Break on Through (From the Outside) Part I


In Part I of this panel discussion on the rise of Outsider Art held at Sotheby’s Institute of Art, Andrew Edlin, CEO of the Outsider Art Fair, provides historical context, after which Edward Gómez, senior editor of Raw Vision, will present on the meaning and taxonomy of the genre. Part II will feature Scott Ogden, principal at Shrine Gallery, and Outsider Artist, Daniel Swanigan Snow.



Okay, I’m going to give you a little travelogue in sort of the Hunter S. Thompson mode. Heading down to Washington D.C. on the Acela, I can see the Manhattan skyline in the distance as the train cuts through the industrial wastelands of New Jersey’s Meadowlands. I’m finally on my way to see the much ballyhooed exhibition, “Outliers and American Vanguard Art” at the National Gallery, the most recent in a succession of periodic shows where major institutions feature the art of the self-taught, those whose visions weren’t shaped by academia or the machinery of the art world superstructure. I had read several reviews and had leafed through the thick exhibition catalogue. Naturally, I was immediately struck by the term, outliers. Which is obviously a deliberate attempt to avoid the more commonly used term outsider. The distinction couldn’t help but remind me of the hilarious Mel Brook’s film Young Frankenstein. The clip of which i hope you’ll enjoy.


Igor: Dr. Frankenstein…
Dr. Frederick Frankenstein: “Fronkensteen.”
Igor: You’re putting me on.
Dr. Frederick Frankenstein: No, it’s pronounced “Fronkensteen.”
Igor: Do you also say “Froaderick”?
Dr. Frederick Frankenstein: No… “Frederick.”
Igor: Well, why isn’t it “Froaderick Fronkensteen”?
Dr. Frederick Frankenstein: It isn’t; it’s “Frederick Fronkensteen.”
Igor: I see.
Dr. Frederick Frankenstein: You must be Igor.
[He pronounces it ee-gor]
Igor: No, it’s pronounced “eye-gor.”
Dr. Frederick Frankenstein: But they told me it was “ee-gor.”
Igor: Well, they were wrong then, weren’t they?


For the last 20 years or so I’ve been making my way through the art world as the owner of a gallery in Manhattan and more recently an art fair. Both of which specialize in outsider art. Addressing you tonight has proven a good opportunity for a little reflection, both on this field and my place in it. In the words of the great David Byrne, well, how did I get here? By the mid 1990’s I’d pretty much taken over the reins of my father’s food business, brokering groceries staples like peanut butter and mayonnaise. Selling them by the truckload to big supermarket chains, while still managing to moonlight as a rock musician. It had been a very lucrative business for decades, not the rock musician part. My late uncle Paul was an artist who made collages out of tiny slivers of postage stamps. He worked in isolation, partly because he had been born almost completely deaf. Very few knew his work. Perhaps he’d been included in a few group shows, but certainly never sold a thing. After I showed his work to some dealers, he was niched as an outsider artist, and in fairly short order at the age of 66 achieved some commercial and critical success before he passed away in 2008. He was elated by the level of attention he received, but continued to live a quiet dignified life devoted to his art.


Being a conduit for Uncle Paul was my first step. His work genuinely moved me. I found it elegant and mysterious, sophisticated, but at the same time, tapping into something primordial. I remember that during one of the early exhibitions of his work at my new gallery a visitor came in from a small country in Eastern Europe. What he said about the show stayed with me. Something to the effect that anyone from anywhere in the world could relate to Uncle Paul’s work, that there was a way in. This struck me as almost the highest kind of praise imaginable. To me the best art was almost always the most universal, where I was able to find common ground with the artist through our shared humanity. I’d been developing my aesthetic values steadily since I was a kid, but through the medium of rock music not visual art. In 1969, as a third grader I performed Let it Be and Proud Mary in front of the school. I was transported by the lyrics and the story these songs related, even if I didn’t fully understand them. I had a hippy music teacher from The Village who explained to me that the songs in my Tommy Songbook were all connected as part of one story about a deaf, dumb and blind boy. This was amazing. When I got older, Dylan’s Blood On The Tracks took me on a journey that to this day feels like one of the most visionary American adventures ever.


What I saw at my first Outsider Art Fair in 1995 gave me a similar feeling. Seeing James Castle drawings being pulled out of a cardboard folder for the first time, these huge double-sided Henry Darger scrolls, Ramirez, Wölfli, these worlds that these artists invented sucked me right in. Almost the ways Tangled up in Blue did. In an effort to further my art education, I’d been trying to visit as many galleries and museums as possible. But I wasn’t initiated into the world of contemporary art, and none of the people working at the galleries took much interest in helping me understand what an artist was trying to communicate through an installation or with an abstract painting. I was educated enough, had a college degree in English literature but still I had little inkling about much of what I was seeing. By contrast the dealers at the Outsider Art Fair were happy to tell me the incredible story of these artists which furthered my appreciation for the work.


As I began to get hooked on outsider art, I also noticed the level of attention it was receiving in the artworld was microscopic. As a nascent dealer I was energized to spread the word. After being open for about 4 years I was incredibly fortunate to land an exclusive representing the Henry Darger estate. Darger was already a legend, but had only penetrated the consciousness of the artworld to a modest degree. Now that I was in charge that was of course gonna all change. I can recall meticulously filling out the application for Art Basel, proposing a solo booth of Darger masterpieces. The star curator at MOMA, Klaus Biesenback had just written the essay for the new Darger monograph, so even politically all the stars were aligned, for the most renowned aficionados of art to finally see and hopefully buy these great works. My application was rejected outright. How could this be? Well, it be. And it was on me to figure out what the obstacles were and how I could get around them. What I needed to do according to those in the know, was to demonstrate the relevance of outsider art to contemporary art.


I began to stage hybrid shows at my gallery, inviting thoughtful and youngish Brooklyn artists to curate. The results were tremendous. I drew crowds, and the press responded enthusiastically with glowing reviews. Truthfully, some of the work brought in wasn’t exactly up my alley, but I saw the importance of working outside my comfort zone and I learned a lot about the contemporary art world, a culture that I’ve come to respect and one I absolutely needed to win over to be successful. I suppose for critics and curators there’s often an inclination to compare self-taught artists with their trained counterparts after all they are in search of something interesting to write or talk about and it is interesting. But how relevant is it? Many times have I seen artworlders who wear their encyclopedic knowledge like a badge pinned to their chests opine about some self-taught artist’s work they’ve seen. To use a musical analogy, it can sound like an expert on Rachmaninoff being assigned to review a John Lee Hooker album. Tonight we’re lucky to have one of our generation’s greatest art journalistic luminaries with us, Edward Gomez, who has mastered the ability to speak about all the technical and formal aspects of self-taught art, without overlooking its essence, spirit or meaning.


Another well-known voice in the art world belongs to Jerry Saltz. In 2016 he wrote this in his review of the Keeper Exhibition at the New Museum. “These days our definition of art is mainly art informed by other art and art history. Especially in the last 2 centuries and tenaciously of late. Art is examined in its own essences, ordinances, techniques, tools, materials, presentational modes and forms. To be thought of as an artist someone must self-identify as one and make what they think of as art. This center cannot hold. Why? It’s far too tight to let real art breathe. It’s beyond time for a new generation of art historians, not only to open up the system and let art be the garden that it is; home to exotic blooms of known and unknown phenomena. It’s time to work against this system. The idea that art has an overall goal of advancing or perfecting its terms and techniques is made up, imagined, idiotic, except for those benefiting from this intellectual fundamentalism. Someday people will look back at this phase of art history the way we look back at Manifest Destiny and colonialism.”


I’m rereading this review just as the train pulls into Union Station. I’m looking forward to this show. The edifice of the National Gallery looks majestic as I get out of the taxi and the giant banner advertising outliers is twice the height of the facade of our beloved Folk Art Museum. Walking through the atrium with the sunlight streaming through I get an uplifting feeling of optimism about the show. And there’s also some pride that the art I’ve been championing is continuing to make headway. And then I head down a wide flight of stairs and then another set, and I realize that the show’s underground in the basement of the National Gallery. The first room offers two walls with an installation of sculpture in the center of the floor, all by female artists. One wall holds a large quilt by Rosie Lee Tompkins. Diagonally across a wall-hung piece by the contemporary artist, Jessica Stockholder. On the platform are 5 sculptures. Three by Judith Scott and two by Nancy Shaver. The difference between the works by the outsiders and insiders seems plain enough: Judith Scott wrapping her objects with virtually no art historical awareness and it wonderfully shows. The Shaver sculptures seem more deliberate with careful thought and strategy devoted to the placement of her objects. For me, the same is true of Stockholder’s work. Her assemblage reminds me of the kid’s game Mousetrap with all kinds of disparate materials connected together. It’s the art of the self-conscious next to the art of the unselfconscious, which to me pretty much summarizes the show.


Pairing Henry Darger with Matt Millikin or Cindy Sherman with Lee Godie and Eugene Von Bruenchenhiem. Now this is not to disparage these artists. Seeing and understanding an artist’s complex strategy and composition choices can be hugely exciting. But why are these works in a room and a show together? Lynne Cooke the esteemed curator, has already done important work with artists like James Castle and Martin Ramirez, and she’s clearly demonstrating an affinity between the artworks of the trained and untrained. And pointing out in many cases the schooled artists were influenced by the self-taught ones. This is certainly compelling if not altogether new observation. But there’s also an implication of a dialogue among these artists which cannot be true. Because any influence can only flow one way in this scenario. Did Judith Scott have exchanges with other professional artists, critics and professors. Did she read up on art history or read the reviews of her exhibitions. So while the works of outsiders are granted equal stature in Outliers, it still appears that outsider art is being seen and used as a comparative tool for defining the work by artists who are aware of the canon.


Cooke endorses the notion that the field of outsider art should dissolve into the mainstream, becoming just another dimension of modern art history and she’s not alone. But one of the footnotes Doctor Cooke’s essay does state is troubling to me. It reads, “the focus of the current project necessarily leaves aside reference to the activity of these specialized institutions above all the American Folk Art Museum founded in 1961 and of department devoted to folk and outsider art in museums such as the Smithsonian American Art Museum and the High Museum of Art”. So with that explanation, Cooke is dismissing out of hand decades of research and scholarship by experts at museums wholly dedicated to these artists. In fact, the first phase of Outliers treads on very similar ground as Stacy Hollander’s 2015 exhibition, Folk Art and American Modernism. at the Folk Art Museum with many of the same artists being represented. Is it possible for institutions to embrace the field of self-taught and outsider art without cannibalizing it?


There hasn’t been much pushback either against those who contend that there’s little or no distinction between the fields of outsider and contemporary art. It’s almost a reflex for those of us in the business of outsider art to cite each instance when big movers and shakers in the art world bless the work we handle every day. We bask in their approval and hope that their accolades will morph into something that might even trickle into our bank accounts someday. From the Venice Beinnale to the Metropolitan Museum we feel validated when our underdog community is acknowledged for its outsized cultural influence, less we forget that virtually none of the artists like Darger, Ramirez or Dyal – they didn’t give a damn what the artworld thought about them. In most cases, they didn’t even know what the art world was. So, when we define outsider art or assess its worth only through its relationship with mainstream art, we’re not serving it well or doing it justice. In the current exhibition at the Folk Art Museum: Vestiges in Verse, Notes from the New Fangled Epic, Henry Darger’s original 14 volumes, 15,000+ pages are on display, Illustrating his depth of his commitment, his total immersino in his art. In fact, I would even say, you can’t fully appreciate Darger without seeing these books. To experience the Dellshau, the 46 foot long scroll of Aloise Corbaz and incredible story boards of Adolph lfl, is to witness art that is timeless.


Artists like Darger and Wölfli need to be looked at more like the Homers and Miltons of our time and less as reference points for other artists, critics and media figures. Maybe what I love most of outsider art, is this close connection to the great human tradition of storytelling. Reading or hearing a great story can move us transform us, change how we think. The stories my dad told me about his childhood affected my profoundly. He was a classic joke teller. One of my favorites was where the Baron Von Rothschild the famous British financier is picked up at Victoria Station by his horse and carriage and driving him out to his countryside estate. He hands the driver a one pound note who says “thank you but even your son gives me two pounds”. He goes “sure, he has a rich father”. The young- it’s a funny joke, but it’s also true about the nature of entitlement. The young Rothschild is cavalier with his money precisely because he didn’t earn it himself.


Having expertise in one domain doesn’t make that knowledge instantly transferable, so can be with those making pronouncements in generalizations about outsider art. Even though they might not have looked at or studied the work on its own terms away from the lens of professionalized art. In closing I want to thank Richard Lehun, Stropheus and Sotheby’s for inviting me here tonight. As we ponder these issues we can’t help but acknowledge that these are indeed exciting times for our field, and it’s a good thing that so many new eyes will fall on this work in large scale museums like the National Gallery. We owe a debt of gratitude to curators like Lynne Cooke, Massimiliano Gioni and Matthew Higgs, who have helped with their distinct curatorial positions to expand the audience and appreciation for outsider and self-taught art over the years. But let’s also not forget the legions of art dealers, collectors, museum directors, writers and curators who have already been beating the drum for self-taught artists for generations. Outsider art is indeed art with a capital A, but it’s also kind of its own thing. If you’ve ever been to the Outsider Art Fair, then you know what I’m talking about. And if I might suggest, the next time you’re about to check the temperature on your iPhone open the door instead and step outside. You don’t need a weatherman to know which way the wind blows.





Very briefly I want to give you the sense of the collective history and implicitly a sense of the broader global view of activity in the related overlapping fields of Art Brut, Outsider Art and so-called Self-Taught Art. And I’m sharing this group of observations obviously from my vantage point as a researcher, critic, reporter, and educator who has been deeply involved with these related fields for many, many years.

First, I’d like to talk to you about the terminology. Art Brut, Outsider Art, Self-Taught art, Visionary Art, Intuitive Art, Naïf Art. Various labels have been kicked around for many decades to describe and identify the kind of artworks that we’re discussing tonight. No one label sits comfortably and accurately and completely identifies the kind of artwork we’re talking about. So, as a result, collectively we tend to refer to all of these nuanced forms as Outsider Art, hence the name of the fair: The Outsider Art Fair. There are nitpickers but let them pick.

Naïf Art, however, is one term that bit the dust some time ago. And we can thank our confrères and consœurs in the postmodernist critical camp for helping us dispense with that one. The assumption coming from postmodernist critical thinking is: Naïf? Naïf to whom? Who’re you calling naïf?

We speak about the field, those of us who are researchers, art dealers, collectors, promoters in it. And it’s just a handy nickname – shorthand – for this material we’re investigating and celebrating. This field emerges out of, is related to, what is not necessarily dependent on the development of the field of psychiatry, especially as this medical field was evolving in Europe during the late 19th century and early decades of the 20th century. By the early decades of the 1900s, doctors at some psychiatric hospitals in Europe at what used to be called mental asylums, another term which is poo-pooed, were paying attention to what could be described as artistic creations made by certain resident patients in their institutions. These creations might have been drawings or handcrafted objects made with found materials. Nowadays, many psychiatric hospitals have so-called in-house art therapy or occupational therapy programs for their patients. And in many of their institutions, participation of those patients in such programs is regarded as not merely a way of filling up their time, but rather as a worthwhile activity that may actually contribute to the healing process.

Often patients in such institutions were diagnosed with psychosis, especially schizophrenia. But keep in mind that psychiatrists a century ago did not have the more nuanced understanding of mental illness, particularly schizophrenia and psychosis, that their successors in the 20th century and today possessed and possess, and by which they guided in making their diagnoses and treatment programs. Also, keep in mind, a century ago, there were no drugs of the kind we have today for mental patients.

Some of the most important people associated with psychiatric hospitals in Western Europe in the early 20th century who were paying attention to the creations of these resident patients were people like, Doctor Hans Prinzhorn at the University of Heidelberg Psychiatric Clinic, who in the early 1920s was collecting work. Doctor Walter Morgenthaler near Bern, Switzerland, who was the physician overseeing the artist Adolph Wölfli and recognized his artistic genius and in the early 1920s, published a book about Wölfli called Ein Geisteskranker als Künstler in which he recognizes this mentally ill patient as an artist. So, this was somewhat radical, this kind of thinking about what these people were making.

Fast forward to the 1940s, the modern artist, Jean Dubuffet and a group of his pals, like the surrealist leader André Breton, became very interested in the work of not only mentally ill persons, but people working, making art in prisons, distinctive carvers, self-taught painters who were not working in traditional folk art styles, and other unschooled makers of what they considered rather unusual, exceptional works of art. Common to what these people were making was the fact that they had not studied art making or art history in schools. They usually found themselves on the margins of mainstream culture and society, either by choice or by the force of circumstances, often using found materials.

Dubuffet and his colleagues recognized that such self-taught artist creations could be regarded as works of art, and this is very interesting, because in doing so they were implicitly beginning to evaluate these creations with aesthetic criteria in mind. And very important was that they recognized that the kinds of so-called artworks that these people were creating were unique in themselves. This became a very important criterion for Dubuffet’s in recognizing and identifying, and ultimately labeling, a work as Art Brut, which in French literally means Raw Art. There are some historians who also think he was pulling our legs. Why? Because Dubuffet came from a family that sold wine on the Atlantic coast of France. And as you know, there is a champagne that is brut. And so, some people think he was playing around with this. These works also, Dubuffet pointed out, all convey and represent a deeply unique personal vision on the part of their creators. That vision might be artistic, spiritual, political, social, historical or a combination thereof. Wölfli’s work is a very good example. He was in the very early publications of Dubuffet’s association, which he had established in France with some fellow critics and writers and artists in the 1940s.

Fast forward to the 1970s, early 1970s, there was a historical, for us in our field rather, historical exhibition in England, put together by Roger Cardinal, the book that accompanied it was called Outsider Art. Professor Cardinal’s publishers said “Roger, that will never do. Art Brut will never be understood by the British visitor to the museum, and nor will make sense in a bookstore, so we have to fish around for something else.” And they came up with Outsider Art to sum up and reflect Dubuffet’s description of art of this unusual kind. And the term stuck. However, it also suggested a more expansive meaning, and helped shift the tension in this field to the status of creators as so-called outsiders.

Dubuffet had referred to these art makers in French also as Créateur or Auteur. If Dubuffet had highlighted both the conditions of the art maker’s life in society and the character of his or her creations, Roger Cardinal’s new label helped steer attention more to the unschooled art makers’ situation outside mainstream society, but not necessary completely removed from mainstream culture. You’d have to be brought up as an enfant sauvage, out in the forest with no contact with a radio or television or newspaper, to be completely removed from culture.

So, the term self-taught art is something much more recent. In recent decades, especially in the United States, this term has come into use in the art market and the media to refer in an even broader way to the creations of Art Brut and outsider artists. But as you can see, this term explicitly cast the net very wide. As a result, many creations by persons who can be called or do call themselves self-taught have emerged in the art market. But can or should all such works properly be labeled Outsider Art or Art Brut as well? Technically, all works of Art Brut can be properly placed in the broad field of Outsider Art. But can all Outsider Art be considered to be works of Art Brut? Conversely, from the even broader vantage point of so-called Self-Taught Art, and note that it’s not the art that’s self-taught, it’s the maker who is self-taught, so these terms are sometimes rather dubious. All Art Brut or Outsider Artworks are by definition produced by self-taught artists, but not all specimens of Self-Taught art can be properly be classified as works of Art Brut or Outsider Art. Are your heads spinning? I’m not quibbling about the co-existence or the respected specificity of each of these terms. There was a woman involved in this about 30 years ago who once said, “we’ve got to stop the term warfare.” But in my opinion, the time for arguing about which one label to use to universally categorically identify or refer to all of these different but often related kinds of artworks that can or are designated by these different terms, that’s over. As I said, collectively, the umbrella term we can appropriately use is Outsider Art.

That is not to say that these terms can or should be used synonymously or interchangeably. They should not. Each one has a specific and nuanced meaning. They can and should all be used in an informed manner, especially by art dealers, teachers, curators and the media, all of whom perform roles as educators about this kind of art whenever they examine or present it. In practice, as I said, Outsider Art has become the common label.

Now this is something that’s interesting. I want to just tell you two critical vibes that are emerging. One is that of the rejection of the term “outsider.” The rejection of the term “outsider” by those who believe that this sounds pejorative and assumes that whoever or whatever is being placed outside is being categorized or placed there by those on the so-called privileged “inside.” This point of view comes straight out of doctrinaire post-modern critical theories’ textbooks. Normally, the “inside” would seem to refer to various places of positions within the so-called mainstream art establishment and its supporting institutions and infrastructure, such as the specialized art media or the mass media. Some people question if these outsiders are really “outside.” At the same time, we are seeing the embrace of the label “outsider,” by art makers and others, some musicians who might not be self-taught at all, who might be quite well-schooled and aware of art history and the art mainstream, and even tapped into it, but for whom “outsider.” with a nod to cultural politics, has become a declaration of a kind of social, cultural, political position or even of a stylistic fashionable pose. Les Poseurs.

Dilemma: if anyone can be a self-declared “outsider,” then who or what is a genuine “outsider”? Now, I’m going to leave you with a few critical issues, that are also on the radar screen. Andrew [Edlin] hinted at this. I’m just going to let out the full arsenal. Let’s put to rest right now the notion that however, whenever, or wherever it may be implicitly or explicitly expressed, that Outsider Art can or must be, or somehow is, legitimized, or validated, if or when it is presented alongside art made by academically trained so-called professional artists who are knowledgeable of mainstream art history, and make their works in dialogue with it. That is, art products made primarily for sale in the mainstream art market and presented in mainstream art establishment institutions. To assume, never mind state, that outsider art is somehow validated or legitimized by its real or imagined proximity to mainstream art product, or its supported institution is to misunderstand the essential nature of this art.

Just lowered the boom. Now I’m going to zip ahead to Judith Scott, whom Scott Ogden just mentioned. This kind of art by definition is unique unto itself. Certainly, as any other art form, it can be compared to and contrasted with countless other art forms examined and appreciated vis-à-vis a myriad of concerns and characteristics. But it does not need to be validated by anything other than itself. That’s the main point I want to make. And that is coming from Dubuffet’s theory about its uniqueness. Like the best forms of artistic expression of any kind, in any discipline, outsider art embodies and communicates its own inherent truths. And it is our jobs as observers, as art appreciators, as critics certainly, to find those truths and articulate them.

Now, having said all that, at the end of 2013, a New York Times report on the year’s events and trends in the international art world, of which the art market is a large part, stated breathlessly, “this was the year that outsider art came in from the cold.” Now I ask, as an informed observer, and I saw the exhibition at the 2013 Venice Biennale, exactly what did that remark, which was packed with assumptions mean? From exactly which supposedly cold precincts did outsider art finally emerge? Cold in relation to what? What might have been the hot?

The Times offered as a rationale for its assertion that outsider art had been featured “most prominently in the centerpiece exhibition of the Venice Biennale.” That big exhibition was called The Encyclopedic Palace. It was organized by Massimiliano Gioni, a curator here in New York. That exhibition took its name from that of a sculpture by an Italian-American self-taught artist Marino Auriti who in the 1950s imagined a museum which he called Enciclopedico Palazzo del Mondo, which was to house all the knowledge in the world. His sculpture was a model of his proposed museum building. And that lovely sculpture is housed at the American Folk Art Museum here in New York.

That exhibition at the 2013 Venice Biennale placed outsider art alongside the creations of academically trained artists, including some big-name stars in the mainstream such as Bruce Nauman, Charles Ray, Cindy Sherman, and others. In fact, by the time the time the New York Times article was published in December 2013, the market for the works and the market for the best self-taught artists, which had been around for several decades, had long been quite high. Such works had been increasingly visible in the mainstream media. They had become more and more popular among general interest audiences.

Just look at the attendance figures of the annual Outsider Art Fair. Kudos, Andrew! They had become ever costlier in gallery art fair and auction sales. Around the time of the [2013] Venice Biennale, a British writer [Sam Thorne] wrote an article about it and quoted Gioni who said that “he hope[d] that his exhibition will ‘blur the line’ between the insider and the outside.” Here we go again with this hackneyed, cliché, binary thinking. However, the writer of this article in Frieze magazine went on to write, referring to works of art by self-taught outsider artists, “[D]oes the inclusion of such works really question the mainstream, as Gioni has suggested, or is it just further proof that – in order to maintain its primacy – the mainstream always needs to designate exceptions?”

Okay, I’ll leave you with these two points. A few months later, around the time of the Outsider Art Fair 2014 in New York, a few months after the Venice Biennale closed, my colleague at Raw Vision Magazine, John Maizels, its founder, spoke with me about this trend of bringing together works of academically trained artists and those of remarkable autodidacts. Maizels noted, “it is definitely happening. Is it because the contemporary art world has open up to the fact that outsider art is quite popular now, or is it because outsider art prices have risen and therefore this kind of work seems more worthwhile to people in the market that is?” I think it’s a bit of both. So, if that’s the case, here are questions for the jury to consider. Is it worthwhile, desirable, or necessary to “blur the line,” as Gioni said in his 2013 interview, between artistic creations that are identified as those of outsider artists and those who are made by academically trained so called professional artists? Or not? Or is it possible and could it be more satisfying or perhaps illuminating to allow works of art that are classified and labeled one way and those that are classified and labeled another way to co-exist; to appreciate them for their respective, and yes sometimes shared or common characteristics or affinities, without wanting needing or expecting one kind of art to somehow validate or legitimize another, or to be regarded as possessing some kind of greater aesthetic historical or other value than another? In his article in Frieze magazine, the British writer Sam Thorne, who happens to be a museum director in England at the Nottingham Contemporary, also cited the curator Lynne Cooke, whom Andrew mentioned today, a curator who has long worked in this field, is now on staff at the National Gallery of Art in Washington DC. Thorne quotes Lynne Cook, who observed that “outsider art has come to be viewed as a parallel field, separate but equal to contemporary art.” He noted that Cooke had pointed out that “parallel lines can never converge.”

Now, I can leave you there. But I just want to show you one slide that’s very important. Art Brut and Outsider Art’s historical root territories are Europe and the Americas. Traditionally, these related fields have been driven by the activities of self-motivated researchers and collectors whose research pursuits and collecting have gone hand in hand. This cannot be emphasized enough. This is a field that grew out of the activities of researcher collectors, and to this day is still dependent on some of the energy and passion of collectors who are very good researchers, and the best dealers also function, particularly in this field, not just as promoters, sellers, but as researcher educators. This is very unique to this field, somewhat in the way that any specialized field of antiques or decorative objects might appear to you. I can tell you from my vantage point, as a curator working at the Collection de l’Art Brut in Lausanne, Switzerland, which Dubuffet founded 40 years ago, that indeed specialized institutions of this kind, which there are very few of, and the marketplace in general (Scott Ogden alluded to this), are all hungry for discoveries, and so the researchers in this field are branching out beyond the familiar territories of Western Europe and the Americas, and we are now seeing exciting finds coming from Asia, Africa and other parts of the world, so that’s where the research stands.
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End of Brick and Mortar: Part II


In Part II of this panel discussion on post Brick-and-Mortar experiences held at Christie’s Education New York, Josh Baer provides historical contextualization and market insight, after which Richard Lehun will present on the legal challenges created by hybrid art business practices. Part I with Nicole Klagsbrun and Jay Gorney can be found here.


 

Josh BaerJosh Baer

Hi everybody, I’m not doing PowerPoint. I thought it was better that I listen to my esteemed colleagues and try to react to that and get a sense of who you are. It’s interesting to hear them speak, because of my history. I started running White Columns, my first show was Lee Quiñones in 1980 and my second show was Peter Schuyff, who used to be my assistant. I think he worked for fifty dollars a week, something like that.

After running White Columns, I couldn’t get a job, I didn’t have any money, so I opened an art gallery – because it seemed like a good idea at the time, and the notion of not knowing anybody who bought art didn’t seem quite as foolish then. I think part of what’s going on with all of us is that was one of the advantages of being young, and sort of inexperienced. Now we’re sort of in this more mature, white-hair kind of period. So our changes in life have to do with youth vs. hopefully a little bit of wisdom. So, I opened a gallery much as Andy Warhol would throw a party. I would say that in the mid-eighties, three of maybe the five best galleries in New York for artists of our generation were Nicole, Jay and myself. And of the 20 best galleries in New York at the time, I would say that we were on that list. It’s interesting to see that none of us are doing that now. That’s significant. It made me reflect that, wow, if you look back into the 60s, how many galleries are still going that we could name? Not many. 70s not many, 80s fewer, 90s… So though this topic is about the shift of the brick and mortar or the gallery system, I think it’s always been a little bit the case that as people got more mature their circumstances change. Personally, I closed my gallery because I was destitute, out of money and the art market had collapsed.

We haven’t mentioned money yet, but that’s what happened in the 90s and I know that it affected all of us in different ways. But if three of the five best galleries of that period couldn’t make it, that’s meaningful. If we’ve got roughly six hundred galleries in New York now, how many of them are really extraordinary? And we don’t really talk about that. And how many of them are likely going to be alive, how many are going to be flourishing 5, 10, 20 years from now? I’m going to say not many. And it’s always been that way.

So, I didn’t have much choice. I think these guys (Nicole and Jay) had a little more choice. I closed my doors and I went, now what? And I heard of this thing called the fax machine, so I created this newsletter called the ‘Baer Fax,’ which was a brand-new term. This was 21 years ago. There was kind of a ‘shower idea’ that Jerry Saltz was supposed to be my partner and that’s a long story. And lo and behold people think that it’s a big deal now (or not). But for me, it’s not a very big deal. Running a gallery, representing artists, is a very significant activity that really adds a lot to the world of art. Being a newsletter, or, now I’ve been an art advisor for twenty years, it’s a very satisfying activity to do. It’s not quite as important as running a gallery.

But it’s something that’s probably personally better, and I think that all of us, after thirty or forty years, you start to say, “well what’s best for me vs. what’s best for the artists I work with.” It’s a very hard switch to make, because for many years, we were really- you know, as a gallerist, you’re the friend, you’re the psychiatrist, you’re the banker, you’re the mother, you’re the father of all these artists. And it’s a very confusing power position, because that relationship is driven by the artist, and they’re not our friends. We’re their friends when they need something; they are not our friends when we need something.

It took a long time to understand that and to understand what was best for us, and I think largely what’s happening for all of us is asking the question, well, what works for us as much as for the artist? Now, before we bring it to that question, which I think will be an important part, I think it’s notable that we were also lucky that we came of age in a golden age of art making. The late seventies, early eighties. It’s like, oh my god, there’s Cindy Sherman, she’s sitting at Artist Bays but here’s this photo, $100 bucks, what a great thing. Wow, I went down to see Jeff Koons, there’s Richard Prince, hey, I went to Europe, have you ever heard of this guy named Gerhard Richter? No, but there’s this other guy named Polke. It was a magic time to be a young person in this business.

I think today, the people who are running the art galleries are as knowledgeable and talented as we were, they just happened to coming of age in not quite a glory time of art making. So, in the sense that we are talking about the brick-and-mortar and the technical things about art fairs, actually everything to do about the art world and the art business is really driven by the artists. It’s really up to them to be creating such exceptional art that makes so many people want to be involved, and I would argue that we’re not at this golden age at the moment. Maybe that’s because the art market has been the driving force, maybe we’ve been over-commercialized. Maybe we’re getting too much attention. But it will happen again, where the art will drive it.

If you look through history you’ll see very few artists that are remembered through the ages. How many artists do we remember from the Renaissance? I can probably name two, but I didn’t study art, some of you maybe ten, and that’s the Renaissance. So meanwhile we have this system of six hundred galleries in New York or eight hundred, and over three million artists in America working. I had a conversation with Jerry Saltz and I said, “Jerry, I’m not interested in a million mediocre, respectable, OK artists.” And Jerry said, “well, I am,” which was interesting and honest. I’m interested in five, or ten, or fifty. And again, I was fortunate that when I was twenty-five there were these people and you could see them. They’re still around, and there will be that many, but in this over-convoluted system of ten times as many collectors, ten times as many galleries. “Oh that’s good, it’s a nice job, you can tell your mom you became an art dealer, they won’t shout at you like they would have forty years ago,” but we’re just in a different moment, we have a lot more noise going on.

And I’ve tried to encourage people, let’s put Bose headphones or something, get rid of the noise and bring it down to the artists that are really going to change everybody’s view of the world, and that might be one we haven’t met, or one that Jay went to see in studio today, or one that Nicole is championing. But that’s the focus that I want to see. So I’m going to make one more point that’s completely opposite to everything that I’ve said, and that’s interesting that no one’s really mentioned, which is the Internet.

We’re talking of the demise of the brick and mortar, and the internet is a way of communication. Certainly we all email. Right now people don’t have a chemical view of art, where you used to smell the painting, look at it, think about it. You get a jpeg and you have ten minutes to decide. Strangely enough for my career, I also work for eBay, and my job is to try to figure out a way for them to bridge these worlds. It’s an interesting challenge, because it’s the exact opposite to what all of us in this room are doing. So, I’ll just make these points in general and hopefully we can get to questions soon to find out what you guys really want to learn from all this and we can argue between us. Thank you.


 

Richard LehunRichard Lehun

I’m going to be doing a little more nuts and bolts here. One of my concerns, or what has been my recent experience, is that a lot of gallerists are branching out and are trying to embrace new models, trying to work with a situation that for many is unparalleled. The generation before us had a variety of experiences, and built their careers at different points of opportunity in the city, which are difficult to find in the present. One of the reasons I wanted to have you guys here is because I wanted to revive an understanding that the city goes through a lot of very difficult and rapid changes. It has done so as long as we’ve worked in this industry. But there is a point to circle back to, which is to re-pose the question, “what’s in it for me?” in a substantive sense. I think the three of you with your individual biographies have done that, and that’s why when we come to our Q&A and also to our reception where we can have a one-on-one and the dialogue can continue, that we have the opportunity to have the benefit of that experience in the room.

I’m going to be talking about a little more what we need to think about regarding the hybrid gallerist business models. Things are changing really fast and only by coming together today and discussing what the implications of that are can we work together to try to understand it and work through it. This is just a short list of the closures in 2016. The brick and mortar gallery is under serious attack. As is the Leo Castelli artist-gallerist model. Two market pressures account for the shifting tectonic. There are over 300 noted art fairs at this point and gallerists are doing over 40% of their business away from the physical gallery. Rent has entered the stratosphere, with Chelsea costing up to an average of $80 to $100 or even more per square foot.

New business models are however emerging around the classic roles that our three panelists have discussed, as they go through the various stages of their careers, embracing different types of freedoms and opportunities. These models are primarily: gallerist, dealer, and art advisor. This chart shows to whom typically each role owes legal duties. So we have the gallerist in the primary market working on artist consignment, who has disproportionate legal duty to the artist. We have the dealer in the secondary market, I’m just using here the general term of entrustment, which is also a form of consignment, but we’re not going there now. And most of the legal obligations are to the seller, obviously. And then in the case of the advisor, where you get your income from the sale, your loyalty is exclusively to the client-buyer.

We had an event on art advising where we went into a little more detail about this. There’s a lot of confusion about this. As an art advisor, if you’re being paid by a client-buyer, you have exclusive obligations to that client, at the expense of all other stakeholders. And we’ll go into that a little bit in the coming slides. So, what we have here is a little bit like the five boroughs of art business and what it means in the legal sense. The reason why I’m leaving it in its complexity right now is to give you an idea of the many different sources of liability there are, where you could get hit from.

A gallerist in the primary market will have special fiduciary duties to the artists, even after leaving the physical gallery. The main source of these special fiduciary duties are the consigned artworks, the funds held in trust, and those stemming from the artist representation relationship. A gallerist acting as an art advisor is the agent-fiduciary of the client-buyer. In both these cases, the artist-gallerist relationship and the hybrid gallerist in today’s world also functioning as an art advisor, the following duties arise. The duty of loyalty: to have no conflicts of interest, to have transparency, no undisclosed profits; and to exercise prudence in that relationship: prudence in the dealings with the artist, and prudence in the dealings with a dependent client-buyer as an art advisor.

These duties exist even if a contract says the opposite, or even if there’s no contract at all. A gallerist acting as a dealer, however, in the secondary market, works entirely differently. Buying and selling secondary artworks is largely a commercial transaction subject to what’s called the Uniform Commercial Code, which is a body of law across the United States to try and make buying and selling things easier. And make it so that people in different states in different situations can rely on each other. Then you have also tort law, which is basically a default liability where you have to behave in a way that you’re taking reasonable care in a situation, not exposing someone unnecessarily to risk. That exists completely independent of contract. And then you have the layer of contract itself, if you have one.

And in some rare cases, as a secondary market actor, you have an issue of bailment and agency law. That means when your sales don’t reach the level of you actually being an art dealer, you’re considered by the law to be a more private person, and in that situation there are other duties that can arise. And if they arise, they can go in the direction of these fiduciary duties that I just mentioned, that we’re going to cover in a little more depth.

Let’s look a little closer at what these fiduciary duties mean, because they are not very well known. Fiduciary duties change the nature of obligations that people owe to each other in very unexpected and dramatic ways. Instead of equal parties to a contract, fiduciary obligations create two distinct roles: the fiduciary, that’s the gallerist or the art advisor, the person who has power; and the person who’s dependent or has to rely, the entrustor. It’s really important to understand that whenever you have the word agent, whenever you’re acting as an agent for something or somebody, you have some degree of fiduciary duties. Agency and fiduciary duties are inseparable. Any time you are acting on somebody’s behalf, and it’s considered an agency relationship before the law, you have special obligations. Whether you have a contract, whether you contemplate these things, whether you’ve even heard about this, whether you even think that you don’t possibly by virtue of what you’re doing have such obligations, the law has those obligations in place and will enforce them against you.

And again, when agency-fiduciary duties are present, they can trump any contract or non-legally binding agreement. Even in the case when you have a discussion, and you come to some kind of agreement over something, but you aren’t necessarily ready to create legal obligations, but yet you think you understand each other, the fiduciary duties can trump all of that.

Fiduciary obligations legally order uniquely valuable social relationships. We find fiduciary obligations in doctor-patient relationships, lawyer-client relationships, amongst partners in a business venture, and in corporate governance. Fiduciary duties are imposed by society to balance power differentials.

Relationships of trust in the art context – if there’s one thing that any veteran in the art context will agree to it is that without trust, without having a high degree of reliance on other actors, it’s impossible to really function. And so interestingly enough, the law has regimes in place that mirror these types of experiences, these types of expectations that we have. So, relationships of trust in the art context are in fact inseparable from these fiduciary obligations.

It is important to understand that fiduciary obligations are imposed by courts. So again, it’s not what you think it should be in that relationship, it’s not what you think is right, it’s not even necessarily what is in your contract. If you are an art advisor, if you’re a gallerist dealing with an artist, and you do something that makes business sense to you. or even might be fair from a business point of view, but can be understood as abusing your power, a court, through the vehicle of fiduciary obligations, can basically claw back profits, or force you to perform, or perform differently. So courts are effectively the source of these fiduciary obligations, not our expectations, or our contracts, etc.

To understand what these fiduciary duties largely consist of, there are two primary duties, loyalty and prudence. The gallerist must be loyal, the art advisor must be loyal, which means they must be free of conflict of interest. He or she must act only in the interest of the artist or the advisory client, and also in the dealings there must be prudence, you must use your experience, your reasonable reflection and your professional capacity in order to make decisions that generally reflect the interests of your artists and your clients.

Loyalty require that the gallerist or art advisor cannot act for the benefit of a third party whose interests are in conflict of with those of the artist or the advisory client. The hybrid gallerist cannot act for his or her own benefit to the detriment of either without being transparent about this. That means you can’t engage in dealings that are lacking in transparency. Let us remember that the consignment relationship with primary artworks and the art advisor relationship create this special relationship.

It’s also imperative in these two relationships that all profits be discussed, that everything be disclosed, that any benefit that would accrue to you, be very clear to the artist or to the client, in the case of being an art advisor. These are things that are often not understood. The difficulty is that when these things are not properly disclosed, if the matter ends up in court, the default fiduciary obligations will force full disclosure and disgorging of any profits. The artist or art advisory client is not obligated to even ask for this, or to provide for this, or even know that this exists legally. It’s simply imposed externally by the law. Exposure, fiduciary exposure, lasts a very long period of time, and is not very easy to get out of.

In closing, fiduciary duties on art advisors and gallerists who are in relationships with artists balance agency costs. Agency costs arise when the art advisor or gallerist in this sense takes discretionary but imperfectly observable actions that impact those stakeholders. So despite being not well known, fiduciary obligations and agency relationships are at the core of post-brick and mortar practice.

So the solution is: get good contracts! At no other time has it been as important as now to know where risks are coming from. Having no contract does not mean that there is no law. It just means that you are playing Russian Roulette. Much of this law that we’re talking about is directed towards holding you accountable in ways that may or may not have anything to do with you. They may not be fair at all. But these sources of law will be determinative. The only way to deal with legal risks, especially fiduciary duties post-brick and mortar, is to have the right contracts in place. I’m going to spend two slides on non-fiduciary legal issues, because in some senses they are less complicated and generally better understood.

Selling secondary involves a very different palette of obligations. The most important thing to remember, just as I mentioned a moment ago, even when there’s no contract there is a ton of law imposed on you. Secondary sales are largely controlled by the Uniform Commercial Code, UCC for short. Then there’s tort law, I mentioned, which we will reduce to negligence here. Long before you even think of a contract, every secondary market deal is determined by a web of default laws.

The UCC sees you before you see it. All the default warranties that listed here, are in place to protect the buyer and ensure speed of transactions. We have express warranties, I’ll just read them thorough: warranty by affirmation of fact, warranty by description, the implied warranties, which means even if nothing exists, no comment is even made regarding an artwork, there are warranties implied by the UCC. Disclaimers for warranties. That means the ability to say, no, I’m not sure, or I’m not going to hold out anything, is difficult. Generally speaking there is a bias regarding you as a seller having knowledge, having the artwork and holding it out to the world in a way, and there’s a legal bias against you. So, the ability to disclaim these warranties, get out of these warranties without being very sophisticated about it is very limited. So, disclaimers for warranties can be ineffective and require drafting by very competent legal counsel.

Tort is another source of liability if you are in the secondary market. Any time the hybrid gallerist engages in secondary markets sales they confront the risk that something they are doing or saying is based on false or inadequate information. The standard of care you need to maintain is directly proportionately to your sophistication. That means the further you are in the game, the more capacity you bring to the table, the more weight the law will give to your statements, opinions, or position vis-à-vis provenance, title, quality, qualities of an artwork, etc. That is something to bear in mind, that the legal obligation that comes from fraud or negligent representation is directly proportional to being a competent art context actor. So, the better you are, the more likely a mistake can be held against you.

So, yes, you do need a contract, and if you do one thing long enough and well enough, maybe luck will stay with you, you won’t get blindsided. The more diversified your hybrid practice is, the more likely it is that something can fail. The underlying message here is that along with the tremendous opportunities that exist in the present, we have to be cognizant that all of these opportunities go back into various directions of legal obligation. And it’s not as simple as stepping out into the free-zone. There has to be an awareness of what that changed model will mean to you in terms of legal risks. So, when you are exposed to such a complex web of largely invisible default obligations, you need to be on the right footing. Yes, you need a contract, and no, it won’t kill you to get one. In fact it might be the one thing that will allow you to keep going, even if you are forced to read it thoroughly. Thank you.

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15 Minutes on Infringement and Fair Use


 

I’m . This is the second of my two-part talk on Art and Copyright. In Part I, I provided a background on basic copyright principles in the U.S. In Part II, I will discuss copyright infringement and fair use, with a particular focus on appropriation art.

What is copyright infringement?

Copyright infringement occurs when there is an unauthorized exercise of any of the exclusive rights (“bundle of rights”) protected by copyright. As I discussed in Part I of my talk, the copyright owner (in the case of artworks, this is generally the artist), is entitled to a bundle of exclusive rights listed here.

Copyright infringement occurs when one violates any of these rights:

Right to reproduce;

Right to prepare derivative works;

Right to distribute copies;

Right to perform; and Right to display

What is fair use?

The fair use doctrine, which is codified in Section 107 of the 1976 Copyright Act, is an affirmative defense against an action of copyright infringement. Fair use protects secondary creativity as a legitimate concern of copyright. It allows a sort of breathing space for the use of copyrighted material without the copyright owner’s consent in a reasonable manner for certain purposes. Although the statute does not define fair use, the “preamble” of Section 107 of the 1976 Copyright Act recognizes fair use “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.” These categories serve as a guide and are not a requirement. The inquiry, however, does not end here. A court must still consider the four fair use factors to make a final determination as to whether the use is fair use in light of the underlying purpose of copyright “[t]o promote the Progress of Science and the useful Arts, as set forth in the United States Constitution, Article 1, Section 8, Clause 8.

I’ve listed the factors here, and will discuss them in more detail in a moment:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

First Factor

The first fair use factor, purpose and character of the use, considers:

  1. Whether such use is of commercial nature or is for nonprofit educational purposes
  2. Whether the work is transformative (a mere photocopy is not transformative)
  3. Sometimes courts also consider whether the defendant acted in good faith or bad faith.

Influential law review article on Fair Use, by Judge Pierre Leval

In 1990, Judge Pierre Leval published a groundbreaking article in the Harvard Law Review entitled “Toward a Fair Use Standard.” Judge Leval wrote that the first copyright factor looks to whether use “merely repackages or republishes the original,” or whether it “adds value to the original – if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings.” The latter situation “is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.” In Judge Leval’s mind, “Factor One is the soul of fair use.”

Second Factor

The second factor instructs us to consider the nature of the copyrighted work.

  1. One element is whether the work is published or unpublished.

An unpublished work will be subject to a higher degree of protection than a published work, and a defense of fair use is less likely to stand. The Second factor also looks to whether the work is factual or fictional. Factual works are subject to less copyright protection than fictional works (of the imagination).

Third Factor

The third factor – the amount and substantiality of the portion used in relation to the copyrighted work as a whole – looks to the quantitative amount and qualitative value of the original work used in relation to the justification of that use. An allegedly infringing work that copies little of the original is likely to be fair use.

Fourth Factor

The fourth factor – the effect of the use upon the potential market for or value of the copyrighted work – considers:

(a)the extent of market harm caused by the defendant’s actions, and

(b)whether conduct of this sort would have a substantially adverse impact on the potential market for the original. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

Where the allegedly infringing use does not substitute for the original and serves a “different market function,” this factor will weigh in favor of fair use.

Rogers v. Koons

Let’s look at some leading copyright fair use cases. One of the most well-known cases concerning fine art is the 1992 Second Circuit case, Rogers v. Koons. The case involved Koons’s creation of a sculpture (on the right) based on a black and white photograph by Art Rogers (on the left).

In 1986, in the course of preparing for an exhibition at the Sonnabend Gallery in New York on the theme of “Banality,” Koons came across a Museum Graphics reproduction of Rogers’s photograph, “Puppies,” and decided to use that image as a possible reference for a sculpture. The photograph depicted a scene of a couple holding a new litter of eight German Shepard puppies, which Koons found to be “typical, commonplace and familiar” – in other words, banal. Koons tore the copyright notice off the card and sent it to Italy to be copied. He visited the studio and directed the artisans to use the same angles, poses, and expression as in the photograph. He altered the work by making the couple appear vacant, with daisies adorning their hair, and painted the puppies a garish blue color. The polychromed larger than life-size sculpture was fabricated in a limited edition of four, and sold three copies for a total of $367,000.

Rogers brought a copyright infringement action in a New York federal district court against Koons and the Sonnabend Gallery, and won in 1991. On appeal, the Second Circuit upheld the copyright infringement decision and addressed each of the four fair use factors. With respect to the first fair use factor, purpose and character of the use, in addition to arguing that the sculpture was a parody, Koons emphasized that his artistic practice drew upon the movements of Cubism and Dadaism, and was especially influenced by Marcel Duchamp and his incorporation of manufactured objects (ready-mades) into works of art.

While the court acknowledged this artistic tradition, it nevertheless rejected Koons’s parody argument, observing that a parody “must be, at least in part, an object of the parody.” Instead, the court asked “whether the original was copied in good faith to benefit the public or primarily for the commercial interests of the infringer.” In particular, the court noted that Koons’s action in tearing the copyright notice off Rogers’s card suggested “bad faith” and militated against a finding of fair use.

As to the second factor, the nature of the copyrighted work, the court noted that fictional works receive greater protection than factual works. In the court’s view, Rogers’s photograph had more in common with fiction than with a work based on fact, such as a biography or telephone book. It signified an investment of time and effort in anticipation of financial return, a factor that also precluded a finding of fair use.

The third factor, the amount and substantiality of work used, also tilted in favor of Rogers. The court found that “the essence of Rogers’s photograph was copied nearly in toto, much more than would have been necessary even if the sculpture had been a parody of the plaintiff’s work. “In short, it is not really the parody flag that [the defendants] are sailing under, but rather the flag of piracy.”

Finally, on the fourth factor, the effect of the use on the market value of the original, the court stated that this was “the most important, and indeed, central fair use factor.” The Second Circuit found that because Koons’s String of Puppies was “primarily commercial in nature” and sold as “high-priced art,” the likelihood of future harm was presumed as a matter of law. Therefore, weighing the four factors and applying the prevailing fair use analysis at the time, the Second Circuit upheld the copyright infringement decision.

Campbell v. Acuff-Rose Music, Inc.

Two years later, in 1994, the U.S. Supreme Court decided Campbell v. Acuff-Rose Music, Inc., clarifying important guidelines that have since formed a basis of analysis for lower courts deciding fair use cases, including those involving visual art. This landmark case is the Supreme Court’s latest pronouncement on fair use. In Campbell, a rap group, 2 Live Crew, recorded a rap version of Roy Orbison’s 1964 rock ballade, Oh Pretty Woman, after having been denied permission by the copyright holder, Acuff-Rose Music, Inc., to license the work. The resulting rap song, titled Pretty Woman, borrowed from Orbison’s distinctive opening guitar phrase and bass riff, mimicking each line of Orbison’s song, and replacing the original words with raunchy lyrics. In a unanimous decision by Justice Souter, the Supreme Court reversed the Sixth Circuit’s ruling against 2 Live Crew’s commercial parody, holding that parody is a form of “criticism or comment” enumerated in the preamble of Section 107. The Court emphasized that the four fair use factors are to be weighed together, in an equitable rule of reason analysis, “not in isolation from one another, in light of the purposes of copyright.”

In a sharp departure from precedent, the Supreme Court held in Campbell that commercial use is not dispositive of fair use. Campbell was also important in its clarification of the first factor of the fair use analysis (the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes), and recognized that transformative works are the “fair use doctrine’s guarantee of breathing space within the confines of copyright,” drawing from Judge Leval’s 1990 law review article. Addressing the unique issues present in copyright parody for the first time, the Court held that “parody, like other comment and criticism, may claim fair use,” as the central investigation is to see “whether the new work merely supercede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” In other words, is the second work transformative?

Blanch v. Koons

Cases decided after Campbell v. Acuff-Rose reflect the Supreme Court’s emphasis on a case-by-case analysis of fair use claims and the interactive nature of fair use factors. In particular, tranformativeness has gained significance in copyright fair use cases, whereas pre-Campbell, the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work” was given the most weight.

Blanch v. Koons involved the use by Koons of a copyrighted photograph, Silk Sandals, which was taken by professional fashion photographer Andrea Blanch for a spread in the August 2000 issue of Allure magazine. The photograph, which was taken at close range, featured a woman’s lower legs and feet adorned with bronze nail polish and glittery Gucci sandals, resting on a man’s lap in a first-class airplane cabin.

The Second Circuit determined that the goals of the two works were divergent – Blanch’s work was a “shoot” organized by Conde Nast Publications, while Koons’s collage was a work of fine art.

1. The court found that Koons’s work was clearly transformative and relied on Koons’s explanation of the meaning behind his art. Since the work was transformative, the commercial exploitation was deemed less significant.

2. Also, the transformative nature of the work made the second factor, the nature of the work, of “limited usefulness.”

3. Additionally, it reasoned that the amount and substantiality of Koons’s copying – the third factor – was reasonable considering Koons’s use for commentary.

4. Finally, as to the fourth factor, the court found that Koons’s painting had no deleterious effect on the potential market for or value of Blanch’s photo.

While the court in Blanch v. Koons ultimately held that there was a proper fair use defense for the use of the appropriated images, fair use analysis remains ambiguous and uncertain, as demonstrated in Cariou v. Prince, which I will discuss next.

Patrick Cariou v. Richard Prince, Gagosian Gallery, Inc., Lawrence Gagosian

Turning now to Cariou v. Prince. This highly significant case, which settled in March 2014, will no doubt have an impact on artists as well as dealers and exhibitors of art. First, some background. The plaintiff, Patrick Cariou, is a professional photographer who spent over six years photographing Rastafarians in Jamaica. In 2000, he published a book, entitled Yes Rasta that included portraits of Rastafarian individuals and the Jamaican landscape. Richard Prince is a highly successful artist, whose works have been exhibited at a number of museums. He is known for his re-photography of advertising and appropriating images from other artists’ works. From 2005 to 2008, Prince created a series of paintings, 29 of which incorporated partial or whole images from Yes Rasta. To create the series, Prince cut out pages from Cariou’s book, and scanned, enlarged, cropped, and covered them with heavy brush strokes and various other painterly elements.

Prince never sought or received permission from Cariou to use Cariou’s photographs. In some works, Prince used portions of torn pages onto which he had drawn masks “in the style of Picasso” and digitally scanned them directly onto canvas, and affixed collage elements to other images for scanning. The portions of Yes Rasta photographs used and the amount of each Prince artwork they constituted, varied significantly. Here are some examples. Certain of Prince’s works, such as Graduation, were altered but not to the same degree as others. In Djuana Barnes, Natalie Barney, Renee Vivien and Romaine Brooks take over at the Guanahani, for example, the entire photo is used but also “heavily obscured and altered.” From November 8 through December 20, 2008, the Gagosian Gallery in New York put on a show featuring 22 of Prince’s Canal Zone artworks, and published an exhibition catalog, which included reproductions of many of the Canal Zone artworks exhibited and others that were not shown at the Gallery.

Appellate Court Decision

Cariou filed a lawsuit in a New York federal district court, alleging copyright infringement, and Prince and Gagosian moved for summary judgment, asserting a fair use defense. In 2011, the court held in favor of Cariou. On appeal, in April 2013, the Second Circuit reversed in part, vacated in part and remanded, concluding that 25 of Prince’s artworks made fair use of Cariou’s copyrighted photos. The court began its analysis by considering at the purpose of copyright to stimulate the progress in the arts and found that copyright’s goal “would be better served by allowing the use than preventing it.”

First Factor

With regard to the first fair use factor, the Second Circuit chose not to focus on Prince’s explanation of his artwork or whether he was commenting or intending to comment on an original work or on culture. Instead, the court focused on Prince’s artworks themselves and how they might “reasonably be perceived.” Whereas Cariou presented “serene and deliberately composed portraits and landscape photographs depict[ing] the natural beauty of Rastafarians and their surrounding environs,” Prince’s offered “crude and jarring works” that were “hectic and provocative.”

Fourth Factor

Turning next to the fourth factor, the appellate court was concerned “not with whether the use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.” The court reasoned that the audiences for the two artists were very different. Moreover, there was no evidence that Prince’s work had any impact on Cariou’s work or that Cariou would ever develop or license secondary uses of his work in the vein of Prince’s work.

Second Factor

Concerning the second fair use factor, the court reasoned that while Cariou’s work is creative and published, weighing against fair use, that factor was of limited use where, as here, the secondary use was for a transformative purpose.

Third Factor

Finally, evaluating the third factor, the court found that Prince’s use of Cariou’s work varied from work to work. Here are a few examples of Canal Zone works that the Second Circuit deemed “transformative as a matter of law.”

Five Remanded Works

Five of Prince’s works, however – Graduation, Meditation, Canal Zone (2007), Canal Zone (2008) andCharlie Company – did not differ sufficiently for the Second Circuit to make a determination about their transformative use as a matter of law, and were remanded back to the district court for determination under the proper standard. Judge Wallace (9th Circuit by designation) concurred in part and dissented in part, agreeing with the majority on the law, but finding that the majority should have left the determination for all 30 works to the district court on remand. Moreover, citing precedent, Judge Wallace would have allowed the court to consider Prince’s statements, consisting of “his view of the purpose and effect of each of the individual [p]aintings” – as relevant to the transformativeness.

Further Proceedings

In May 2013, Cariou filed a petition for rehearing, which the Second Circuit denied. Cariou then petitioned the U.S. Supreme Court for certiorari, or discretionary review, hoping that the high court would hear the case. The Supreme Court denied cert. in November 2013. Ultimately, the parties reached a confidential settlement in March 2014 as to the five remanded works.

Conclusion

As the fair use doctrine indicates, and as the Supreme Court and lower courts have recognized, the fair use determination is an open-ended and context-sensitive inquiry. Therefore, it is impossible to predict with any degree of confidence the outcome of an individual case. No doubt one of the greatest challenges in art law in the coming years will be adapting copyright law to protect and encourage creativity in a culture of ever increasing referencing and appropriation.

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