Tag: Warhol

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A Breakdown in Appropriation

A New View on Using Copyrighted Images

By MICHAEL MCCULLOUGH          April 30, 2013

When a Federal court scratches its head about how to regulate the art market, get ready for total baldness as you start tearing out your hair. Last week, a Federal Appeals Court in New York issued one of the daftest opinions of recent memory in the copyright infringement case against Richard Prince. As you read the decision you get a sense that the court not only misunderstands the art market completely but that it lost track of what the copyright law was meant to protect. If the decision is not overruled by the Supreme Court then the case will certainly change the way artists use appropriated images.

I don’t think the judges ever thought to consider the difference between artistic and commercial achievements in the art market, a common problem in our larger society. And you can see this coming from a mile away when they cart out the Great White Father, himself, as the poster boy for 20th century expressionism. They describe Warhol’s work, incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, as commentary on consumer culture and exploring the relationship between celebrity culture and advertising. The first error in this reasoning is that it’s Duchamp and not Warhol who sets the standard for artistic expression in the 20th century. The court forgets that appropriation, at its core, is a philosophical inquiry into a person’s relationship with the material world and not a psychological tour of the various artists’ and patrons contributing to the dialogue. Furthermore, Warhol’s appropriations were largely of images already commercialized, as his intent was to comment on a commercial, consumer society; since the images had been put into the commerce to promote products or people, the people who owned those copyrights were happy for Warhol to exploit them. During his lifetime, Warhol retained the copyright to his own artworks and never addressed the issue of any rights of the Campbell Soup Company. It’s interesting how the court completely misses that Warhol’s use of Campbell’s copyright was certainly a copyright violation in 1962. Warhol never sought permission from the Campbell Soup Company to paint their soup cans, but, then again, the company viewed his use of their copyright as amusing, expressive, and confirming the status of their tasty soup in American culture. All of this is aside from the fact that it was free advertising for Campbell’s, something no marketing department would balk at. It was only after Warhol’s death, when the Andy Warhol Foundation began making licensing agreements with various manufacturers to use Warhol’s imagery on products, that there was an official legal agreement between the Andy Warhol Foundation and Campbell Soup Company. Presently, both parties own a stake in the copyright and neither party can make licensing agreements without the other party’s permission.

I won’t even begin to address Warhol’s use of celebrity images, as that discussion could take volumes to complete. Suffice it to say that most, if not all, of Warhol’s celebrity subjects would have happily given their and their photographers’ copyrights in those images in exchange for Warhol’s endorsement of their iconic status. The fact that the court made no distinction between Warhol’s use of consumer products and his use of celebrity imagery is another sign of something gone awry.

In contradistinction, the photographs done by Cariou and appropriated by Prince were not put into the consumer culture in any comparable way to the images appropriated by Warhol. Again, the court misses the idea that Warhol’s use of images certainly violated copyrights at the time; it’s just that the owners didn’t object because they already had the iconic status that Warhol was commenting on, so the use offered no harm to them. In contrast, Prince’s use of Cariou’s images does nothing for Cariou and allows Prince to exploit Cariou’s work in a way the copyright law was meant to dissuade. And here’s another comparison that is telling: Warhol only sold five of his 32 soup can paintings at the opening show in 1962 for a hundred dollars each. On the other hand, some of Prince’s paintings and collages in the Canal Zone series sold for over one million dollars. Could the court have considered the economic exploitation as a factor in whether Prince’s use was a “fair use”?

The answer is yes, but they decided not to. The Copyright Law of 1976 allows a court to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” This part of the law is meant to favor nonprofit uses over commercial uses, but within the realm of permissible commercial uses the court could have considered the commercial exploitation of Cariou’s photographs. Instead, they decided that since Prince’s works were “transformative” they were not going to “place much significance” on the fact that the use was commercial. In essence, the commercial versus nonprofit distinction has been abandoned.

The court also said that Prince’s work needn’t comment on Cariou’s images or on aspects of popular culture closely associated with the images, as the law does not require the secondary use to comment on the original artist or work, or on popular culture. They found that twenty five of Prince’s artworks make fair use Cariou’s copyrighted photographs because they are “transformative.” The other five works were sent back to the lower court for a decision based upon the courts new standard.

Now that an artist need not justify the secondary use with some specific commentary or criticism, the new work must only alter the original with “new expression, meaning, or message” to qualify as a fair use. In that regard, Judge Barrington Parker, Jr. wrote, “[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”

Of course, the “reasonable observer” in the final analysis will be a judge, so it will be difficult for an artist to make any decisions about employing fair use without the aid of a lawyer. And that- the need to have a lawyer in the artist’s studio passing judgment on the work- might just mark the end of appropriation art as we know it.

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The Economics of Art

By MICHAEL MCCULLOUGH          March 28, 2013

From the Soft to the Nonexistent Middle Market

Andy Warhol is quoted as saying “[a]n artist is someone who produces things that people don’t need to have but that he – for some reason – thinks it would be a good idea to give them.” I don’t know if this is an accurate quote, but it does touch upon some important concepts in today’s art market. What made Warhol so brilliant was his understanding of how surplus capital in an economy enables an artist to make a business out of giving people things they don’t need. And underlying this notion of serving a nonexistent demand is the truism that selling art is even more of a game than making it.

For gallerists who don’t understand this concept, the art market has become a difficult place to do business. For the past six years, those selling in the middle market have found it difficult to find buyers for low and medium priced works. This is not generally true for larger galleries who report strong sales in higher priced works. Many people have contemplated the motivations of buyers at the high end of the art market, as opposed to the more important question of what makes this type of market possible in the first place.

The difficulty of thinking about art as a commodity is that the supply side of the equation works differently in the art market when compared to other industries. In most markets, the supply fluctuates- both up and down- based upon the capacity of producers to meet demand; if demand falls then producers cut production. In contradistinction, artists give art to the world out of their need for expression, something necessary for their survival; most artists would continue creating art regardless of whether anyone purchased their work. In essence, the production side of the art market might be constrained when there is excess demand, but production would exist in some form or another even if there were no demand at all.

Consequently, the gallerist has to act as the regulator of supply, releasing works to the market in order to manage demand. And the better the gallerist is at creating demand and regulating supply, the more successful the gallerist will be. This might sound like market manipulation, and it is, but you have to remember that the supply side of the art market works differently than other markets.

Think for a moment about the most quintessential of American purchases: the automobile. Americans not only adore their cars, but need them in order to function in society. Except for in a few major cities, it’s not possible to live and work in the United States without a car. Necessity drives car purchases in the first instance, and vanity only enters the picture when you consider all the extras that you really don’t need but might desire anyway. Americans don’t buy art in the same way they buy automobiles. As Warhol points out, art is not a necessity for most people; it’s a luxury or, as some people in the art market like to call it, a “vanity” purchase. Most American homes are devoid of original artwork, especially of a quality recognized by art critics as important art.

I should add that none of this analysis reflects upon the art itself. Yes, art can be uplifting, and it can make us think about the world in a different way, and our cars can’t do that. And, yes, artists play a very important role in our society. But that role is not a function of the market. This is the crucial point. People pay large sums of money for artwork because they want to own, and thereby control, the dissemination of the artists’ output. Collectors want to be associated with a certain works of art because it either suits their aesthetic needs or it somehow reflects their style or philosophy. These are individual tastes and motivations not easily quantified in a market-type analysis. This is why it’s so difficult to predict trends in the art market because only the top gallerists and major collectors are in a position to understand them.

The only constant assumption in art market is that art is purchased with excess capital. Throughout history and in all economic systems- from Ancient Egypt to the Qing Dynasty China- a surplus of capital in an economy is necessary in order for the arts to flourish. Steadily since the end of the Second World War, industry in the United States has produced surplus capital and those surpluses have to be expended somehow. The first task was to build roads, then it was about creating great achievements in science and last came the focus on the arts. In any society, when the wealthy have amassed sufficient wealth, they have time to spend it on other things: in their pastime, the wealthy become art lovers.

Currently, we have the greatest disparity ever between the wealthy and the middle class in the United States and, indeed, throughout the world. In consequence of this, successful artists don’t pander to the bourgeois tastes of the middle class. Today’s art is big, bold and expensive. And in the great cities of our world dwell the wealthy art collectors who worship this aesthetic.

It comes as no surprise that Jeff Koons was a commodity broker on Wall Street for six years before making it as an artist. He, like Warhol before him, seems to understand the nature of markets and the needs of surplus capital. Some people might wonder if a giant, metallic-blue balloon dog is worth $5 million, not realizing how ridiculous the question sounds. You really shouldn’t expect a serious answer to such a dull question. These inquiries originate from people who neither have the money to buy art nor the imagination to apprehend why somebody else would. And you don’t have to be a genius to understand this concept; my father, who is neither an economist nor philosopher, told me as a child that “something is worth whatever somebody is willing to pay for it. Period.”

All of this might sound cynical but it’s really not. For at least the last century, the dominant world view among artist and intellectuals has been materialism, wherein art has become a game by which people distract themselves from the meaningless of life. The great detraction of materialism is the dullness and pointlessness of things, thus the search for happiness, beauty and wisdom becomes ever more important. People acquire certain artwork because they believe it reflects who they are or who they would like to be, and then everybody who visits their apartment or house can see them on view. And the more art they buy of a certain artist or genre, the more they are invited to exclusive events and the more access they have to the art. Thereafter, they are recognized by the market as an important collector, and the literati toady them immediately for the need of something to write about. Have you noticed how newspapers are now filled with editorials and lifestyle pieces, only because they are cheaper to write than hard journalism?

None of these trends in the art market are likely to change anytime soon. Then again, very few people stand to benefit from them.

Categories: Art, News – Posted on

A Crisis of Confidence?

By MICHAEL MCCULLOUGH          March 14, 2013

The Economics of Authenticating Art

In April of last year, I attended a gathering where Michael Straus of the Andy Warhol Foundation spoke about the foundation’s then recent decision to stop authenticating works by Andy Warhol. It was interesting to hear him say that part of the reason for the decision was the foundation’s confidence that the market for Warhol’s works “can take care of itself.” What this means in practical terms is that galleries, auctioneers and collectors can make their own determinations about the authenticity of a Warhol work when they decide to sell or purchase. Having worked in the art market for a decade and a half now, I’m sure the art market can take care of itself but the problem is that it really doesn’t want to.

Galleries and auctioneers rely on art experts’ opinions because it gives them cover to offer guarantees of authenticity to buyers. Only the criminally insane- though there are some out there buying- would spend millions of dollars on an artwork without some form of an authenticity guarantee. Therefore, if I own an artwork and want to sell it, I must have “the” expert on the artist bless the work; if they don’t then my artwork is practically worthless. To make this more complicated, sometimes the expert doesn’t say “no,” but determines that there is not enough information to form an opinion, which amounts to a vote of no confidence. And if I want to dispute the expert’s “no” or “no confidence” determination then I have to find not one, but two recognized experts who are willing to state that the work is authentic. The net result is that it’s difficult- if not impossible- to contest “the” expert’s authenticity determination. Moreover, sometimes it is the case that there is only one recognized expert for a certain artist’s works. The response of lately by collectors has been to bring lawsuits against “the” experts under various legal notions such as negligence, fraud, antitrust violations, and any other theory their lawyers can conceive. In consequence of this, many of the authentication boards for major artists will no longer authenticate works because too many of them have been sued by unhappy collectors.

What do we say when we want to cast doubt on a long-standing tradition that has ceased to produce useful results? We begin by saying tentatively, “Well, it’s not exactly written in stone.” Authenticity opinions were never meant to be written in stone in the first place, so it was quite predictable that the art market would be faced with this problem. Prices for highly coveted artworks have increased exponentially while the ability of collectors to authenticate those works has remained stagnant. What has changed is that collectors are no longer satisfied with their options.

Several years ago, I saw a cartoon of two art experts looking at a painting by the artist Peter Doig. One expert said to the other, “I’m certain it’s a Doig.” The other expert responds, “I think it might be a cat.” While a great deal of experience and thought might go into an expert’s decision about authenticity, in the end it’s only an opinion along the lines of “Doig” or “cat” at that particular moment in time. That is to say, the experts are offering galleries and auctioneers the ability to avow authenticity subject to future reconsideration while the economic demands placed upon collectors call for assurances on a longer continuum.

As a general tenet of life, people are created equal but opinions are not. When you receive an opinion from a doctor about your health you expect you can rely on it; we know that not every aspect of human body is if fully understood, but we at least expect to be given the variables and a prognosis of the disease. On the other hand, when a stockbroker tells you that a certain stock is a “must buy,” then you should run for the hills because you know something else is coming your way. Experience in life teaches us whom we should trust.

It shouldn’t be a surprise to anyone that art experts’ opinions are rarely meant to be final decisions. Scholarship, they will tell you, changes based upon new information discovered from time to time about artists’ techniques and materials, and new works are found that add to their knowledge of the artist’s oeuvre. An opinion about an artwork is more akin to who will win the World Series this year- it will be a choice of one of two, but no more can be said for certain at this time.

Unavoidably, this is exactly how the courts have treated art experts’ opinions; without exception, all of the lawsuits against art experts over the past several years have failed miserably. Judges and juries are in no position to gauge the authenticity of artwork, so they rely on the trusted experts. The Warhol Foundation was sued twice in the last few years and won both cases, though that smile on the courthouse steps probably cost them several million dollars. This means, practically speaking, that the authenticity quandary is more of an economic problem than a crisis of confidence. A much better reading of the situation would gather that art experts are not being compensated at an appropriate level. Think about other trades where people offer their opinions as a paid service: the credit rating agencies in the financial industry have been subject to vicious lawsuits- and probably justifiably- over the past few years and we don’t see any of those companies getting out of the credit rating business. Why? Because credit rating agencies make barge-loads of money every day- paid for by the very financial institutions that rely on their opinions to sell their wares. Does this sound familiar? If art experts were compensated in the same manner as credit rating agencies then the art market would not be having this debate. The Warhol Foundation should charge five percent of the fair market value of a work in order to authenticate it, and I suspect they would willingly withstand the judicial activism directed at them by any disgruntled patrons.

Just today, I came across another cartoon of two art experts standing in a gallery looking at a taxidermy wolf covered in a sheepskin pelt and enclosed in a glass case. One expert said to the other, “I’m afraid it’s a fake.” How very appropriate.