. Look at gaps in provenance – were there galleries involved who dealt with a lot of looted work after the war?
  3. Scientific Evidence
    1. Tries to determine the time the work was produced
      1. DNA profiling of organic materials, whether paints / canvas / frame were available at the time the artist was working
    2. But not suited to determining style – can’t really tell you whether it was the artist’s hand that actually produced the work or someone else’s
    3. Pollack example
      1. Looking for fractals / patterns in authentic Pollacks to determine whether newly discovered pieces were made by the same hand
      2. When looking at brush stroke, e.g., science mergers with connoisseurship

Rarely do you have all three methods lining up

Where does authenticity arise in disputes?

  • Assembling a catalog of the artist’s entire body of work
    • A lot of money rides on whether or not a piece is included, thus held out as authentic
  • Curators doing an exhibition
  • Expert boards
    • i.e. Warhol board – people have been trying to sue the board for a long time based on its authenticity determinations, but they have an airtight contract that means if you want to get your work evaluated by them, you have to sign away your rights to sue
  • Appraisal for state/income tax
  • Donations and sales
  • Unsolicited public comments

Very few of these incidents reach courts – often handled at the contract stage (i.e. Warhol board)

Types of legal claims that do arise from these various scenarios

  • Expert failed to exercise reasonable care
  • Product disparagement
    • Kirby v. Wildenstein – claim there was a whispering campaign about the painting
    • Experts are generally scholars and curators, not dealers
      • Heavy use of contracts around this – opinions can be dangerous to give, can give rise to lawsuits b/c experts can be sued for libel based on the underlying truth or falsity of the facts on which they base their opinions
  • Breach of contract
  • Common law fraud and negligent misrepresentation
    • Usually arises when contract claim no longer valid b/c statue of limitations has run out
      • Harder to make than contract claim – not a claim you want to be making
    • Struna v. Wolf – NY requires special fiduciary relationship b/w buyer and seller for claim of negligent misrepresentation to be valid
  • False advertising / consumer fraud
  • Defamation
  • Latham Act
  • Sherman Act (antitrust)
    • i.e. Pollack foundation – catalog had a section labeled “false attributions,” and an owner of one of the paintings listed there sued
      • Claimed the foundation violated the antitrust act b/c they had an interest in keeping the number of Pollacks low
      • Response was that the price of art doesn’t plunge just b/c the volume is low
  • Criminal prosecutions
    • Sometimes arise against people who make and sell forgeries – though only a small minority of fakes are done with the intent to deceive

Greenberg Gallery, Inc. v. Bauman (1993)

  • Court held that the Calder sculpture here was not a forgery
    • Relies on impeccable provenance, authentic signature
  • Perls (art market guy) claimed that this had to be a forgery – was an exact copy
    • He doesn’t say it was damaged or hung wrong – say this is a fake, and Adler agrees w/ him
    • Art market has already listened to Perls – sculpture no longer worked anything and excluded from Calder Catalogue Raisonne
      • But court says “this is a court, not the art market”
      • Seems offended that he spent so little time analyzing the piece
  • Has the court made the wrong policy decision in ignoring the real world impact of the two experts?
    • Maybe they should just ask who is respected more, and follow his advice
      • Issue of how much should courts defer to the realities of the art market?
  • Perhaps court is trying to incentivize people to turn to boards, who are insulated from courts

Why does Perls’ word make a difference to the art market?

  • Want the original b/c of the romantic notion that the artist is in the art
    • By owning it you enter into a dialogue w/ the artist
      • Treat an original as a work of inspired genius, and a great forgery as merely a work of technical skill
    • Value not only the genius of the artist, but also the history that comes along w/ the piece
  • Also status and investment qualities of the original don’t exist for a fake


Authenticity in context of Rembrandt vs. Warhol – both worked in ways that frustrate our notions of originality

  • Rembrandt ? concept of authenticity as something that fluctuates
    • Works fluctuate between being attributed to Rembrandt / School of Rembrandt
    • Why are we so hung up on whose brush strokes made a particular piece?
      • If it’s so beautiful that we thought it should be attributed to him, why does it matter if he painted it or merely supervised?
  • Warhol – his entire work was a contestation on the notion of authenticity
    • Factory methods, assembly-line, mass-production of work
    • Often wrote “This is not by me. Andy Warhol.” on the back of paintings
      • So what is the market looking for in determining a “real Warhol”?
        • Owning the object, when the object is just a proxy for conceptual art, is still important to people – still want to own something done by someone close to the artist, something where he was involved in the process
    • Warhol particularly interesting because the board is being strict in their interpretation of what constitutes an authentic Warhol, at the same time as his work rejects such a notion entirely
  • Progression ? Duchamp’s found objects, Warhol’s playing on the notion of authorship and authenticity, photography opening up questions of authenticity as well (“authenticity is impossible in a medium like photography”)
    • Conflict b/w a romantic conception of art and more of a post-modern one
      • Cave drawing example – saw exact replica of the original in a museum
        • Adler says her post-modern self kept thinking “no difference,” but her romantic self kept thinking there was something different about the original
      • But then feels nothing when she sees the Mona Lisa
    • Different concepts of authorship – intellectual debates, but we all have a gut feeling about which notion of authorship is right


Photography as a medium poisoned the notions of originality and authenticity b/c is about reproductions

  • Keita issue – people said it was inauthentic to print the negatives in a way that the artist wouldn’t have
    • But printer always makes determinations about what the photo will look like if the artist doesn’t do the printing herself
  • Photography—to the extent that it is art—is art without an “aura”
    • In an age of mechanical reproduction, the aura is damaged / being lost by the knowledge and act of reproduction
      • Exposes the difficulty of possessing an aura of anything
  • Then comes Warhol – exposes how photography has undermined quest for the authentic original
    • Shows how concepts of authenticity and authorship are transitory ? the point of his work was to say that the difference b/w art and everything else is gone, art is now just like commerce, mass production, consumer culture, etc
      • Koons and other artists follow in this tradition – why would you want an original Koons? He doesn’t even touch the art himself
    • Warhol board policing the boundary b/w authentic and not-authentic seems preposterous
      • Says what makes an authentic Warhol is whatever Warhol intended to be art
      • Adler: this is a roundabout way of asking the question – Warhol didn’t see any distinction b/w “art” and “other”
  • In the end, we value the original b/c we believe it contains something
    • Merriman looted art article: talks about the “magic” in the original
      • Only reason any country would demand their original cultural property back is if they treat the works as being “magical”
      • Resembles Benjamin’s use of the “aura” concept


Problems with authenticity

  • Authenticity changes all the time, making it even harder to pin down
    • One month a Rembrandt is authentic, next month it isn’t
    • Warhol board sometimes changes its mind about authenticity determinations
  • In many cases, seems unanswerable – connoisseurship, provenance and science can conflict w/ each other
    • Sometimes art world will designate someone to make the final judgment, i.e. Klaus Perls (Calder)
      • But court chose to ignore this
      • So adding law on top of all these layers is even more problematic
        • Legal world not operating under the same set of rules as the art world
          • And often art world devises a way to keep the law out, b/c they know the courts won’t play by their rules (i.e. Warhol board)
          • If the art world is based on magic, why not let a magical, un-reviewable board decide these issues anyway?
        • And have a problem of courts trying to make sense of a market that in some ways seems irrational
          • Valuation of authenticity is irrational to begin with
          • Who determines the truth also seems somewhat irrational
  • Difficulties arise when art starts being valued for something other than its beauty alone
    • i.e. Warhol works – there is a mystery as to why we place a high value on his art
      • Maybe b/c we still feel Warhol was the genius behind it
      • Or maybe it is just based on thin air


Arnold Herstand v. Gertrude Stein, Inc. (1995)

  • Issue of authenticity of Baldus drawing
    • Drawing had excellent provenance, Baldus’ ex-wife gave it to Stein who had it continually
    • Also had a certificate of authenticity signed by her (she often authenticated Baldus’ works)
    • But Baldus himself said it was a fake
      • Provides three affidavits (court calls them heresay)
      • Art market will now treat forever as a fake – when a living artist denounces his work, it becomes valueless and un-saleable
  • Court says there is a genuine issue of fact about whether the drawing is real or fake
    • Cites impeccable provenance
    • Points out situations in which other artists have denounced work that was clearly theirs
    • Brings up idea that Baldus was trying to punish his ex-wife
  • Another example of a misfit b/w the legal resolution and the art world one
    • Also exposes how much artist’s intention matters (or doesn’t)
      • In Europe, moral rights would say that artist has the last word regarding attribution – he can always denounce the work
    • Shows how thin the notion of attribution can be, like the notion of authencitiy


Warranties and Seller Liability ?

Jendwine v. Slade (1797)

  • Court says no way to really know authorship of a work of art
    • Attribution in a catalogue merely imparts the seller’s opinion


Express warranties in a contract for sale are rarely the last word – UCC and state law often contract around them

  • Christie’s contracts protect its rights against both buyer and seller
    • Seller doesn’t affirmatively promise authenticity, but promises that it has no reason to know the work is inauthentic
  • Also have a limited warranty of authenticity for buyers
  • And set up procedures for rescission of contract in the event of problems of authenticity
    • Comes up in auction houses section


Appraisals and Expert Liability 

Struna v. Wolf (1992)

  • Dealer met w/ curator of the Met about a sculpture
    • Curators gets Wolfs interest in buying the sculpture
    • Dealer bought sculpture and sold to Wolfs – claims that he did so b/c he thought the curator was going to accept it as a donation from them afterwards
      • But it turns out to be a fake and Wolfs demand their money back
  • Court takes seriously the claim for negligent appraisal – dealer claims he bought the sculpture based on the statements of the Met curator that it was authentic
    • Dealer loses b/c there was no evidence that the curator made statements knowing they would be acted on, or even that curator knew the dealer didn’t already own the work
    • In NY, also have to show special relationship – would have to show that curator agreed to appraise work knowing that the dealer was going to rely on it
      • Not shown here so can’t sue


Kirby v. Wildenstein (1992)

  • Wildenstein says painting is either fake or skinned (damaged in restoration)
    • Eventually says the latter b/c of impeccable provenance
  • Suit for product disparagement – plaintiff claims Wildenstein started a whispering campaign against the painting, causing it not to sell at auction
    • Whispering campaigns really do happen in the art market, and from someone influential can seriously affect the value of a work
    • Experts often contract around this to try to protect themselves when they evaluate / appraise work
  • Court rules against the plaintiff


Restoration : another way of getting at question of authenticity

  • Also came up in moral rights context – artist allowed to proceed on a claim of negligent restoration
    • Simply saying a work was changed during restoration doesn’t give rise to moral rights claim – need to make out gross negligence
  • Difficulty of dealing w/ question of authenticity – hard for restorers to determine what is authentic
    • i.e. Sistine Chapel restorers cleaned too deeply – stripped too far into ceiling
      • Some critics said they saw a different style in Michelangelo’s work underneath
      • Others said no—had just gone too far in restoring
  • Pieces can have unique reverberations of themselves
    • i.e. Eva Hess – original piece keeps changing b/c of artist’s intent in using certain materials
      • Interesting to consider in terms of notions of authenticity
    • Do we want a restorer to try to approximate the artist’s intent / how the artist envisioned the lifetime of the work?
      • Is it truer to let the work fall apart? Or should we prop it up / keep it looking like it did when it was first created?
        • Comes up particularly w/ an artist like Hess, who used delicate materials that didn’t stand the test of time
        • Restorers haven’t intervened much w/ Hess’ work


Other cases 

Balog v. Center Art Gallery-Hawaii Inc. (1990)

  • Methods of art forgery:
    • Faked signatures
    • Completing unfinished canvases
    • Misrepresentation
    • Reproduction / copying
    • Pastiche
    • Drawings
  • Methods of detection:
    • Intuition and expertise
    • Scientific tests


Boggs v. Rubin (1998)

  • Artist created art that resembled money and used to barter for goods and services
    • Court says these images weren’t intended to defraud customers – were sold as art and not money
    • But the works were seized by treasury agents as contraband

Summary: why do we care if a work is real or fake?

  • Mona Lisa: at some point, a work becomes so reproduced that the original becomes diminished
    • The value of the authentic original is reduced
      • Tests Benjamin’s theories of reproduction – is there any aura left, in the face of its constant replication?
  • Japanese Temple (from 690 AD): is ritually rebuilt every 20 years to keep the temple “authentic”
    • Process of constantly renewing it is the best way to keep it authentic – if it was left alone it would fall apart, and the original object would be lost
      • Challenge to what it means to be authentic, and what it means to restore a work
  • Getty Kuoros: assumed to be from around 540 BC, but some things about it seem anomalous for the time
    • Major controversy about whether it is real or a forgery
      • If it was a forgery, would be a great one both in terms of art and science
      • People are starting to come more around to the fake idea, but ultimately haven’t been able to decide
    • Emily True (curator): “I always considered scientific opinions more objective than aesthetic judgments.  Now I realize I was wrong.”
      • Impossibility of getting the right answer is fascinating – connoisseurs and scientists alike can’t get it right
    • Kuoros now displayed with a sign that says “Greek, circa 540 BC or modern forgery”
      • Display it along with the idea that we may never know about authenticity – Adler says this is a wonderful solution


Jo Laird – Christie’s in-house counsel


Structure of the art market

  1. First sale ? primary market
    1. Artist sells to dealer, collector, or museum
  2. If those people want to sell ? secondary market
    1. Can sell through dealers or the auction house
    2. In private sale, seller gets to control the sale and to an extent who it is sold to – in auction setting, doesn’t get to control the piece outside of selecting the auction house and setting the reserve


Auction transactions ?

Relationship with consignor

  • Christie’s sells property as an agent for consignor – doesn’t own property, sells on consignment
    • Greenwood v. Koven (1995) – authenticity issue in a consignment sale
      • Koven sold Braque by auction to Diamonstein, who raised authenticity concerns
        • Christie’s believed work was authentic but contacted Lorens (holds droit moral for Braque), who said it wasn’t authentic
      • Christie’s rescinded the sale – returned purchase price to buyer and sought return of the proceeds from seller
        • Seller refused – suit ensued
      • (1) Did Christie’s breach a duty of undivided loyalty owed to seller when it investigated buyer’s claims of lack of authenticity?
        • Court recognizes duty of undivided loyalty inherent in agency relationship—but says it can be contractually modified
        • Says the consignment agreement manifested an understanding that Christie’s was permitted to engage in the type of investigatory actions at issue here
          • CA made Christie’s obligations to seller subject to conditions of sale / limited warranty that govern its relationship w/ buyer
            • Seller should have known that Christie’s loyalty to her was subject to a conflicting loyalty to the buyer
      • (2) Did Christie’s investigatory actions and subsequent rescission breach its duty of care to seller under consignment agreement?
        • CA subject to an implied covenant of good faith and fair dealing
        • Christie’s and seller agreed to lower standard of care—that Christie’s decision to rescind sale would be made by Christie’s in its “sole judgment”
          • Here no evidence that Christie’s rescinded sale b/c they were trying to help the buyer get out of the sale – rather rescinded b/c of an honest belief that they might be subject to liability
      • Court expressly says it’s going to base its decision on the contract, not what is best for the art market – says not the court’s role to impose upon an industry its own view of how common transactions should be structured
    • Nichol v. Christie’s – authenticity issue in a consignment sale (similar to Greenwood)
      • Christie’s decided to rescind sale, plaintiffs argued breach of fiduciary duty
      • Court said relationship w/ consignor limited by consignment agreement – Christie’s had no obligation to enforce payment and had complete discretion to cancel sale
        • Agreement specifically authorized Christie’s to rescind a sale
      • Opinion specifically says that the auction house has interests – wouldn’t be right to enforce a sale where authenticity was questioned b/c of potential damage to Christie’s
  • Consignment agreement sets out obligations of seller and auction house
    • Christie’s has right to control time/place of auction, lot order, advertising
      • But client can contract for specifics, i.e. can demand a particular auctioneer
    • Also regulatory requirements meant to protect the integrity of the auction – serving the interests of the buying public and future auction houses that might sell it
      • Integrity is key—regulation is key
  • In order to be binding, consignment agreement must identify:
    • Property being sold
    • Commissions charged to seller and buyer
    • Reserve price
    • Bidding rules / regulations
      • If reserve not reached, piece doesn’t sell – there are specific words auctioneer must say
        • If property is unsold, Christie’s has rights to sell it privately within a particular period for the reserve amount or greater
      • People w/ an interest in the property other than buying it (i.e. bidding it up to get a higher price) and the owner himself cannot bid
    • Terms of payment
    • Representations / warranties / indemnification
      • Each consignment agreement required to include consignor’s representation of good title, which will pass to buyer upon sale
        • Warranty has to be explicitly for Christie’s and the buyer
      • And seller required to indemnify Christie’s and buyer if someone ever makes a claim to title of piece
  • Withdrawal of work
    • Consignor has no right to withdraw property after consigned
      • Sellers might receive preemptive offers, and if had right to withdraw sale in these instances, Christie’s would lose a lot of business
      • Also b/c Christie’s has already spent significant time and money marketing piece
    • Christie’s reserves right to withdraw property for appropriate reasons, and in these instances client must pay a withdrawal fee
      • i.e. questions of ownership / authenticity, if client has breached warranties / contract, etc
  • Christie’s also adds other requirements
    • Warranty by seller that he has no reason to believe the property is inauthentic
    • Seller of cultural property / antiquities has to warrant that any import/export of the property has been in compliance w/ the laws of the relevant jds

Relationship with buyer

  • UCC applies to auction sales and has specific provisions relating to them
  • Statute of frauds provisions apply to auctions
    • Contract deemed made when the hammer falls – no writing at this time, but would be disastrous if this wasn’t binding
    • So in NY and CA, special provisions say that as long as the auctioneer writes down who the buyer is, that is enough of a writing to get past the statute of frauds
  • So simply by bidding, buyer agrees to conditions of sale
    • Right to inspect property in advance of sale to ensure its condition, etc
      • But Christie’s makes clear that everything is sold “as is”
    • Responsibility to pay for property
    • Responsibility to abide by customs issues
      • Certain pieces can’t be imported into US – but it is the buyer’s responsibility to check that out before bidding
    • Christie’s uses telephone / absentee bids – but buyer stuck w/ any mistakes made
  • Conditions of sale held enforceable even against people who haven’t seen or read them
    • Extended in Hessel v. Christie’s – buyer had only seen property online, but website makes clear that there are conditions of sale that apply to the auction, and that by bidding you are bound
      • Court held that this was sufficient to bind buyer to those conditions
    • Nichol court upheld conditions of sale as binding against both buyer and seller
  • Limitations on warranty provided by Christie’s
    • No warranty about condition, exhibitions that piece has appeared in, etc
    • If scholarship changes regarding property’s attribution after sale, not warranted
    • If sale is rescinded, all buyer gets is the purchase price


Auction houses

  • Almost never involved in primary market
  • Entirely public transactions / negotiations (vs. primary market – deals are all confidential)
    • Provide a window into what is being sold, what prices the market is willing to bear
    • Also of interest to everyone – dealing w/ the world’s culture and heritage, so everyone has an interest in where pieces are going
  • Complicated b/c auction house has a responsibility to many parties
    • Responsibility to consignors, buyers, market in general, and shareholders
  • Also complicated b/c of its particular role in the market (at least for Christie’s, Sotheby’s)
    • Think of themselves as a cultural and artistic institution
    • Stature of major auction houses is a blessing and a curse
      • Means people aren’t likely to challenge one of their sales
      • But also means that their names may be used without their consent, and that they may be used for inappropriate or criminal actions
        • Case similar to Struna (Met museum curator) ? Christie’s looked at a photo of a painting and estimated its value; woman sold for more and then buyer turned around and sold it for much more, so woman sued Christie’s
          • Court held no special relationship, and specialist’s mere knowledge that woman may rely on his advice wasn’t sufficient
          • But many people think that b/c it’s Christie’s, does have an obligation to the woman in this instance
        • Also case about a dealer who made meticulous copies of masterpieces and sold privately, used Christie’s and Sotheby’s to sell originals
          • This worked until copy and original both came through the auction houses – original at Sotheby’s and fake at Christie’s
          • Eventually dealer went to jail, but these paintings will continue to haunt Christie’s for many years
        • Also smaller scale criminal issues arise – like when someone involved w/ client tries to bid on the property in order to defraud the client
          • Not just concerned w/ client’s interests, but w/ Christie’s reputation and integrity as an auction house that people can trust



  • Most recent sale embodies a lot of major restitution issues – involved sale of four Klimts that were restitution pieces belonging to the Bloch-Bauers
    • Had been looted by the Nazis during WWII
  • People sometimes want to put a cloud on the title without actually having a legitimate claim for restitution
    • But some people also have legitimate claims for restitution under the Holocaust statutes
  • Courts aren’t likely to be the places where these issues get settled, at least not in a good way
    • Because once you throw out legal doctrines in one context, i.e. WWII claims, then do you have to do the same for all other historical disruptions that gave rise to restitution claims?
      • Should these claims apply to individuals, or just nations / states?
      • Should individuals bear the burden for making up for injustices from WWII?
    • Should you change the rules of law for some people and not others?
  • Responsible members of the restitution community are horrified by the Lloyd Weber case, and are giving their support to auction houses
    • Have to face claims that this is all about greedy Jews and their lawyers
    • Want to make sure good faith / good will isn’t lost

So what can auction houses do?

  • Try to resolve legitimate claims, and fight claims that have no merit
    • Pay close attention to the facts
  • Not talking about undoing the Holocaust – talking about a rearrangement of wealth
    • Want this to help correct the injustices done, restore pieces to their rightful owners
    • But if this just creates a new injustice, doesn’t change anything


Art market recap - think of art market in light of the discourse about the power of images

  • The impulse to own art (individually/privately or nationally) and the impulse to ensure its authenticity is a testament to the power of art
  • Ownership disputes conjure up the topics of Icon worship / iconoclasm
    • Love of art, worship of art vs. hating art; the desire to own art vs. the desire to destroy it – often caught up together
    • i.e. Fuhrer Museum and Degenerate art
  • Authenticity disputes might also conjure up the analogy of icon worship to the extent they are based on a magical view of art (even when it may no longer make sense)
    • Merriman – why do we want an object in our own nation?  Must be about magic
      • Merriman is dismissive of this as an argument
    • Adler: maybe shouldn’t be so dismissive of this b/c this attitude is so persistent, pervasive
      • In some ways the art market itself may be based on magic