SEPTEMBER 1, 2021
CRITICS AND JUDGES occasionally deliberate on the same question: Is this art? Historians of modern and contemporary art tend to take particular interest whenever these two groups disagree. It turns out, however, that the more historically significant cases may be those in which the critics and the courts come to consensus. Consider Brancusi v. United States, which was decided by the United States Customs Court on November 26, 1928. In 1926, the Romanian-born, Paris-based sculptor Constantin Brâncuși shipped a version of his cast bronze sculpture, Bird in Space, to the United States for exhibition. Upon arrival in early 1927, the work was inspected by a customs appraiser named F. J. H. Kracke, who recognized no art in Brâncuși’s abstraction, and so deemed it to be mere “merchandise.” Though Kracke did consult art experts to support his assessment, reports of the event at the time make it clear that his Customs Office was far from disinterested in the matter. A New York Times headline captured one unnamed agent’s indignation: “If that is Art, then I’m a bricklayer.”
Kracke’s old-fashioned taste surely would have gone unnoticed by the artworld had it not come with material consequences. US law allowed for the importation of works of fine art duty-free, whereas objects of practical use were taxed at a rate of up to 40 percent of their commercial value. Wishing to save money and defend his art’s status as such, Brâncuși decided to appeal the decision. The Customs Court ended up reversing Kracke’s judgment, and in so doing expanded the legal definition of sculpture to be inclusive of Modernist works like those by Brâncuși.
The Court’s ruling exemplifies what a good-faith encounter with unfamiliar art might look like. First, the judges offered a close formal description of the sculpture:
The importation appears to be a production in bronze about 4 1/2 feet high supported by a cylindrical base about 6 inches in diameter and 6 inches high. It is highly polished and burnished brass or bronze, symmetrically constructed with a top between 1 and 2 inches in diameter. It terminates at the top in a point which might be caused by the cutting of the piece diagonally across and upward until it terminates in an edge. It increases in size as it descends with a slight curve to the middle, from which point it decreases and terminates about 10 inches from the pedestal, where it is cylindrical, and from that point it increases in size in a conical shaped base which rests upon the pedestal.
Next, they moved from form to content:
The piece is characterized, as stated above, as a bird. Without the exercise of rather a vivid imagination it bears no resemblance to a bird except, perchance, with such imagination it may be likened to the shape of the body of a bird. It has neither head nor feet nor feathers portrayed in the piece. As stated above, it is entirely smooth on its exterior, which is a polished and burnished surface.
On this point of non-resemblance, the Court found itself in strong agreement with Britain’s foremost formalist critic, Clive Bell. Writing for Vanity Fair in 1926, Bell dismissed what he deemed to be vulgar criticisms of Brâncuși’s art, which disparaged his works for not looking like the objects they had taken for their titles.
[Brâncuși] maintains that to him these names are not irrelevant and that his forms express his sense of the very essence of a bird or a woman. There, I cannot follow him always. Sometimes, I think he does express with miraculous subtlety his sense of a movement, which, however, is different from expressing his sense of the thing that moves.
This was also the Court’s opinion, which found that Bird in Space was an original work of art, even if earlier legal definitions of the medium of sculpture might not have accommodated its slick abstractness. “It is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental,” the Court ruled. Bird in Space could migrate duty-free.
While the Customs Court and Bell had both declared Brâncuși’s art to be genuine art, the comparison between both texts makes clear that seemingly identical jurisprudential activities can mean different things in different contexts. We don’t always have the same reasons for passing the same judgments of art. The Court, for instance, insisted that its judgment of art was different from its judgments of taste — note its concluding sensitivity to Brâncuși’s formal refinement. Judges were obliged to designate his Bird as art “[w]hether or not we are in sympathy with these newer ideas and the schools which represent them.” For Bell, by contrast, aesthetic judgments and judgments of art functioned as an insoluble pair. Put differently, the Court’s critical work was exhausted in its determination of Bird’s artful status because its reasons for judging the object was to facilitate its real movements in space, while the critic’s work had only just begun. Bell was next obliged to evaluate the historical significance and meanings of the work’s represented movements.
Readers will find a brief discussion of Brancusi v. United States in Martha Buskirk’s new study of contemporary art and intellectual property law, Is It Ours?: Art, Copyright, and Pubic Interest. Rather than compare the Customs Court ruling with the writings of a professional art critic, Buskirk considers the case alongside subsequent art-customs entanglements. Apparently, agents have since been reluctant to confer art status on sculptural works by Claes Oldenburg and Dan Flavin as well. These cases may appear to exist at something of a remove from the central concerns announced in the subtitle of Buskirk’s book, since they have no immediate bearing on a work’s copyright or its ownership. (Even if Bird in Space were to have been treated as an article of manufacture, its author still could have been entitled to intellectual property protections.) What’s more, Buskirk makes no connection between these particular cases and broader issues of public interest, beyond, we might suppose, the public interest taken in debates over art’s definitions. Instead, Brancusi v. United States belongs in Buskirk’s book as a newsworthy instance of legal misrecognition and of the paradoxical valuations that often ensue when innovative works of modern and contemporary art are made to appear before the law. A customs agent first denies a work of art to be art, and then goes on to appraise the object based on values determined by the art market.
Buskirk’s aim throughout Is It Ours? is to consider when the legal protections accorded to art — which tend to uphold that works of art possess unique cultural and moral values distinct from other commodities — come at the expense of public interest. In her efforts to encourage critical interrogation of issues pertaining to contemporary art, non-traditional aesthetics, and Intellectual Property (IP) law, Buskirk undoubtedly succeeds. Readers will come to consider, for instance, how copyright protections for public monuments may lead to troubling restrictions on the public’s right of panorama; how a famous appropriation artist’s advocacy for fair use conflicts with his own denials of reproduction rights for curators interested in historicizing his apparently embarrassing juvenilia; how heirs of avant-gardists weaponize their inherited author’s rights in order to safeguard and profit from works of art originally intended for open interpretation.
Additionally, Buskirk explores the current state of IP law, mostly in the United States, as it pertains to tattoo art, decommissioned art, site-specific art, and graffiti art (the latter of which is a true highlight of her book). She even manages to touch upon the politically contentious legal battles that have been fought over cell-line patents, which concern whether or not an individual is entitled to take property in articles derived from his own person, should he discover that his doctors have developed lucrative IP from samples of his extracted cancerous tissue. As should be clear, Is It Ours? covers a fascinating range of topics, and Buskirk demonstrates the wisdom of approaching matters of art and IP just as courts do: on a case-by-case basis.
Nevertheless, Is It Ours? proves rather superficial in its analyses of copyright, be it from a legal or an art historical perspective. Nowhere is this more apparent than in Buskirk’s discussion of the Visual Artists Rights Act of 1990 (VARA), perhaps the single most important piece of American copyright legislation that specifically addresses the visual arts. VARA was also the first American law to offer explicit protections for an author’s moral rights, a category that includes the right of attribution (an artist’s right to be attributed as the author of her work), the right of divulgation (an artist’s right to decide when and if her work is to be published), and the right of integrity (an artist’s right to prevent “distortion, mutilation, or modification” of her work even after sale). It would be difficult to overstate VARA’s centrality to the story that Buskirk wishes to tell. Not only does her book focus primarily on the visual arts and pay closest attention to the American legal context, but it also raises its most serious ethical and political questions expressly in terms of moral rights. After all, these non-economic rights result in legal protections for works of art that are unlike those offered to copyrightable non-art. They are retained even after a transfer of ownership.
Buskirk is especially interested in weighing the costs and benefits of VARA’s right of integrity. She writes, “Attempts to prevent willful destruction or mutilation of significant works of art are easy to support. Yet granting rights to one party generally means curtailing actions by others, as legal scholar Amy Adler has outlined in a trenchant analysis of moral rights protections.” These are, of course, legitimate concerns, and fellow art historians and critics ought to follow Buskirk’s example by taking seriously Adler’s line of argumentation in her law review article “Against Moral Rights.” In it, Adler makes a strong case for “free[ing] the work from the shackles of the artist” in the name of public interest, and she even argues that there can be “value in modifying or even destroying the original artwork itself, not just the copy.”
Adler knows that this latter point will strike many art historians, critics, and lovers as extreme. Not only is it extreme, but it also depends upon some questionable interpretations of art historical evidence that one wishes Buskirk had approached with the same vigor as she does case law. Specifically, that the two concrete examples that “Against Moral Rights” recruits in order to justify its claims for the public interest value that might be gained by granting license to modify or destroy original works of art do no such thing.
First, Adler looks at an example of artists who created new works of art through the defacement of a posthumous edition of prints by Francisco de Goya (which they had acquired on the up and up); and second, she examines Robert Rauschenberg’s well-known work, Erased de Kooning Drawing of 1953, in which the Neo-Dada artist received permission from de Kooning to erase a drawing still in the Ab-Ex painter’s possession. The transformed Goya prints are inapplicable to Adler’s thesis because they were posthumous impressions taken from unmodified plates that had been originally etched by Goya. The prints (original copies) were defaced, not the plates. This is the visual arts analogue to someone defacing a valuable second edition of a historically significant novel. The act may scandalize a bibliophile, but it hardly represents an act as grave as destroying the text’s original manuscript. The work and other impressions of it still exist intact. Moreover, the defaced Goya prints were never illegitimately treated as if they were still Goya’s works, which, as we will see, was the more pressing integrity concern at issue at the time of VARA’s passage. We can, therefore, agree with Adler’s view that such behavior may, indeed, be publicly meaningful and ought to be permitted, while still maintaining our belief in the right of integrity. All it would require is that we refuse to recognize the defacements as still belonging to Goya’s oeuvre, as opposed to someone else’s. The prints simply became the costly physical supports for another person’s art.
Rauschenberg’s erasure offers even weaker support for a critique of integrity rights, since the gesture would have likely posed no substantive conflict with VARA. De Kooning granted his permission for Rauschenberg to erase a drawing that was still in his private possession. Moral rights are sometimes controversial with respect to public interest because they are retained by authors even after a work’s publication or transfer of sale. Owners of printed books are permitted to mark up their texts however they choose and then still to offer them up for resale as the same work, while painters have the right to ensure that their pictures are spared similar modifications after sale, especially in cases where their owners still plan to display or to sell the art in the artist’s name. Curiously, Adler’s analysis of this particular work of erasure also implicitly calls into question her underlying suggestion that by giving up on integrity rights, we would finally be liberated from the supposed chokehold of authorial intention, since she herself utilizes quotes from Rauschenberg in order to give credence to her interpretation of his anti-drawing. The true irony of Erased de Kooning Drawing is that its ostensible act of defacement abided by all the rules.
Of course, Buskirk is perfectly entitled to her full endorsement of Adler’s critique, but this should not come at the expense of her providing readers with an accurate history of the Visual Artists Rights Act, which went through several drafts and modifications before its passage in 1990. Instead, she ends up distorting the facts by mischaracterizing the views of one influential art historian — Rosalind Krauss — who testified during the congressional public hearings that were held in 1986. She writes:
[A]t the 1986 meeting [Krauss] criticized the proposed legislation on the grounds of its potential threat to publishing for magazines and scholars faced with paying royalties for reproductions. […] Krauss’s longtime commitment to fair use was therefore at odds with giving artists the ability to control many aspects of a work’s future contextualization, including where it is reproduced.
A summary reading of the hearing transcript proves this description to be patently false.
Krauss did speak at the 1986 hearing, which was convened by Senator Edward Kennedy, one of the driving legislative forces behind early drafts of VARA, but she did so as an advocate, not a critic. Her support for the amendment stemmed from her prior scholarly experiences working on the catalogue raisonné for the abstract sculptor, David Smith, several of whose unfinished polychrome works had been posthumously stripped of paint, a perfect example of an action against which rights of integrity are meant to safeguard. (As an aside, it is worth mentioning that for historians of modern art like Buskirk, Krauss’s advocacy should really come as no surprise given her highly publicized and sharply barbed criticisms of those men responsible for modifying Smith’s sculptures, including the arch-modernist critic, Clement Greenberg.) Now, it is true, as Buskirk suggests, that Krauss did express her wish to “amend the existing Fair Use Doctrine to include works of art reproduced for critical or scholarly purposes,” but she conceded that this concern, however “conceptually” close, was “tangential to the present legislation as framed.” Thus, while she attempted to convey to Congress the potentially chilling effects that royalty policies for image reproductions might have on art historical scholarship and art criticism, she in no way meant to criticize the draft of VARA under discussion; and, anyway, the amendment’s royalty policies concerned rights of resale, not of reproduction.
Krauss’s testimony offers an extraordinary instance of art historical civic-mindedness, and so it is worth quoting at some length, beyond the need to set the record straight:
My support for the present bill, particularly its copyright provision, derives from my wholehearted agreement with the logic behind fine arts legislation. That logic, we could say, is a determination to create an exception to the principle of private property, by allowing an artist to sell an object, yet retain aesthetic control over it. A determination which is in turn undergirded by the idea that art transcends the condition of other physical objects because it is somehow the property of a culture. It is our heritage, our patrimony, and its condition is not to be left in the hands of a single owner who, under the terms of private property might change it, cut it up, throw it away, or whatever.
To be sure, I do not believe that Buskirk has willfully misrepresented Krauss’s testimony. Rather, her book dutifully reports the misleading contents of a New York Times article, which she appears to have consulted and cited, instead.
Had Buskirk considered the actual congressional hearing transcript, she would have learned that Senator Kennedy’s proposed amendment included concrete provisions that justify Krauss’s endorsement. Indeed, she would have learned that VARA’s royalties policy (the purported target of Krauss’s alleged critique) were originally drafted with the public interest in mind. Consider first the language of the amendment itself: “S. 2796, a bill to amend the copyright law to secure the rights of artists of pictorial, graphic, or sculptural works to prevent the distortion, mutilation, or other alteration of such works, to provide for resale royalties, and for other purposes.” What are these other purposes and how do they relate to an artist’s right to royalties from resales?
Prior to VARA, relatively few visual artists in the United States bothered to register their works officially with the Copyright Office because “of the accompanying requirement that a formal copyright notice be physically displayed on their work.” Senator Kennedy wished to get rid of this impediment, and also to incentivize more widespread registration of visual works by making their deposit a formal precondition for an artist’s future receipt of royalties following their work’s resale. These royalties would, in turn, help to foster a paid public domain, which had been a long-held, but rarely achieved, dream of progressive author’s rights activists since the middle of the 19th century. “Where the artist is deceased at the time of the sale, and the sale occurs within fifty years after the death of the artist, such royalty shall be paid to the National Endowment for the Arts for use in the visual arts program.” In other words, the bill initially intended for artists and the American public to benefit from the increasingly exorbitant prices that works of contemporary art might command when resold on the secondary market.
Ultimately, this particular provision was eliminated from the final text of VARA that was passed in 1990. Senator Kennedy thus experienced disappointments similar to those of earlier champions of author’s moral rights and of a paid public domain, such as the novelist Victor Hugo. One might forgive Buskirk’s inattention to these since discarded, controversial provisions were it not for her book’s historical approach to IP. In the longer history of copyright, the topic of registration has often been a key component of IP law’s anticipated capacity to serve in the public interest. How else were works meant to pass into the public domain in a pre-digital era of paperwork if they had never been deposited anywhere?
In Revolutionary France, for instance, the first intellectual property statute, known as droit d’auteur, was codified in 1793, and it similarly sought to encourage the registration of authored works with the national dêpot, the French National Library, by making the filing of certain copyright claims contingent upon a work’s deposit with the state. Like the Louvre Museum, which opened to the public in the same year as this IP law’s passage, the French National Library was a product of the Revolution’s nationalization of previously royal property, both literary and artistic. The Cabinet du Roi (the King’s print collection) transformed into the Library’s Department of Prints and Drawings, which in turn sought to ensure that citizens of the fledgling French Republic would enjoy access to a robust pictorial public domain.
The Department’s administrators dreamed big, hoping to assemble a complete collection of pictures, a goal which would require the regular deposit of any and every new work of pictorial art in order to be realized. (Unsurprisingly, this never really happened.) Also like the Louvre, the Library’s collection of prints soon helped to sustain 19th-century France’s unmatched artistic culture by providing open access to pictorial patrimony. Prints were, of course, much easier to hold in multiple than were grand format paintings. Consequently, they were also much easier to loan out or to disseminate to satellite library branches well beyond the French art capital. Even before a picture’s copyright term had ended and a work officially entered into the public domain, its registration with the Library still meant that a picture would conceivably be capable of serving the public interest.
The French National Library has been uniquely ambitious in its commitment to the collection and presentation of works of fine art, but its civic function was also shared by various sister institutions, including the British Library and the US Library of Congress. None receive any mention in Is It Ours?, which is a shame since their employees have actually attempted to answer Buskirk’s titular question in the affirmative. They continue to do so.
When Buskirk does address the history of copyright law, she tends to revert to clichés. For example, we are told several times that IP law remains stuck in the thrall of a romantic conception of individual authorship, which bien pensant readers are expected to dismiss as naïve following the post-structuralist critiques of Roland Barthes, Michel Foucault, and Jacques Derrida, all of whom receive obligatory nods. This claim is odd for a number of reasons. First, it overlooks contemporary copyright law’s amenability to collective forms of authorship, including some fairly unromantic “work-for-hire” arrangements excluded from VARA protections, which allow for corporations to be recognized as the rightful copyright holders for works created by authors in their employ.
In the visual arts context, this point was already made several decades ago by Molly Nesbit in a pathbreaking article cited by Buskirk, but the field of Film Studies has also generated a wealth of scholarship demonstrating the difference between traditional auteurist ideals and corporate realities of cinematic authorship. Second, and more importantly, many copyright scholars, several of whom are also cited by Buskirk herself, have sought to challenge the presumed historical connection between modern copyright and Romanticism. To offer just one example, Buskirk devotes several paragraphs to summarizing an article about the philosopher Johann Gottlieb Fichte and reprinting rights written by legal scholar Mario Biagioli, in which Biagioli contends in the very first pages that “the kind of creativity attributed to [the Romantic author] can in fact easily undermine the very notion of property it is deemed to have established.”
In support of Biagioli’s thesis, Victor Hugo deserves another mention. Hugo was, of course, a leading French Romantic; he was also accused of endorsing communism for his efforts to disinherit author’s heirs (at least in part) and also to utilize collected royalties from posthumous works to make the cultural sphere more accessible to everyone. (Ironically, the Hugo estate has since come to endorse copyright provisions likely at odds with the author’s own beliefs.) Hugo also offered his own fascinating answer to the organizing question of Is It Ours?: “The writer’s thought,” he wrote, “at least as much as it is a thought, escapes from any entity that might wish to seize it; it migrates from soul to soul; it has this gift and this power — virum volitare per ora [to spread through the mouths of men].” In other words, Hugo, not unlike Fichte, wished for copyright law to recognize the difference between what someone means and what someone owns.
The author of Les Misérables was not always so progressive in his outlook. In his youth, he considered himself to be a Legitimist, which meant that he believed that the only true sovereign rulers of France were members of the primary Bourbon dynastic line. Decades after he changed his mind and converted to a liberal philosophy of “art for progress’s sake,” Hugo publicly refused to disclaim his authorship of his earlier reactionary embarrassments, which, as Buskirk documents, has become an increasingly common practice among contemporary artists.
Richard Prince, for example, recently disavowed his appropriated Instagram portrait of Ivanka Trump as a fake following her father’s election in 2016. He meant for this gesture to count as an act of #resistance, but Hugo would have dismissed Prince’s antics as a rature de conscience — or, in Krauss’s words, an erasure of belief. If current moral rights provisions really do legitimate and encourage such behavior, then scholars and critics of art must publicly insist that such maneuvers are historically void. (Luckily, the real history of Prince’s work can’t be stripped so easily from his Ivanka portrait, since his comments as an Instagram user are still included in the screenshot that he used as the basis for his composition.)
One wishes that Buskirk had done more to weigh these differences between an artist’s rights and an artist’s responsibilities, especially given that art critics have been quick to praise similar acts of renunciation by Cady Noland as if they were a genuine form of avant-garde praxis. They are nothing of the kind. While there is a perfectly compelling rationale for disclaiming authorship of a work of art that has been changed so that it is no longer matches an artist’s meaning, it is craven to disclaim one’s authorship of a work simply because one wishes to alter its significance or value retroactively. Prince’s Ivanka work means nothing more and nothing less than it did when it was first created, which is to say that it still means nothing much at all.
In spite of these criticisms, I am confident that Is It Ours? will open up new avenues for art historical and humanistic engagement with intellectual property law, as did earlier work by art historians like Nesbit, Joan Kee, and, most recently, Katie Scott. This will, however, require that Buskirk’s readers delve deeper into the topics and texts that her book only begins to survey.
In that spirt, I want to conclude by returning once more to the case of Brancusi v. United States. It is easy for art historians to overlook the activities of customs agents until they are found to be standing in art’s way. After reading Is It Ours?, I am convinced that this is an oversight. For once we learn that art critics and the Customs Court came to agree to accept Brâncuși’s art as art, there still remains a crucial lingering question. Why should a successful judgment of art justify a work’s exemption from import taxes? On what basis, in other words, did artists and art collectors merit relief from protectionist tariffs, which would have otherwise been imposed upon the work of bricklayers?
It turns out that the specific regulations at issue in the Brâncuși case — those that maintained a legal distinction between cast-bronze statuary and ordinary articles of manufacture — were fairly recent developments in the history of US customs law. During the first decade of the 20th century, a group of influential free trade art activists, the American Free Art League, successfully lobbied for art’s tax exemption. Former Harvard University president Charles W. Eliot summarized the League’s position as follows:
A tax on works of art is a tax on the education and development of the sense of beauty and of the enjoyment of the beautiful. The appreciation of the beautiful is a rich source of public happiness, and the ultimate object of all government is to promote public happiness. Therefore, a tax on works of art violates the fundamental principles of democracy which believes in universal education, and in all other means of increasing mental and bodily efficiency, and the resulting public and individual enjoyments.
By adopting the very same critical approach that Buskirk has attempted with respect to moral rights, we may discover that art’s tax exemption could similarly lead to unintended consequences by creating incentives for private investment in art at the expense of the public interest, in this case in the form tax revenue. Whether a work of art is genuinely deserving of its duty-free status may ultimately depend upon its intended destination. If the work is destined for a public art museum or a public plaza or a university study collection, we will likely find ourselves to be in perfect sympathy with the law’s encouragement of art’s economical comings and goings. (Fortunately, the version of Brâncuși’s Bird in Space that landed on the docket of the US Customs Court has since entered into the collection of the Seattle Art Museum, where viewers can judge for themselves whether it counts as a genuine work of sculpture.)
But what if the art in question was really just an investment vehicle, destined for the inside of some temperature-controlled storage facility in the middle of nowhere, to be kept out of sight until the economic conditions were ripe for its profitable resale on the secondary market? Under the first description, Brancusi v. United States tells the happy story of modernism’s incremental legitimation and its integration into public culture writ large. Under the second, Brancusi v. United States would open onto an alternative history of the mercenary interests that have since been taken in art’s rarefied legal status. Buskirk calls for her readers “to campaign for curtailing excessive [copyright] duration, reducing inequalities based on access to legal support, and an expansive definition of fair use.” To this list, I would also add that we consider enacting new redistributive provisions, which could begin to account for the vast inequalities that are currently held in art, such as the one already drafted in a 1986 version of the Visual Artists Rights Act.