SEPTEMBER 19, 2021
Martha Buskirk responds to Alex Weintraub’s “Picturing the Public Interest” (September 1, 2021):
I APPRECIATE ALEX Weintraub’s praise for a number of aspects of my recent book, Is It Ours?: Art, Copyright, and Public Interest. Yet much of Weintraub’s review reads as if the author is focused on the volume he wishes I had written (or perhaps plans to write himself) rather than on the one at hand. According to Weintraub, the book’s primary aim “is to consider when the legal protections accorded to art […] come at the expense of public interest.” Provisions specific to art are one thread, but I am equally concerned with how copyright conflicts involving works of art can help illuminate the broader stakes when intellectual property claims pervade all aspects of cultural exchange.
In a paragraph that questions the scope of the book’s art-historical and legal analyses, Weintraub asserts, “It would be difficult to overstate VARA’s centrality to the story that Buskirk wishes to tell.” Actually, it is possible to overstate, and Weintraub does. Not long after the Visual Artists Rights Act of 1990, known as VARA, became law I wrote about its significance and potential shortcomings in an article entitled “Moral Rights: First Step or False Start?” (Art in America, July 1991), and I have followed the subsequent case law, including a number of examples discussed in the book. But Weintraub seems more interested in something that the act doesn’t do, evident in his emphasis on draft language regarding resale royalties. Provisions for such payments, which are based on a percentage of the profit when a work of art is resold, were stripped out of the proposed bill before it became law. (And a small but nonetheless important point: VARA was not “the first American law to offer explicit protections for an author’s moral rights,” as Weintraub states. It was the first US federal law, since there were precedents at the state level.)
As part of his focus on VARA’s legislative history, Weintraub pounces on a passage where I relied on a New York Times summary of a 1986 congressional hearing regarding proposed artists’ rights legislation. But in his extended synopsis of Rosalind Krauss’s hearing statement, Weintraub fails to note Krauss’s acknowledgment that the law would not necessarily have prevented the posthumous mutilation of David Smith’s works, since that was done by executors of his estate. This is just one instance of problems that can arise when an artist’s heirs use their legal authority make decisions in the artist’s name — and I examine these challenges at length. More crucially, a significant aspect of Krauss’s statement concerned matters of fair use that did not figure in VARA’s initial or final language. In her advocacy for this exception to copyright designed to support criticism and commentary, Krauss condemned the impact of agencies that “enforce copyright and collect royalties for each reproduction,” extracting “large sums of money from the practitioners of the art discourse: the critics and scholars who are part of a cultural circulation of the work.” Krauss did in fact call on members of the legislative committee to address fair use for published reproductions, stating, “I urge the framers of this bill to add this small, but needed, protection.” Sadly that did not happen, and pressure to secure image rights remains a costly impediment to scholarship.
A particularly puzzling aspect of Weintraub’s discussion of the draft legislation is his apparent conflation of public funding for the arts with freedom from ownership claims once cultural material is no longer covered by copyright — a confusion that is embodied in his reference to a “paid public domain.” In addition, he places a high value on copyright registration. Such records can help facilitate identifying who holds copyright, but shorter copyright terms would do far more to uphold the public domain.
There are also a number of places where Weintraub indicates more divergence than actually exists between the perspective of the review and that of the book. I found it surprising that Weintraub used his own comparison between Richard Prince’s symbolic renunciation of his Ivanka Trump portrait and Cady Noland’s denunciation of a damaged work to make a claim about the shortcomings of my analyses, since I reference both examples over the course of extended discussions of each artist’s work. While Victor Hugo does not figure in my narrative, I do explore ways that lip service to a romantic conception of individual creation can function as a subterfuge to distract attention from mechanisms that prioritize ownership of intellectual property, including by collective or corporate entities. I am, moreover, in total agreement with Weintraub about the need for a robust public domain, though I give greater weight to the detrimental impact of copyright extensions.
In theory, copyrights and moral rights serve two different purposes, with the first centered on economic matters, and the second protecting integrity interests that transcend ownership. Yet there are constant problems with mission creep, since refusals to grant copyright permission are used to regulate or suppress discourse, and the power to establish what constitutes a work of art (exercised by artists and, more problematically, by heirs) can have profound market implications. The specialized dynamics of VARA are a fascinating topic. Yet questions highlighted by strategies of appropriation, including their demonstration of the importance and limitations of fair use provisions, are equally imperative, since they open onto the many forms of creative activity that can be curtailed by assertions of ownership over intellectual property of all kinds. Conflicts arising from excessive ownership claims, within the art world and beyond, underscore the public interest served by a vital cultural commons.
Alex Weintraub responds to Martha Buskirk:
I would like to thank Martha Buskirk for taking the time to respond to my review of her book, Is It Ours?: Art, Copyright, and Public Interest. I regret that she found aspects of my essay to be misleading. First, her letter suggests that I mischaracterized her aims by describing only one of the threads of her analysis. To the contrary, I explicitly praised her book’s impressive breadth as one of its chief strengths (e.g., a discussion of cell-line patents alongside a discussion of Brâncuși).
Second, my criticisms of Buskirk’s analysis of VARA concerned the substance of her interpretation, not its scope, particularly with respect to the testimony of Rosalind Krauss. I stand by my assessment. That being said, Buskirk’s point in her letter about David Smith’s work and Krauss’s testimony is well taken, but this is yet another reason why Is it Ours? would have benefited from engaging with Krauss’s actual commitments, rather than presenting readers with a distorting summary of her testimony taken from a secondary source.
Third, Buskirk is surprised that I brought up Richard Prince and Cady Noland as “[my] own comparison,” since these are two examples that are also examined in her book. I did not and do not claim this comparison to be my own. I offered them as instances of the activity of disclaiming one’s work, which I state that Buskirk has documented in Is it Ours?. Following the example of Victor Hugo, I suggested that both Prince’s and Noland’s acts of disclaiming are equally bogus. I suspect other critics will disagree.
I want to conclude by reiterating a point made in my review. I am confident that Buskirk’s book has opened up new avenues for future art historical engagement with legal studies, one example of which I tried to model in my analysis of Brancusi v. United States. Additional disputes over matters of fact and competing judgments are sure to arise, but such is the nature of art and law.
Martha Buskirk is professor of Art History and Criticism at Montserrat College of Art. In addition to her most recent book, Is It Ours? Art, Copyright, and Public Interest (University of California Press, 2021), she is author of The Contingent Object of Contemporary Art (MIT Press, 2003), Creative Enterprise: Contemporary Art between Museum and Marketplace (Bloomsbury, 2012), and numerous articles, anthology contributions, and catalog essays.
Alex Weintraub is an art historian and critic based in New York City. He earned his PhD from Columbia University’s Department of Art History and Archaeology.