By Madelyn Domek

A lawsuit filed by artist Deborah Roberts against artist Lynthia Edwards and Richard Beavers Gallery in August of 2022 for “willful copyright infringement” raises the question of how artists working from the same cultural tradition can create innovative works. After Roberts denied Richard Beavers Gallery in displaying her work, the gallery marketed and displayed Edwards’s collages. In the original complaint filed by Roberts’s attorney Richard Calrida, they argue that the Beavers Gallery was duplicitous in displaying Edwards’s work as if it was Roberts’s art to “confuse potential buyers.”^[1] The complaint also accuses Edwards for purposely creating works in Roberts’s style. In addition to relief in damages in excess of $1 million, Roberts asks that Edwards’s artwork be destroyed by the court. As of May 17, 2023 the case was still pending.^[2]

Roberts and Edwards were both raised in the southern United States and their artwork explores Black identity through collage. Collage-making has been significant to Black artists for a number of reasons, including its ability to construct new meanings and provide a way to define Black identity independent of the dominant narrative. In the context of art, cultural traditions are specific to a group and include artistic expressions that are passed from generation to generation. This act of building upon what came before makes this type of art a challenging field for copyright. A clear understanding of how innovation and appropriation legally coexist empowers artists to make works that draw from others but contribute differently than the inspiration did. The case is a vehicle to explore the ideas that underlie the arguments. This article investigates the following questions: how should artists working from the same tradition be inspired by each other without committing copyright infringement? Can artists claim cultural traditions such as collage-making?

Broadly speaking, cases like Roberts’s lawsuit are important because strong copyright laws on artistic traditions can potentially stifle innovation. Artists often draw inspiration from one another. Warhol Foundation v. Goldsmith, amicus brief No. 21-869 precisely quoted T.S. Elliot, who said,“the most significant art is often both profoundly original and obviously indebted to what came before it.”^[3] (From the Editors: Recent Decision in Warhol Foundation v. Goldsmith is sure to effect outcome of this and other related pending cases.) Both Roberts and Edwards acknowledge those who have influenced their work in interviews: Roberts thanks scholars like James Baldwin for influencing her work, and Edwards calls her work “Faith Ringgold inspired.”^[4] Art historians cite the artists and theories that inform their interpretation. This citation practice fosters intellectual integrity and proper attribution. If artists began citing those who influenced their work it would strengthen art historical scholarship because artists would indicate exactly who or what influenced their artwork.

Within the case, Roberts claims that Edwards committed willful copyright infringement. But, what is copyright infringement? Generally, it is when a copyrighted work is reproduced, distributed, or displayed without the permission of the copyright owner. Roberts and her attorney, Calrida, argue that Edwards copied various elements from Roberts, creating works that are confusingly similar. Roberts’s work is protected under copyright law. But, this does not necessarily mean that Edwards committed copyright infringement. Copyright law protects the expression of ideas in tangible form and not the ideas themselves. For example, consider the enemies-to-lovers trope. Individual original works based on this trope are protected under copyright law but the trope itself is not. This is because two writers can express such stories through different elements like settings, characters, and dialogue. The trope underlying these two stories would not be protected because it is an idea or an underlying basic theme. In the context of Roberts’s lawsuit collage is the enemies-to-lovers trope as both of these ideas are not protected under copyright law. If traditions such as collage were protected then the artists who can practice the tradition are extremely restricted to the owner and those authorized.

Calrida asserts that in “‘one or more instances, the Defendants’ copying… has gone so far as to incorporate the same photographic source material that Ms. Roberts selected for inclusion (in her collages).’” That being said, Edwards did not copy an entire work from Roberts, as Edwards’s attorney Luke Nikas points out, Roberts’s claim argues that Edwards more generally copied her work, which makes the argument that Roberts puts forward challenging because copyright does not protect style. So the question of whether Edwards committed copyright infringement depends on whether Edwards’s artwork falls under fair use.

Fair use (or unlicensed use) allows use of copyrighted works in certain circumstances. For example, using copyrighted works in criticism, news reporting, or research constitutes fair use.^[5] However, the rules determining whether an instance falls under fair use are subjective. The following four factors from Section 107 of the Copyright Act are used to determine whether use is fair or not:

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.

One of Roberts’s arguments is that Edwards’s art had an impact on the potential market value of her own. When she turned down Beavers Gallery in displaying her work, they according to Roberts, “aggressively marketed (Edwards’s) collages, including by promoting them at one or more high-profile national art fairs at which Ms. Roberts has also promoted and sold.” ^[6] Others did note that Edwards’s artwork was similar to Roberts’s.^[7]

The four factors of fair use are difficult to apply to artwork. Roberts and Edwards are similar artists in their output, but their message is different. Roberts more generally redefines Black beauty through collage, as seen in her work Serenade. The young Black girl is alone on the solid white background. The girl’s face, which has two distinct halves, is the sole element that draws the viewer’s gaze. The focus on her face is further intensified by the fascinator she wears being the only non black and white element in the artwork. What’s more, the girl’s face has a neutral expression, leaving only the two halves of her face for the viewer to consider. Making the girl anonymous and including pieces of different people permits the viewer to see Black identity more broadly depicted in the young girl, as opposed to one individual’s experience of being Black. On the other hand, Edwards sees her younger self in her collages and is more nostalgic.^[8] In her work Calico II, the viewer looks at one young girl and the collage elements of the artwork are concentrated in her dress. The artwork is animated with colorful polka dots framing the girl’s face and she curiously looks at the viewer. By using color on the edges of the young girl, Edwards directs the viewer to look at the entire canvas rather than just at the girl.

These differences highlight how an artistic tradition can facilitate unique expression. Roberts’s work, for example, is more well known than Edwards’s. It may also be true that Edwards drew inspiration from Roberts. If that were the case citing Roberts as inspiration in text accompanying the work makes it clear that Edwards intends to create an original work independent but indebted to the artists who encouraged it.

The aforementioned brief highlights Andy Warhol’s Liz and Deborah Kass’s Red Deb, a comparable situation among artists who adhere to the same artistic tradition, where one artist draws inspiration from another. Here, both artists follow from Pop Art, and Kass obviously used Warhol’s work as inspiration. However, the meaning of Red Deb is built upon the established meaning of Liz. Kass subverts beauty standards by participating in them to highlight different elements of herself as an artist in a male dominated art world.

As technology progresses and copying becomes easier, there is a growing need to better protect artists’ creative rights. However, more rights to protect creatives may not be the answer. A salient example of intellectual property protections preventing innovation is seen in software patents. The software industry is oversaturated with patents although they are supposed to be awarded for only “non-obvious” inventions. The issue has resulted in companies stockpiling patents to protect their inventions and deter others from taking legal action against them. Naturally, the largest companies have the most power. Art is communal and built upon traditions, appropriation and experimentation. In this way, art may be lucky that although artists can try to copyright a style or aesthetic, most do not.

Red Deb, art by Deborah Kass (1992) and Red Liz, art by Andy Warhol (1963), compared side by side, in The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, et al., No. 21-869, Brief for Amici Curiae Supporting Petitioner (U.S. Apr. 12, 2023), citing Red Deb, Smithsonian, National Portrait Gallery, https://www.si.edu/object/red-deb%3Anpg_C_NPG.2013.75.1 (last visited April 12, 2023).

Deborah Roberts, Serenade (2017) (artwork), and Lynthia Edwards, Calico II (2020) (artwork), introduced as evidence in Roberts v. Richard Beavers Gallery, 1:2022cv04516 (E.D.N.Y. August 1, 2022).

ABOUT THE AUTHOR

Madelyn (Maddy) Domek holds a B.S. in Marketing Communications and a minor in Art History from Emerson College. Presently she lives and works in Boston and plans to go to law school in the fall of 2024.

Sources & References

1. Maximilíano Durón, “Deborah Roberts Files Suit Against Dealer Lynthia Edwards, Richard Beavers Gallery,” ArtNews, May 3, 2023, https://www.artnews.com/art-news/news/deborah-roberts-lynthia-edwards-richard-beavers-gallery-lawsuit-1234640393/. ↑

2. Roberts v. Richard Beavers Gallery, 1:2022cv04516 (E.D.N.Y. Aug. 1, 2022). ↑
3. Robert Rauschenberg Foundation, Roy Lichtenstein Foundation, Joan Mitchell Foundation, Brooklyn Museum, and College Art Association, Amici Curiae Supporting Petitioner, The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, et al., No. 21-869, Brief for Amici Curiae Supporting Petitioner (U.S. Apr. 12, 2023). ↑
4. ICABoston. The Artist’s Voice: Deborah Roberts, YouTube video, 8:58-10:00. Posted by ICABoston, January 28, 2021. https://www.youtube.com/watch?v=5SDEdWttJwM&t=985s; Kentuck Art Center. 2022 exhibit: ‘Y’Art Sale Artist Talk, YouTube video, 2:25-2:35. Posted by KentuckArtCenter, April 29, 2022, https://www.youtube.com/watch?v=ABJJqiok9hA&ab_channel=KentuckArtCenter. ↑
5. U.S. Copyright Office. “Chapter 1 – Subject Matter and Scope of Copyright.” Title 17, United States Code, Section 107. Accessed on 5 May 2023, https://www.copyright.gov/title17/92chap1.html#107. ↑
6. Samantha Willis, “Deborah Roberts sues another artist and her gallery for copyright infringement,” Sightlines, October 6, 2022, https://sightlinesmag.org/deborah-roberts-sues-another-artist-and-her-gallery-for-copyright-infringement?fbclid=IwAR0QbFoywyiy-6QevKTurhSCk7-J69-lrI2TmMSP7OH1VFOsGH4RwIsusvM. ↑
7. Angela N. Carroll, “Ethics and Controversy: Reviewing Appropriation in Black Art,” Sugarcane Magazine, January 2022, https://sugarcanemag.com/2022/01/ethics-and-controversy-reviewing-appropriation-in-black-art-by-angela-n-carroll/. ↑
8. Lynthia Edwards, About, Black Unicorns Matter, accessed May 19, 2023, https://www.blackunicornsmatter.com/about. ↑

The post Case Review: Roberts v. Richard Beavers Gallery et al (2022) – on Artistic Tradition and Copyright Infringement appeared first on Center for Art Law.

The post Artist Feature Series: In Conversation with Hilde Lynn Helphenstein/ Jerry Gogosian appeared first on Center for Art Law.

Atreya Mathur and the Center for Art Law Team

Before the Interview:

About Yayoi Kusama and collaborations with Louis Vuitton

Yayoi Kusama, a Japanese artist, has dedicated over six decades to the creation of art. At nearly 94 years of age, Kusama is widely acknowledged as one of the most accomplished living artists.^[1] Renowned globally, she possesses a distinctive and captivating visual style that has mesmerized audiences. Exhibiting her works internationally, Kusama’s art embraces vibrant colors, geometric forms, and repetitive patterns. Furthermore, she incorporates performance and multimedia elements into her pieces, heightening their impact and allure. Themes explored within her works encompass repetition, infinity, and the interconnectedness of existence.^[2]

The “infinity room” stands as one of Kusama’s most renowned creations, enveloping viewers within a mesmerizing realm of mirrors and lights that seemingly stretches into infinity. Additionally, her distinctive use of the polka dot motif permeates various mediums, ranging from paintings and sculptures to fashion. Kusama’s artistic expression is profoundly shaped by her personal battles with mental illness, specifically hallucinations and obsessive-compulsive disorder. Through her art, she finds solace and employs it as a therapeutic outlet to navigate and manage her condition.^[3]

During the 1950s and 1960s, Kusama garnered recognition as an integral part of New York’s avant-garde art scene. Throughout her career, she has consistently produced remarkable works that have been showcased in prestigious museums and galleries worldwide.^[4] As a result, Kusama has emerged as one of the most influential and iconic Japanese artists of the 20th and now the 21st century.^[5] Yayoi Kusama Museum operates in Tokyo under the management of with Yayoi Kusama Foundations (est. 2017). Kusama, represented by important galleries in the United States, Europe and Japan have facilitated her work and over the years, Kusama enjoyed several important collaborations from garments and design products to installations that have traveled around the world.

In 2012, Yayoi Kusama and Louis Vuitton embarked on their first collaborative journey that proved to be immensely successful. This partnership resulted in the creation of a special collection that showcased Kusama’s distinctive artwork. The collection featured an array of clothing, accessories, and home décor items adorned with her iconic polka dots. The collaboration garnered significant attention and acclaim, establishing itself as one of the most triumphant unions between an artist and a fashion house.^[6]

The remarkable achievements of the Kusama-Louis Vuitton collaboration played a pivotal role in introducing the artist’s works to a broader audience. Consequently, Kusama’s creations have become an integral part of the fashion house’s collections and promotional campaigns. Ten years later, LV and Kusama joined forces again painting the world from Paris to New York, Tokyo and Zurich in polkadots.

Concerns from the artist community

In early January 2023, Louis Vuitton unveiled the initial release of their latest collaboration with Yayoi Kusama. Dubbed the “Creating Infinity” collection, it encompasses an extensive range of products, including over 450 bags, perfumes, accessories, and shoes. The “Creating Infinity” collection has placed a strong emphasis on social media-friendly marketing strategies. At Louis Vuitton’s Fifth Avenue store in New York as well as at the Place Vendôme location in Paris, one could witness an animatronic mannequin resembling the artist, complete with her trademark bob hairstyle and smock dress, painting dots onto the shop windows. (See HERE.) Additionally, fashion model, Bella Hadid, took center stage in the collection’s advertisements, further amplifying the buzz surrounding the collaboration.

The project however faced significant criticism, particularly with regard to accusations of exploiting Yayoi Kusama for financial gain and commercializing her artistic legacy.^[7]

Use of Kusama’s Image:

The use of Yayoi Kusama’s face and body as a prominent aspect of the collaboration has sparked comments, questions and at times debate. Carrie Scott, an American/English curator and gallery director voiced her apprehensions on Instagram, expressing concerns about the project “objectifying and commodifying an Asian woman’s body.” The robotic figures employed for promotional purposes, as mentioned by Scott, are essentially akin to store mannequins. Additionally, some critics have criticized the promotional image of Kusama, arguing that it potentially perpetuates ageism by not accurately reflecting the artist’s true age. These criticisms shed light on the ethical dimensions of the collaboration, particularly in terms of representation, commodification, and ageism.^[8] The debate highlights the importance of considering how an individual’s identity and physical appearance are used in the context of commercial ventures, as well as the potential impact on broader societal perceptions.

Commercial and exploitative:

The marketing tactics employed for ‘Creating Infinity’ has also drawn criticism from some perceiving them as “distastefully commercial.”^[9] The perception of the collaboration as a “money grab” stems from the belief that the marketing efforts and product extensions veer towards excessive commercialization.^[10] It raises questions about the integrity of the artistic collaboration and the balance between artistic expression and profit-driven motives.^[11]

Consent:

Yayoi Kusama’s personal history includes voluntarily residing in a Japanese psychiatric hospital following a suicide attempt in the 1970s. Throughout her life, Kusama has grappled with mental health challenges and vivid hallucinations, which are believed to have influenced her affinity for repetitive dot patterns. Concerns have arisen regarding the level of genuine involvement and consent from Kusama in this particular project. In addition to her health, the artist’s advanced age prompts questions about the timing and rationale behind the 2023 collaboration. These observations and queries raise concerns regarding Kusama’s well-being, agency, and motivations.^[12] They draw attention to the potential exploitation or undue influence that may arise when collaborating with an artist who has faced significant mental health challenges and is at an advanced age. The concerns prompt reflection on the ethical considerations surrounding such collaborations and the need to ensure that artists’ interests and well-being are appropriately respected. What constitutes an artist’s interest at such a respectable age is surely answered in different ways for each artist. As artists age, like anyone else, their ability to communicate their interests may change and estate planning and legacy questions are better answered by individuals at their earlier life stages.

Kusama herself rarely grants interviews or appears in public, leading many commentators to question the intentions of her studio and the potential exploitation involved. As a general rule, power of attorney, or conservancy may need to be established over individuals who may become incapacitated and local laws govern laws of conservatorship (etc). Kusama is represented by attorney Yoshifumi Onodera in Japan, and is represented by the David Zwirner Gallery in the United States since 2013. Kusama is also represented by Victoria Miro in London and Ota Fine Arts. Duties of dealers outside the United States are subject to local jurisdictions; however, according to the domestic legislation, dealers are agents of artists and owe duties to their artists. Therefore they must act as her agents, in her best interest. More recently, the David Zwirner gallery in New York opened a new exhibition in May 2023 named after three monumental flower sculptures, each titled I Spend Each Day Embracing Flowers. A personal message from Kusama (almost a poem) is quoted on the occasion of the show:

“I’ve Sung the Mind of Kusama^[13]

Day by Day,

a Song from the Heart.

O Youth of Today,

Let Us Sing Together a Song from

the Heart of the Universe!”

Yayoi Kusama 2023

For the 2023 LV collaboration, The Wall Street Journal reported that the fashion house collaborated closely with Kusama and her studio for over a year, suggesting a level of involvement and consent from the artist or his agents.^[14] The question of whether this collaboration is exploitative is complex. Who has the authority to speak on behalf of Yayoi Kusama and is appropriate to criticize her for capitalizing on her fame, assuming that is her intention? Given past collaborations and larger than life personality, this larger than life campaign might be just what the artist ordered. The optics surrounding this particular collaboration, one in a series (Think about Takashi Murakami (early 2000s), Jeff Koons (2017), Stephen Sprouse(2001), and Richard Prince (2008)), challenge the boundaries between art, commerce, and personal agency.^[15]

According to Vogue India, “I have been making my clothes since I was a teenager. I also ran a fashion company in the 1960s. At that time, fashion and art were two completely different genres, but I have never made a distinction between them. I don’t think of them as separate because that way I can explore new fields,” she explains.”^[16]

Nevertheless, despite the intentions behind it, the experience of encountering the Kusama robot is described as both “fascinating and discomforting.” Its impact lies not in its deliberate artistic expression but in its role as a marketing gimmick. Its “garish primary colors and uncanny robotic presence” provoke strong reactions and have caused public concern.^[17]

Overall, the controversy surrounding this collaboration underscores the intersection of art, business and public perception, evoking mixed emotions and varied interpretations among observers.^[18] It also questions “controversial” brand collaborations with artists and other organizations including high end fashion companies as a way for artists to make money.^[19] Jerry Gogosian took to Instagram to ask why “pumping out a line of handbags” would be a priority for the nonagenarian.^[20] On January 9 Jerry along with Matt Capasso discussed the concerns of the Kusama x LV collaboration on a podcast titled Art Smack (Episode 9).

After the interview:

Issue of bots and trolls on social media: What they are and what to do

Social media platforms like Instagram and Twitter have been increasingly plagued by the presence of automated fake accounts known as “bots.”^[21] These bots, operated by software rather than real individuals, have contributed to the spread of misinformation and spam messages, prompting calls for action.^[22] Identifying these bots can be done by recognizing certain patterns, such as the absence of a profile picture or the use of suspicious usernames with numbers, accompanied by a low number of posts and followers.^[23]

On Instagram, bot activity often involves spam comments urging users to interact with malicious links or promoting deceptive offers. The Terms of Use specifically state “You can’t attempt to create accounts or access or collect information in unauthorized ways. This includes creating accounts or collecting information in an automated way without our express permission.” Most Instagram bots access Instagram’s API (the connection that allows a service such as Later to communicate with the Instagram app) without permission.^[24] As stated in Instagram’s Terms of Use, this is a strict violation: “You must not access Instagram’s private API by means other than those permitted by Instagram. Use of Instagram’s API is subject to a separate set of terms.”

Similarly, on Twitter, bots frequently impersonate individuals with strong musical or political opinions, flooding reply threads with repetitive and sometimes offensive messages. The Terms of Use also address automation and state that “You may only take automated actions through another Twitter user’s account if you: clearly describe to the user the types of automated actions that will occur; receive express consent from the user to take those automated actions; and immediately honor a user’s request to opt-out of further automated actions.” Twitter also has a platform manipulation and spam policy that states “You may not use Twitter’s services in a manner intended to artificially amplify or suppress information or engage in behavior that manipulates or disrupts people’s experience or platform manipulation defenses on Twitter” making it a violation to use bots for such purposes.

While these bots may appear as mere annoyances, they have been linked to more serious issues like election interference^[25] and the dissemination of false information during pandemics.^[26] Using bots to silence critical commentary raises concerns about infringing on the right to freedom of expression and speech. The implication of silencing individuals through the use of bots would possibly prevent individuals including artists from sharing information and experiences such as the discourse on Kusama. Such topics need to be addressed in regards to artists rights and ensuring protection of other artists who may be in similar situations. It is difficult to trace the origin of these bots and the companies or organizations responsible for it.^[27]

“Bot accounts harassing Gina Carano will post the same message within 1 minute of each other” Source: https://twitter.com/Dataracer117/status/1290829497059532800

Instagram killed off thousands of spambots in an attempt to curb the number of bots on the platform which resulted in the loss of hundreds and thousands of followers for users which highlights the severity of the issue and the mass use of bots. The response to this was not as positive as one would think it would be.

Source: https://www.reddit.com/r/Instagram/comments/gg9tau/instagram_seriously_has_to_do_something_about/

The primary motivation behind the existence of general bots on social media platforms is to manipulate engagement metrics and create artificial popularity.^[28] Detecting social media bots has become increasingly challenging due to advancements in Artificial Intelligence, enabling bots to imitate human-like language and behavior. Who is behind the bots? Are they self-proliferated? This poses a significant problem for users on the platform as it becomes harder for them to distinguish between genuine accounts and bots and to decide whom to engage with.^[29]

And as toxic as social media can be with harassment and bullying by humans, trolls and bots make it worse. A troll is different from a bot because a troll is a real user, whereas bots are automated. The two types of accounts are mutually exclusive. Both automated bot accounts and trolls can easily distort the image or reputation of your company on social media by tweeting or commenting fake news.

Distinguishing between bots and trolls is important as they have different characteristics. RoBhat Labs defines political propaganda bots as automated accounts that spread polarized misinformation on Twitter. To identify bots, there are several signs to look out for:

1. Frequency of posting: Bots tend to post a large number of tweets per day. Check the account’s profile page and calculate the average number of tweets divided by the number of days the account has been active. If the account is tweeting hundreds of times per day, it’s likely a bot.^[30]
2. Relentless behavior: While both bots and trolls can behave badly, bots are often relentless. They continuously post without giving up or stopping, this non-stop activity may indicate a bot.^[31]
3. Initial behavior: Bot profiles often start by aggressively promoting ideas or products. Examining the earliest tweets of an account can reveal a pattern of relentless promotion.^[32]

Differentiating between trolls and bots can be challenging. Online tools such as Botcheck.me, a Chrome extension utilizing machine learning, can assist in identifying bots.^[33]

Dealing with trolls and bots

Those using Instagram and Twitter, professionally or recreationally, with public profiles could come into contact with bots and trolls if they write about sensitive, for any reason, topics. Dealing with trolls requires logic and a philosophical approach rather than relying solely on technology or private law. When facing such an issue online, after confirming the absence of bot-like behavior, consider the other person’s intentions. Are they arguing in bad faith, seeking to score points or make you feel bad? Assess the bot’s profile and their past interactions and determine if they consistently engage in such behavior. It’s important to be mindful of time and mental well-being when addressing trolls.^[34] Trolls often travel in packs and may be supported by bots.^[35] They rely on intimidation tactics, such as relentless commenting and messaging, using harsh words, but one has the power to choose how and when to engage. One option is to utilize the mute and block features as necessary to maintain control over online interactions. While some people find enjoyment in arguing, engaging with bots or trolls may not be productive in the long run. The purpose behind bots is often to create divisions and amplify echo chambers of ideas. It’s important to consider the larger consequences and effects of arguing with these entities.^[36]

Are bots illegal?

Instagram bots are legal when they comply with the Instagram Platform Policy. Otherwise, particular types of Instagram bots (like follow bots and like/comment bots) violate Instagram’s terms and can be shut down because they result in fake Instagram followers, fake likes, and sporadic bot activity.^[37] If an individual is experiencing harassment or bullying via such bot accounts, this can be reported to Instagram. These bots are usually against the policies of Instagram but are not illegal.^[38]

Addressing the issue of social media bots is complex and does not have a straightforward solution. A bit like a Whac-A-Mole… It is crucial for individuals to educate themselves on how to protect against fake and fraudulent accounts. In addition to personal efforts, there is a need for social media companies to take more significant action to combat bots on their platforms. This includes updating their detection methods to adapt to evolving bot behavior. Users of social media platforms including artists and creatives use these platforms as a medium of expression– to share their art, their thoughts, their views on the world and engage in meaningful conversations about the art world and beyond. It becomes important to ensure that such creativity and freedom is respected and artists are not silenced or intimidated to speak and express freely.

Consulted Sources:

1. Englefield, Jane, Eight key collaborations and projects by contemporary artist Yayoi Kusama, de zeen (Jan. 20, 2023) available at https://www.dezeen.com/2023/01/20/collaborations-projects-yayoi-kusama/ , also see https://crfashionbook.com/culture-a36064254-yayoi-kusama-fashion-art/ ↑
2. WHO IS YAYOI KUSAMA?, TATE, available at https://www.tate.org.uk/kids/explore/who-is/who-yayoi-kusama ↑
3. Yayoi Kusama at WNDR Museum, WNDR (Mar.28, 2023) available at https://wndrmuseum.com/experience-kusama-at-wndr/ ↑
4. Yayoi Kusama, Biography, David Zwirner, available at https://www.davidzwirner.com/artists/yayoi-kusama ↑
5. Yayoi Kusama at WNDR Museum, WNDR (Mar.28, 2023) available at https://wndrmuseum.com/experience-kusama-at-wndr/ ↑
6. Ledesma, Jose, The Art of Yayoi Kusama: Exploring the collaboration with Louis Vuitton (Feb, 26, 2023) available at https://www.joseluisledesma.com/the-art-of-yayoi-kusama-exploring-the-collaboration-with-louis-vuitton/ ↑
7. Frankel, Eddy, We saw the Yayoi Kusama robot at Louis Vuitton and it’s terrifying, Timeout (Jan. 24, 2023) available at https://www.timeout.com/london/news/we-saw-the-yayoi-kusama-robot-at-louis-vuitton-and-its-terrifying-012423 ↑
8. Babbs, Verity, Cause for Concern? Louis Vuitton x Yayoi Kusama Collaboration, Artscapy, available at https://artscapy.com/page/view-post?id=168 ↑
9. Frankel, Eddy, We saw the Yayoi Kusama robot at Louis Vuitton and it’s terrifying, Timeout (Jan. 24, 2023) available at https://www.timeout.com/london/news/we-saw-the-yayoi-kusama-robot-at-louis-vuitton-and-its-terrifying-012423 ↑
10. Frankel, Eddy, We saw the Yayoi Kusama robot at Louis Vuitton and it’s terrifying, Timeout (Jan. 24, 2023) available at https://www.timeout.com/london/news/we-saw-the-yayoi-kusama-robot-at-louis-vuitton-and-its-terrifying-012423 ↑
11. Babbs, Verity, Cause for Concern? Louis Vuitton x Yayoi Kusama Collaboration, Artscapy, available at https://artscapy.com/page/view-post?id=168 ↑
12. Babbs, Verity, Cause for Concern? Louis Vuitton x Yayoi Kusama Collaboration, Artscapy, available at https://artscapy.com/page/view-post?id=168 ↑
13. ‘Kusama’ in Japanese means, day and/or sun, see https://culturetour.net/japanese-last-names/kusama9186 ↑
14. Frankel, Eddy, We saw the Yayoi Kusama robot at Louis Vuitton and it’s terrifying, Timeout (Jan. 24, 2023) available at https://www.timeout.com/london/news/we-saw-the-yayoi-kusama-robot-at-louis-vuitton-and-its-terrifying-012423 ↑
15. Frankel, Eddy, We saw the Yayoi Kusama robot at Louis Vuitton and it’s terrifying, Timeout (Jan. 24, 2023) available at https://www.timeout.com/london/news/we-saw-the-yayoi-kusama-robot-at-louis-vuitton-and-its-terrifying-012423 ↑
16. Zamindar, Shriya, Inside Louis Vuitton’s viral collaboration with Yayoi Kusama, Vogue India (Jan. 19, 2023) available at https://www.vogue.in/fashion/content/inside-louis-vuittons-viral-collaboration-with-yayoi-kusama#:~:text=Louis%20Vuitton%20has%20created%20a,hits%20one%20after%20the%20other ↑
17. Segalovich, Isabella, The Uncanny Valley of Louis Vuitton’s Yayoi Kusama Collection, PRINT (Feb. 13, 2023) available at https://www.printmag.com/design-criticism/the-uncanny-valley-of-louis-vuittons-yayoi-kusama-collection/ ↑
18. Frankel, Eddy, We saw the Yayoi Kusama robot at Louis Vuitton and it’s terrifying, Timeout (Jan. 24, 2023) available at https://www.timeout.com/london/news/we-saw-the-yayoi-kusama-robot-at-louis-vuitton-and-its-terrifying-012423 ↑
19. Babbs, Verity, Cause for Concern? Louis Vuitton x Yayoi Kusama Collaboration, Artscapy, available at https://artscapy.com/page/view-post?id=168 ↑
20. Id. ↑
21. Social media has a bot problem, THE ALESTLE (Jul. 21, 2021) available at https://www.alestlelive.com/opinion/article_b95367da-e96b-11eb-ae0c-cb6db8f80f05.html ↑
22. How Online Bots Spread Fake News, Young Scot (Dec. 2022) available at https://young.scot/get-informed/ysdigiknow-fake-news-bots/; also see https://www.sciencedirect.com/science/article/abs/pii/S0140366422003711 ↑
23. See more here https://www.jeffbullas.com/instagram-bots/ ↑
24. See more at https://later.com/blog/instagram-bots/ ↑
25. Metz, Cade, Twitter Bots Poised to Spread Disinformation Before Election, New York Times (Oct. 29, 2020) https://www.nytimes.com/2020/10/29/technology/twitter-bots-poised-to-spread-disinformation-before-election.html ↑
26. Himelein-Wachowiak M, Giorgi S, Devoto A, Rahman M, Ungar L, Schwartz HA, Epstein DH, Leggio L, Curtis B. Bots and Misinformation Spread on Social Media: Implications for COVID-19. J Med Internet Res. (May 20, 2020) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8139392/ ↑
27. See more https://towardsdatascience.com/trolls-and-bots-are-disrupting-social-media-heres-how-ai-can-stop-them-d9b969336a06; https://niccs.cisa.gov/sites/default/files/documents/pdf/ncsam_socialmediabotsoverview_508.pdf?trackDocs=ncsam_socialmediabotsoverview_508.pdf; see examples of comments https://www.reddit.com/r/Instagram/comments/oy3ez4/holy_fuck_can_we_get_rid_of_these_art_bots_scammy/; https://www.nytimes.com/2017/06/06/business/media/instagram-bots.html; https://cointelegraph.com/news/community-calls-out-bots-spamming-crypto-twitter-threads ; ↑
28. Nelson, Noah, Bot or Bully? How To Tell And What To Do About It YR media (2018) available at https://yr.media/tech/how-to-tell-if-youre-dealing-with-a-twitter-bot-or-a-bully-and-what-to-do-about-it/ ↑
29. Id. ↑
30. Id. ↑
31. Id. ↑
32. Id. ↑
33. Nelson, Noah, Bot or Bully? How To Tell And What To Do About It YR media (2018) available at https://yr.media/tech/how-to-tell-if-youre-dealing-with-a-twitter-bot-or-a-bully-and-what-to-do-about-it/ ↑
34. Id. ↑
35. How to deal with trolling, bots and fake accounts, available at https://usa.kaspersky.com/resource-center/preemptive-safety/how-to-deal-with-trolling-bots-and-fake-accounts; also see https://link.springer.com/article/10.1007/s13347-023-00640-9 ↑
36. Nelson, Noah, Bot or Bully? How To Tell And What To Do About It YR media (2018) available at https://yr.media/tech/how-to-tell-if-youre-dealing-with-a-twitter-bot-or-a-bully-and-what-to-do-about-it/ ↑
37. See more here https://manychat.com/blog/how-to-build-an-instagram-bot/#:~:text=Are%20Instagram%20bots%20legal%3F,likes%2C%20and%20sporadic%20bot%20activity. ↑
38. Nambakhsh, Cyrus, Are Instagram Bots Illegal to Use? What Are the Solutions?, socialpros (2020) https://socialpros.co/are-instagram-bots-illegal-to-use-what-are-the-solutions/ ↑

The post For Background Purposes: Prep for an Artist Interview appeared first on Center for Art Law.

By Sophia Williams

From 1933 to 1945, during the Nazi party’s rise to power, the Nazis looted, confiscated, or involuntarily transferred more than half a million artworks owned by Jewish art collectors and other victims.^[1] Following Nazi party looting before and after World War II, thousands of artworks ended up in museum collections around the world, including in New York, and remain there today.^[2] A recent act passed in August 2022 “to amend the education law, in relation to notice of art stolen during the Nazi era in Europe” (the “2022 Act”) mandated New York State museum transparency for art involuntarily transferred from owners during the Nazi era.^[3] The amended statute, N.Y. Educ. Law § 233-aa (the “Statute”) does so by requiring museums to display this provenance history through a physical notice accompanying the exhibition of the artwork.^[4] However, the law presents several challenges in defining what artworks it covers, what behaviors museums must adopt to identify artworks in compliance with the Statute, and whether it may unconstitutionally conflict with museums’ First Amendment rights.

According to the 2022 Act:

“Every museum which has on display any identifiable works of art known to have been created before nineteen hundred forty-five and which changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era (nineteen hundred thirty three—nineteen hundred forty-five) shall, to the extent practicable, prominently place a placard or other signage acknowledging such information along with such display.”^[5]

HISTORICAL BACKGROUND

An estimated 600,000 artworks were looted from Jewish people during the Nazi era.^[6] The New York law defines the Nazi era as between 1933 and 1945, covering coercively exchanged property from the start of Hitler’s rise to power to the end of World War II. The justification for the Statute declares, “[t]he looting was not only designed to enrich the Third Reich but also integral to the Holocaust’s goal of eliminating all vestiges of Jewish identity and culture.”^[7] Furthermore, “many museums now display this stolen art with no recognition of their provenance.”^[8] This plunder disseminated worldwide, with thousands of artworks entering the collections of prominent cultural institutions in Europe and in the U.S.^[9] Restituting art looted during the Holocaust not only returns stolen property to rightful owners but also restores cultural heritage and links to history for present generations. Additionally, acknowledging these involuntary losses of cultural identity is key to facilitating transparency around and education of the Nazi era.

The Statute passed in New York State in August 2022 is part of a legislative package to “honor and support Holocaust survivors in educational, cultural, and financial institutions,” and to put forth paths to improve education about the Nazi period.^[10] The Claims Conference: Conference on Jewish Material Claims Against Germany, an organization that secures material compensation for Holocaust survivors around the world, produced a study in 2020 that examined the knowledge of Americans under 40 regarding the Holocaust, the number of Jews the Nazis killed, and the ability to name at least one camp or ghetto.^[11] New York was one of ten states that ranked lowest in this knowledge, and the results of this study prompted state lawmakers Anna M. Kaplan (Port Washington), Alessandra Biaggi ((Bronx/Westchester), Simcha Felder (NY Senate District 22), and Mike Martucci (NY Senate District 42) to investigate ways to improve Holocaust awareness, leading to the creation and passage of the amendment to New York State Education Law § 233-aa.^[12]

NYS Museums, as educational institutions that to a significant extent protect cultural heritage and share history with the public, have the educational responsibility to disclose histories of the Nazi era that may accompany artworks in their collections. As Kaplan commented about the Statute: “with the history of the Holocaust being so important to pass on to the next generation, it’s vital that we be transparent and ensure that anyone viewing artwork stolen by the Nazis understand where it came from and its role in history.”^[13] By mandating site-specific publication of relevant information at museums, the 2022 Statute encourages recognition of how works of art found in New York’s institutions’ collections intersected with the Nazi era and with the expropriation of cultural property.

IDENTIFYING MISAPPROPRIATED ART UNDER THE STATUTE

The Statute establishes the definition of applicable property as artworks that “changed hands due to theft, seizure, confiscation, forced sale or other involuntary means in Europe during the Nazi era.”^[14] The definition demonstrates the legislation’s intent to recognize the extensive ways art was improperly transferred from rightful owners during the Holocaust, ranging from pieces stolen outright to those sold under involuntary means.

However, many conflicts between the current possessors of artwork and claimants in recent decades illustrate how complex it is to actually determine whether a piece in any given collection meets the definition of improper transfer set forth by the Statute. For example, when descendants of victims undertake litigation to reclaim wrongfully dispossessed property, their claims may be barred if they fail to prove an artwork was improperly transferred or, alternatively, may be barred on technical defenses before the court addresses the substantive matter.^[15] Additionally, conflicts between descendants and current possessors of art works may be resolved and the piece restituted to descendants before a museum acquires it for its collection. Or, they may be resolved in private agreements between parties prior to entering litigation or during litigation. In such cases, the question for the institution arises: does the Statute apply?

When determining whether a work of art falls under the purview of the Statute, museums must perform extensive provenance research. Provenance research initiatives at the Metropolitan Museum of Art (the Met) identified 53 works of art that were misappropriated by the Nazis that were “restituted to their rightful owners” and then purchased by or donated to the museum.^[16] One example is a work by Claude Monet titled The Parc Monceau, painted in 1878.^[17] The Nazis seized the painting from the bank of Jewish collector Alfred Lindenbaum and transported it to the Jeu de Paume, an art center in Paris the Nazis used to store looted art.^[18] In 1942, Hermann Goering conveyed the painting to art dealer Commandatore Eugenio Ventura of Florence, Italy.^[19] In 1946, following the end of World War II, the French Commission de Récupération Artistique, an organization dedicated to the processing and restitution of Nazi plunder, retrieved the painting from Rome and returned it to Lindenbaum’s heirs, who then sold it to the Met 13 years later.^[20]

The Statute asserts that museums are to place signage accompanying artwork with a history of wrongful expropriation.^[21] However, it is not straightforward whether the law obliges museums to attach labels to all artworks that were misappropriated during the Nazi era. For instance, it is unclear if the signage will also include property once misappropriated and later restored to rightful ownership or if it will only include artworks that remain misappropriated.

Similarly, there is ambiguity regarding which artworks are to be assigned placards when considering works for which claimants sought restitution from an institution through legal recourse and then ultimately reached a settlement with the museum. In 2009, Julius Schoeps, a descendent of art collector Paul von Mendelssohn-Bartholdy, who sold two Picassos (Le Moulin de la Galette and Boy Leading a Horse) in 1935 in Germany, requested the Solomon R. Guggenheim Foundation (the Guggenheim) and the Museum of Modern Art (MoMA) return the paintings, arguing they were sold under involuntary circumstances.^[22] The museums filed suit against Schoeps, asking for the court to rule on the validity of their titles.^[23] Ultimately, the museums and Schoeps reached a settlement, and the paintings remain in the museum collections today.^[24]

Paul von Mendelssohn-Bartholdy ran a family bank that German municipalities targeted and boycotted in 1933.^[25] Prior to 1933, Von Mendelssohn-Bartholdy had never attempted to sell any part of his art collection, and only with his livelihood under threat, began to sell various pieces. ^[26] The governing law at the time voided contracts if a party was at a “disadvantage in bargaining,” and the factual events pressuring von Mendelssohn-Bartholdy at the time would comprise such disadvantage.^[27] However, the museums now legally possess both works, and the court did not resolve the question of whether an unlawful transfer occurred originally. Since the possessing museum and owners’ descendant had already reached a settlement, the court did not determine whether Schoeps’ predecessor’s loss of the paintings met the definition of having changed hands under involuntary means. Does the New York Statute compel the Guggenheim and MoMA to exhibit Picasso’s Le Moulin de la Galette and Boy Leading a Horse with placards indicating their history? It remains unclear.

The Guggenheim publishes the following on its provenance research: “Of approximately 1,025 prewar European works in the Guggenheim Collection, the museum’s research staff initially identified approximately 275 works that are known to have, or might reasonably be thought to have, changed hands in continental Europe between 1932 and 1946.”^[28] This language is reminiscent of the Statute’s definition of covered artworks, including artworks “having changed hands due to theft, seizure, confiscation, forced sale or other involuntary

means.”^[29] However, in response to the Statute, the Guggenheim has said that it is “continuing its research” but “is not aware of works in its collection looted by Nazis.”^[30] Thus, while the Guggenheim’s research identifies 275 artworks that changed hands during the Nazi era, the museum has identified no works in its collection that changed hands in involuntary circumstances, and assesses that no works in its collection, to present knowledge, are covered under the New York Statute. This statement illustrates potential discrepancy that may arise between the statue’s intent of which works ought to be covered, and museums’ definitions of the status of Nazi era artworks in their collections.

INSTITUTIONAL KNOWLEDGE OF MISAPPROPRIATED ART

In explaining which art on display at New York State museums has Nazi-era history that the law would apply to, the Statute lists several types of problematic transfers in ownership during the Nazi era and also characterizes the art as having to be “identifiable” to museums.^[31] The Statute’s requirement that an artwork’s ownership status be identifiable to museums implies that in order for a museum to fulfill its obligations under the law, it ought to conduct provenance research to ascertain how the art in its collection changed hands during the Nazi era.

However, the Statute stops short of a requirement for museums to conduct provenance research. Instead, it only requires museums to label “identifiable” works of art in their collection “known to have” changed hands during the Nazi era.^[32] If exchanges are ‘unidentifiable’ or ‘unknown’ to a museum – or if an institution simply does not identify an artwork’s problematic provenance – the museum may leave problematic artworks unlabeled. Or, they may simply opt to no longer exhibit the artwork. The museum would still be in compliance with the Statute’s requirements if they do not make known provenance that is problematic, which calls into question the efficacy of the law and the ability to enforce its aim.

REQUIRED EXHIBITION SIGNAGE AS UNCONSTITUTIONAL COMPELLED SPEECH

One interpretation of the New York law is that by requiring museums to create signs with information about the artworks in their collections, it compels speech and violates the first amendment right to speak freely. In several cases, the Supreme Court has asserted that the First Amendment, which states that no law may prohibit the free exercise of speech, not only protects the right to speak but the right to not to speak.^[33]

The outcome of landmark compelled speech cases such as West Virginia State Board of Education v. Barnette provides an exemplary lens to evaluate the recent New York Statute and its vulnerability to violating museums’ First Amendment right to refrain from expression. In 1943, West Virginia State Board of Education v. Barnette assessed whether a resolution that ordered students to salute the American flag violated the constitutional right to free speech.^[34] The Supreme Court found the resolution unconstitutional.^[35] The opinion stated that if the Court sustained the resolution, it would mean that the First Amendment, “which guards the individual’s right to speak his own mind,” also allowed “public authorities to compel him to utter what is not in his mind.”^[36] This decision asserts that compelled speech, that is, expression required by a law that an entity may not like to express, is unconstitutional.

Similarly, the New York Statute compels museums to express a message about the potentially dishonorable nature of works in their collections through placards on their walls. This may be construed as governmentally compelled speech that the museums would not have uttered otherwise.

CONCLUSION

Multiple elements of the 2022 New York Statute leave unsettled how museums will interpret and apply its directive to their collections. From the varied types of expropriation that occurred in the Nazi era to the divergent ownership statuses that accompany artworks, including legally owned by the museum, unresearched, or currently disputed, identifying which artworks in a museum collection should have placards is highly complex.

Furthermore, museums in New York and nationwide have achieved disparate levels of provenance research in their collections and conducting provenance research is not legally required.^[37] This leaves a serious loophole in the enforcement of the law. If museums have not identified their artworks as misappropriated, they have no obligation to set in place signage. Immense funding and resources are directed towards researching Nazi-era histories that overlap with a museum’s collection. Now, there may be a lack of incentive for museums to conduct this research in order to announce problematic histories and potentially call into question art they possess. It is therefore difficult to imagine museums eagerly adopting the Statute’s charges for identification and designation of involuntarily expropriated art.

Additionally, it may not be constitutional for a state law to require museums to convey a certain message or to obligate institutions to post written signage. There are protections against compelled speech for people and entities including museums.

These ambiguities position the law as a symbolic message encouraging increased awareness and education of the subject rather than a catalyst for change in how museums present art with Nazi-era history. Time will reveal whether museum attendees see a new smattering of placards next to paintings they visit, acknowledging previously silent histories, or whether the legislation will largely fail to engender significant action.

About the Author

Sophia Williams, Center for Art Law Spring 2022 intern, is interested in legal issues surrounding the commercial art world, artist rights, and illicit markets. Sophia graduated from Princeton University with a B.A. in Architecture and Urban Studies and has since worked in NYC at an auction house and art gallery. In the summer of 2022, she was a post-graduate certificate student in art crime and cultural heritage protection at the Association for Research into Crimes Against Art (ARCA) in Amelia, Italy.

BIBLIOGRAPHY

• Patty Gerstenblith. Art, Cultural Heritage, and the Law: Cases and Materials. 4^th ed. Durham: Carolina Academic Press, 2019.
• Catherine Hickley. “Has New York’s law aimed at identifying Nazi-looted art in museums worked?.” The Art Newspaper. April 7, 2023. https://www.theartnewspaper.com/2023/04/07/new-york-nazi-looted-art-museums-setbacks.
• Maysoon Khan, New York museums to disclose artwork looted by Nazis.” The Seattle Times. September 16, 2022, https://www.seattletimes.com/nation-world/new-york-museums-to-disclose-artwork-looted-by-nazis.
• Jennifer Anglim Kreder, “Fighting Corruption of the Historical Record: Nazi-Looted Art Litigation,” University of Kansas Law Review 61, no. 1 (October 2012): 75-138.
• Nicholas M O’Donnell. A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art. Chicago: Ankerwicke, 2017.
• Luke Tress. “New York law on Nazi-looted art aims to shine light on lesser-known Holocaust evil.” The New York State Senate. September 2, 2022. Originally published in The Times of Israel. https://www.nysenate.gov/newsroom/in-the-news/anna-m-kaplan/new-york-law-nazi-looted-art-aims-shine-light-lesser-known.
• Russell L. Weaver and Catherine Hancock. The First Amendment: Cases, Problems and Materials. 6^th ed. Durham: Carolina Academic Press, 2020.
• U.S., New York State Senate. “Senate Bill S117A.” Adopted August 10, 2022. https://www.nysenate.gov/legislation/bills/2021/S117.
• “Governor Hochul Signs Legislation to Honor and Support Holocaust survivors in Educational, Cultural, and Financial Institutions.” New York State. ny.gov.
  https://www.governor.ny.gov/news/governor-hochul-signs-legislation-honor-and-support-holocaust-survivors-educational-cultural
• “First-Ever 50-State Survey on Holocaust Knowledge of American Millennials and Gen Z Reveals Shocking Results.” The Claims Conference. September 16, 2020. https://www.claimscon.org/millennial-study/
• “Provenance Research Project.” The Metropolitan Museum of Art. https://www.metmuseum.org/about-the-met/policies-and-documents/provenance-research-project.
• “Provenance Research.” The Guggenheim. https://www.guggenheim.org/about-the-collection/provenance-research, last visited on Apr. 25, 2023.

1. U.S., New York State Senate, Senate Bill S117A, https://www.nysenate.gov/legislation/bills/2021/S117, last visited on Apr. 25, 2023. ↑
2. Hickley, Catherine, “Has New York’s law aimed at identifying Nazi-looted art in museums worked?,” The Art Newspaper, April 7, 2023, https://www.theartnewspaper.com/2023/04/07/new-york-nazi-looted-art-museums-setbacks. ↑
3. An act to amend the education law, in relation to notice of art stolen during the Nazi era in Europe, S. 117A, 2021-2022 Leg. Sess. (N.Y. 2022). ↑
4. N.Y. Educ. Law § 233-aa, at 15 (McKinney); see also id. at 1(a): Museums are defined as “any institution, including but not limited to museums, historical societies, zoological gardens, aquariums, botanical gardens, and arboreta, having collecting as a stated purpose in its charter, or owning or holding collections, or intending to own or hold collections, that is a governmental entity or not-for-profit corporation. The term museum does not include the state museum.” ↑
5. N.Y. Educ. Law § 233-aa (McKinney). ↑
6. Id. ↑
7. Id. ↑
8. Id. ↑
9. Id. ↑
10. New York State Government, Governor Hochul Signs Legislation to Honor and Support Holocaust Survivors in Educational, Cultural, and Financial Institutions, (August 10, 2022) https://www.governor.ny.gov/news/governor-hochul-signs-legislation-honor-and-support-holocaust-survivors-educational-cultural. ↑
11. Claims Conference, First-Ever 50-State Survey on Holocaust Knowledge of American Millennials and Gen Z Reveals Shocking Results, , (September 16, 2020) https://www.claimscon.org/millennial-study. ↑
12. ↑ Luke Tress, New York law on Nazi-looted art aims to shine light on lesser-known Holocaust evil, New York State Senate, (Sept. 2, 2022) https://www.nysenate.gov/newsroom/in-the-news/anna-m-kaplan/new-york-law-nazi-looted-art-aims-shine-light-lesser-known.
13. New York State Government, supra note 10. ↑
14. N.Y. Educ. Law § 233-aa (McKinney). ↑
15. Jennifer Anglim Kreder, Fighting Corruption of the Historical Record: Nazi-Looted Art Litigation, 61 U. Kan. L. Rev. 75 (2012). ↑
16. The Met, Nazi-Era Provenance Research, https://www.metmuseum.org/policies/nazi-era-provenance-research, last visited Apr. 20, 2023; the Met, Collection / Restituted Works in the Collection / 53 records, https://www.metmuseum.org/art/object-package?pkgids=324&rpp=60&pg=1, last visited Apr. 20, 2023. ↑
17. The Met, The Parc Monceau, https://www.metmuseum.org/art/collection/search/437108?&pkgids=324&ft=*&offset=0&rpp=20&pos=15, last visited Apr. 20, 2023. ↑
18. The MET, The Parc Monceau: Provenance, https://www.metmuseum.org/art/collection/search/437108?&pkgids=324&ft=*&offset=0&rpp=20&pos=15, last visited Apr. 20, 2023. ↑
19. Id. ↑
20. Id. ↑
21. N.Y. Educ. Law § 233-aa (McKinney). ↑
22. Schoeps v. Museum of Mod. Art, 594 F. Supp. 2d 461 (S.D.N.Y. 2009); see also Patty Gerstenblith, Art, Cultural Heritage, and the Law: Cases and Materials, 756-57 (Carolina Academic Press, 4th ed. 2019). ↑
23. Schoeps v. Museum of Mod. Art, 594 F. Supp. 2d 461 (S.D.N.Y. 2009); see also Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, 205 (Ankerwicke, 2017). ↑
24. Gerstenblith, supra note 24; The Guggenheim, Pablo Picasso: Le Moulin de la Galette, https://www.guggenheim.org/artwork/3411, last visited Apr. 20, 2023; MoMA, Pablo Picasso: Boy Leading a Horse, https://www.moma.org/collection/works/79994, last visited Apr. 20, 2023. ↑
25. O’Donnell, supra note 25, at 9, 204. ↑
26. Id. ↑
27. Id. ↑
28. The Guggenheim, Provenance Research, https://www.guggenheim.org/about-the-collection/provenance-research, last visited on Apr. 25, 2023. ↑
29. N.Y. Educ. Law § 233-aa (McKinney). ↑
30. Maysoon Khan, New York museums to disclose artwork looted by Nazis,” The Seattle Timest, September 16,

    2022, https://www.seattletimes.com/nation-world/new-york-museums-to-disclose-artwork-looted-by-nazis, last visited on Apr. 25, 2023. ↑

31. N.Y. Educ. Law § 233-aa (McKinney). ↑
32. Id. ↑
33. U.S. Const. amend. I; see also Russell L. Weaver & Catherine Hancock, The First Amendment: Cases, Problems and Materials, 538 (Carolina Academic Press, 2020). ↑
34. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). ↑
35. Id. ↑
36. Id, at 634. ↑
37. Marc Masurovsky, The Current State of Nazi-Era Provenance Research in Provenance Research

    Today (Arthur Tompkins ed., 2021). ↑

The post Labeling Misappropriated Nazi-Era Art: Issues with Compelling Signage at New York Museums appeared first on Center for Art Law.

By Sophia Williams

In April 2023, to explore how immigration issues intersect with the world of the arts, Center for Art Law hosted a series of virtual events – a clinic, workshop, and colloquium – surrounding the topics of immigration, visas for artists and contribution of immigrant artists. The “Visual Arts Immigration Clinic” paired artists with the Center’s network of volunteer attorneys for consultations on immigrant visas for artists. In a workshop, titled “Being Extraordinary: Crafting an O-1 Visa Petition” participants heard an overview of the process of applying for an O-1 visa for those of “extraordinary ability,” which many international artists use to immigrate and obtain permission to work within the United States. In the colloquium, “Considering Cultural Integration: Immigrant Contribution to the Arts,” an academic shared her research into arts participation in immigrant communities and the social impact of those artists.

The “Visual Arts Immigration Clinic,” on April 12, 2023, began with a keynote address from Edwin M. Hernandez Garcia. Hernandez Garcia, an Associate in the Immigration Group at Tarter Krinsky & Drogin, introduced the O-1 visa, whose awardees are “Individuals with Extraordinary Ability or Achievement,” and the role of the visa in providing a pathway for many talented international artists to petition to live and work within the U.S. Hernandez Garcia highlighted that there are multiple ways applicant artists may present “extraordinary” abilities.

Following Hernandez’ keynote, artists met with volunteer attorneys in one-on-one private consultations, to discuss their circumstances and concerns, and receive guidance on the visa application process. The attorneys addressed individual questions that artists brought to the sessions based on their work and resumes. The volunteer attorneys, with specializations in immigration or employment law, included Cielomar Puccio, an attorney of Brandlett, licensed in D.C. and Puerto Rico, Heidi Son, Senior Counsel, Head of Business Immigration at Murray Osorio, PLLC, and Raquel Linda Trujillo-Oria, Owner & Managing Partner of Tru Law USA.

Elektra Yao, founder and principal attorney of a firm dedicated to international and domestic artists, Yao Group, led the workshop “Being Extraordinary: Crafting an 0-1 Visa Petition,” which took place on April 17, 2023. Tailored toward an audience of artists, and lawyers interested in immigration issues, Yao walked attendees through the process of applying for and obtaining an O-1 work visa. Yao provided a thorough introduction to the requirements, and steps, for the application process for the visa. She presented a checklist outlining the technical components of the O-1 visa, including, for visual artists, a portfolio, an itinerary of the plan for expected work while in the U.S. and any contracts for future projects, and recommendation letters from experts within the field. Yao also shared a toolkit for hopeful O-1 visa applicants, with suggestions of strategies artists can undertake to strengthen their prospect of successful petitions. For example, one way of increasing one’s online presence as an artist, which may be helpful in ultimately generating press materials and examples of recognition of one’s artwork, is by publishing information and writings about artworks on sites like Medium or creating videos on streaming sites like TikTok, where artists may self-publish to the platforms and expand their community of readers and viewers. One crucial point Yao stressed was what the definition of being an “artist with extraordinary ability” entails. Yao shared that she works with a broad breadth of people engaged with artistic pursuits, not only visual artists, but creatives who are tattoo artists, makeup artists, nail technicians, chefs, or OnlyFans models. Art is expansive, and artists need not be traditional to be extraordinary.

Dr. Jennifer Novak-Leonard, author of Considering Cultural Integration in the United States: Empirical Essays on Immigrants Arts Participation gave a lecture on April 19, 2023, “Considering Cultural Integration: Immigrant Contribution to the Arts.” Dr. Novak-Leonard is a Research Associate Professor and Research Director of the Arts Impact Initiative in the College of Fine and Applied Arts, whose work focuses on the social roles of arts, artists, and creativity; how they impact people and communities; and implications for policy and practice. She explores methods of measuring cultural participation in immigrant communities, and how personal and public values develop from creative experiences and in turn can inform public and social policy.

Dr. Novak-Leonard’s talk explored her research into the question, ‘How are immigrant societies contributing to American society at large?’ She noted that an antiquated answer was a theory of assimilation for immigrants to arrive at social cohesion, which emphasized cultural assimilation as a route to upward mobility. Novak-Leonard contrasted this historical perspective with current thinking, which posits that the focus should be on integration, not assimilation, for which new strategies are needed. This new thinking emphasizes that holding onto individuals’ identity, cultural values, and norms is integral to their success and the success of their families. Little is known about creative expression as a strategy for cultural integration, which her work considers.

According to Novak-Leonard, the notion of “arts participation” as a means of civic engagement and cultural integration should be investigated. This could include going to museums, writing, or arts making – these are activities that are understood as positive. Her presentation discussed the numerous benefits arts participation has for integrating into a new society as an immigrant, such as enabling social interactions through dialogue; exposure to new ideas, spaces, and ways of being; and the experience of active participation and creating art as a means of civic engagement. Also, arts participation may enable dual cultural identities and multiculturalism – immigrants can develop, share and express their own personal and cultural experiences.

Sponsored by the National Endowment of the Arts, the Survey of Public Participation in the Arts (SPPA) is a key way to measure arts participation in the U.S. and in immigrant communities, which has an impact on policy. Novak-Leonard discussed how changes to the survey may better measure information about arts participation. One improvement she suggested during the talk was for SPPA questions to be more expansive, to encompass the multitude of ways people engage in creative expression. There may be a gap between what people report as ‘arts participation’ and the reality of what they do. For example, gardening, culinary endeavors, participating in parades, and consuming and creating media, may be forms of artistic expression, but survey respondents may not understand and report these activities as ‘arts participation.’ Thus, rephrasing the questions to correspond to a more expansive definition of arts-based activities may better represent how immigrant communities participate in the arts. These changes might ultimately allow researchers to garner more accurate information about how people in the U.S., including immigrants, engage with the arts, which can, in turn, strengthen arts public policy.

The clinic and workshop provided valuable and specific information on the processes for artists to travel to and engage in creative production within the U.S., through both group discussions and 1:1 consultations. The colloquium illuminated important research strategies for understanding how creative activities facilitate the integration of immigrants, and how immigrants contribute to the country’s citizenry. This conversation offered a snapshot of research strategies conducted to learn about this topic and ideas for improving the knowledge of how arts participation impacts individuals within social structures. As the country evolves, and becomes increasingly diverse, it’s ever important to consider, probe, and discuss the presence of creative expression throughout this multicultural country and its communities.

The Visual Arts Immigration Clinic and programming brought in 34 participants and 3 volunteer immigration attorneys from over four countries including the United States, Iran, China and India. The participants and attorneys enjoyed the sessions including the “through and in-depth knowledge” provided during the one-on-one consultations for the O-1 visa. Read more about the Immigration Clinic and associated programming HERE. Contact the Center for Art Law if you would like to become a volunteer attorney or professional or would like to be involved in our Visual Artists’ Legal Clinics.

Select Resources from the Handout and Materials of the Clinical Programming Articles, Essays & Books

• Sunil Iyengar, Taking Note: Immigrant Participation in the Arts, National Endowment for the Arts (2017).
• Jennifer Novak-Leonard, Considering Cultural Integration in the United States, Empirical Essays on Immigrants’ Arts Participation.
• K. Punk Winichakul, Ning Zhang, Enter Stage Left: Immigration and the American Arts, (Department of Economics Discussion Paper Series, University of Oxford) (Dec , 6, 2022).
• The Changing Face of Creativity in New York, Center for an Urban Future (2020).
• U.S. Patterns of Arts Participation: A Full Report from the 2017 Survey of Public Participation in the Arts, National Endowment for the Arts (2017)
• Bridging Divides, Creating Community: Arts, Culture, and Immigration, Welcoming America.
• Creative Placemaking & Welcoming: Tips and Tools for Integrating Arts, Culture, and Immigration, Welcoming America.

About the Author

Sophia Williams, Center for Art Law Spring 2022 intern, is interested in legal issues surrounding the commercial art world, artist rights, and illicit markets. Sophia graduated from Princeton University with a B.A. in Architecture and Urban Studies and has since worked in NYC at an auction house and art gallery. In the summer of 2022, she was a post-graduate certificate student in art crime and cultural heritage protection at the Association for Research into Crimes Against Art (ARCA) in Amelia, Italy.

The post WYWH: A Series of Talks and Workshops in Immigration Participation in the Arts appeared first on Center for Art Law.

The post DAOs in the Art World: From the U.S. Constitution to NFTs appeared first on Center for Art Law.

The post Innovations in Protecting Art and Design: Placing Mexico’s recent ban on cultural appropriation in greater context appeared first on Center for Art Law.

EDUCATION

The University of Kansas, M.A. Political Science; M.A. Art history.

University of Nebraska at Omaha, B.G.S., Political Science.

SELECT PUBLICATIONS

Wegener, Corine. “Rescuing heritage in’natural’disasters 1.” Cultural Heritage in Modern Conflict. Routledge, 2023. 267-288.

Wegener, Corine. “Museums in Crisis: Helping Our Colleagues and Their Museums in Need.” Museum International 67.1-4 (2015): 132-137.

Wegener, Corine. “The 1954 Hague Convention and preserving cultural heritage.” Archaeological Institute of America 19 (2010).

About Corine Wegner

Corine Wegener is the Director of the Smithsonian Cultural Rescue Initiative (SCRI), an outreach program for the preservation of cultural heritage in crisis situations. SCRI’s work has included projects in Haiti, Mali, Nepal, Iraq, Syria, and most recently Ukraine. Wegener has over 20 years of experience as an art historian, curator, and emergency responder for cultural heritage in crisis. As a U.S. Army Civil Affairs officer, she served on multiple deployments, including NATO peacekeeping operations in Bosnia (1997-1998) and as Arts, Monuments, and Archives Officer for the 352nd Civil Affairs Command in Iraq (2003-2004). As founding past president of the U.S. Committee of the Blue Shield, Wegener helped lead the successful campaign for U.S. ratification of the 1954 Hague Convention. As part of an MOU between the Smithsonian and the U.S. Army Civil Affairs and Psychological Operations Command, she co-leads the Army Monuments Officer Training (AMOT) training program. She is a principal investigator for the Conflict Observatory, a U.S. Department of State effort to document war damage to cultural heritage in Ukraine. Wegener has a BGS in Political Science from the University of Nebraska Omaha and MA degrees in Political Science and Art History from the University of Kansas.

The Center would like to thank Cori for taking the time to answer our questions, and more importantly for the inspiring work that she is doing day in and day out. This interview was edited and supplemented by Kameron-Jai Keel (NYLS, Class of 2024). 

THE INTERVIEW

Q: Regarding cultural targeting as a weapon of war, it’s clear that Russia is attacking monuments and cultural sites of Ukraine as a way to erase Ukrainian national identity. What can countries like the US (and other allies) do to aid Ukraine in the protection of their national sites? How does the fact that Russia is not a signatory to the 1954 Hague Convention^[1] affect any response? Is the US Committee of the Blue Shield^[2] involved in any way?

C: I think you’ll find that both Ukraine and Russia are States Parties to the 1954 Hague Convention and First Protocol. Ukraine is a States Party of the 1999 Second Protocol^[3], but not Russia.

The US Department of State Bureau of Conflict and Stabilization Operations is sponsoring the Conflict Observatory ,a resource that collects evidence that Russia perpetrated War Crimes in Ukraine. The Smithsonian Cultural Rescue Initiative, also known as the SCRI, is responsible for the cultural heritage portion of the project and is working with the Cultural Heritage Monitoring Lab at the Virginia Museum of Natural History and the University of Maryland Center for International Development and Conflict Management.

SCRI is also working with the Cultural Emergency Response of the Netherlands^[4] and the Heritage Emergency Response Initiative in Ukraine^[5] by providing funds for on the ground documentation and emergency response missions to museums and other cultural institutions. We are coordinating closely with the Ukrainian embassy to the US and the Ministry of Culture^[6].

There are also a number of other US museum initiatives that have aided Ukraine’s museums since the renewal of the conflict in February, such as the Ukrainian Museum in New York and the US National Holocaust Museum.

US Blue Shield is providing advice and assistance whenever possible, along with Blue Shield International.

Q. In your work with the Smithsonian’s Cultural Rescue Initiative, have you experienced governments or local leaders being reluctant to prepare cultural monuments and collections on the eve of conflict or disaster because they fear it seems defeatist or may lower public morale? What kind of difficulties do cultural heritage workers/professionals in areas of conflict have in getting resources or help from their governments?

C: In a word, yes. Waiting until the eve of a conflict is a common problem. Preparing by evacuating collections in public view may be considered to be a lack of confidence in the government and the country’s ability to defend itself. This happened with the Iraq National Museum and the staff sent colleagues home and evacuated to secret storage magazines within the museum. As you may imagine, a similar situation was true in Ukraine as the government was openly declaring that Russia would not invade.

Well, everyone has a hard time getting resources for cultural heritage, even in peacetime, so the situation is so much worse when the government is distracted by large scale military operations and attacks on civilian infrastructure.

Q. It has been said that UNESCO branding of a world heritage site^[7] may come with unintended negative consequences. These might include over-tourism, targeting for looters, or cultural targets in war. What are your thoughts on this?

C: UNESCO branding as a WHS probably does have many negative consequences as you mention. I have not made a particular study of it but I do know that the WH program receives the bulk of UNESCO funding when perhaps we should be looking to fund the other treaty programs such as the 1954 Hague Convention emergency fund, etc.

Q. How can we reconcile what many believe is the rightful return of objects with the potential safety risks of returning an object to a place that sees frequent conflict/instability?

C: I don’t believe the current stability of a country should be a factor in returning someone’s rightful property. If someone steals your car, the authorities can’t use the excuse that they should not return it to you because you live in a bad neighborhood and are likely to have it stolen again. You just can’t hold title to stolen property. This may be solved with long-term loan agreements and other protection arrangements, but only in an atmosphere of mutual trust.

Q: I understand you worked as an Arts, Monuments, and Archives officer in the US Army and assisted with the aftermath of the 2003 looting of the Iraq National Museum. Do institutions like the Smithsonian assist, for instance, law enforcement with investigations about possible looted works?

C: Yes, the Smithsonian is part of the Cultural Heritage Coordinating Committee ^[8] chaired by the U.S. Department of State Education and Cultural Affairs Bureau. The CHCC also includes law enforcement organizations that deal with illicit trafficking and we often help agents find expertise to identify potentially looted objects trying to enter the US.

Q. What cultural heritage is most at risk within the United States? While the US has ratified the 1954 Hague Convention, what actions or structures has the US government put in place to fulfill their obligations under the treaty? Why, in your opinion, has the US not joined in the first and second protocols?

C: I’d say the most at-risk cultural heritage in the US is anything located near the coasts and other bodies of water where the impacts of climate change and extreme weather events are becoming worse every day.

I’d say the US has made quite a lot of progress in implementing the 1954 Hague Convention since ratification in 2009. The U.S. Army Civil Affairs and Psychological Operations Command is partnering with the Smithsonian to help recruit and train the next generation of Monuments Officers. We just concluded an in person training in August and the future looks bright for the program.

The lack of US ratification of the 1^st Protocol has much to do with the strength of the antiquities lobby in the US to lobby against it. I think we may have a shot at ratification of the Second Protocol at some point in the next few years.

Q. Is “heritage at risk”^[9] always a factor in marking or preserving heritage in the US today?

C: Not sure. I don’t do that much work with how US sites are designated or marked

Q: In the growing field of cultural heritage as a profession and in the rise of public interest in world heritage – do you foresee greater reliance/enforcement on treaties such as the Hague Convention? In your opinion, how well do some countries uphold their obligations under the Hague Convention?

C: Many countries have a long way to go to fully implement 1954 Hague, however it is still the best instrument we have on the international front. Just think how few legal instruments and frameworks there are about damage to cultural heritage from naturally-caused disasters! In most cases heritage is not even considered in disaster risk management plans locally or nationally. Even when it is considered, CH is usually deferred in the response plan and must wait until the recovery phase.

Q. What role do you see lawyers working in within the field of cultural heritage preservation? Do you work with attorneys in your position at the Smithsonian or initiatives with the US Committee of the Blue Shield?

C: I don’t work much with attorneys at the Smithsonian other than to approve my contracts with heritage institutions and professionals. We do consult legal advice in our work for the Conflict Observatory. The current president and co-founder of the U.S. Committee of the Blue Shield IS a lawyer, Dr. Patty Gerstenblith, so we have been lucky as we do need her expertise on a regular basis! I do think lawyers are a critical part of the field of cultural preservation.

Q. How can students and aspiring heritage professionals get experience working in the field before they join the working world?

C: The old-fashioned way. Internships, fellowships, and joining groups like the Lawyers Committee for Cultural Heritage Preservation.

Q. What is the intended purpose of the documentation that organizations like Heritage Emergency Response Initiative collect?

C: HERI’s documentation will be used to support salvage, stabilization and recovery efforts as well as provide evidence for potential accountability such as criminal prosecutions.

Q. What would happen if instead of funding for cultural heritage, donors contributed to a humanitarian organization such as the Red Cross?

C: I am asked that question frequently and my answer is, “Why can’t we have both?” I think it is a false choice and there are donor organizations that give funds for both causes. Culture is a human right and people deserve to receive humanitarian aid AND help saving their cultural heritage and identity.

Some Parting Thoughts:

the institutions created to preserve cultural heritage cannot work without the help of the public, regardless of the country to which you reside in, to continue to show interest, and educate themselves on their issues. Preserving cultural heritage is a continuation in the development of humanity. In a constant state of unprecedented times and times of war, current institutions look back to their predecessors such as the Hague Convention and its 1999 supplement to build a stronger defense of the disintegration of cultures due to looting, and antiquities trafficking in times of war.

Read More about the Hague Convention and Wartime trafficking:

• Hague Convention Abstract: Hague Convention:…Protection…in the Event of Armed Conflict, Getty (1954)
• UNESCO Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict | UNESCO (1999)
• Nemtsova, Anna How Russia Looted Ukraine’s Art Treasures , The Atlantic (2023)
• Fannen, Molly The looting of cultural heritage has been happening since the very existence of cultural heritage, it is not anything new, but what we see now is that looting has become highly organized – WCO (2016)
• Blumenthal, Ralph and Tom Mashberg, “The Army Is Looking for a Few Good Art Experts,” TNYT (Oct. 21, 2019), available at https://www.nytimes.com/2019/10/21/arts/design/new-monuments-men.html

1. 1954 Convention of Protection of Cultural Property in the Event of Armed Conflict, also known as the Hague Convention. ↑
2. Committee formed in 2006 for the prevention of destruction, damage and theft of cultural property in the time of war and natural disasters. ↑
3. Supplements the original Hague convention. ↑
4. Organizes locally orchestrated protection of cultural heritage that is under threat. ↑
5. Initiative created to preserve cultural heritage in times of war and support post war recovery. ↑
6. Ministries of Culture are responsible for cultural policy and and protection of a country’s heritage and expression. ↑
7. Legally protected sites that have cultural, scientific, or some other form of significance. ↑
8. Cultural Heritage Coordinating committee, CHCC, coordinates efforts to fight trafficking of antiquities, trafficking networks, and protect and preserve cultural history and combat looting. ↑
9. Sites at risk because of decay, neglect, over-development or tourism ↑

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By Natalie Glitz Grumhaus

There are many reasons that a nonprofit foundation may feel the need to dissolve.^[1] When James and Charlotte Brooks Foundation decided to fully dissolve in 2015, only five years after its founding in 2010, they donated most of the Brooks’ artwork to a local art museum, the Parrish, as a way to further the Foundation’s purpose as an artist-endowed institution, dedicated to the Long Island arts community.^[2] Another organization, the Urban Institute of Contemporary Arts in Grand Rapids, Michigan, dissolved in 2014, so that it was no longer a distinct organization and merged with Ferris State University due to unsustainable funding shortages.^[3]The Holt Smithson Foundation, which is currently in operation, is a unique example of a nonprofit organization with a termination date written into the founding documents: it is set to terminate in 2038, one century after the wife-husband team of artists Nancy Holt (1938-2014) and Robert Smithson (1938-1973) were born.^[4] Knowing how and when to dissolve a foundation is often even more important than setting one up so as to make the most of all assets owned by the foundation and fulfill the requirements of state and federal law.^[5]

This article will explore the process of dissolving a nonprofit foundation in the US, including the legal and regulatory requirements, as well as some best practices for ensuring a smooth and ethical dissolution. In order to better understand our case studies, this article will specifically examine New York’s and Michigan’s state processes.

State and Federal Forms and Processes to Dissolve Nonprofit Organizations

Beyond the difficult decision to terminate the operations of a nonprofit organization between the board of directors and the process of distributing the assets, there are a number of complex and often interrelated federal and state forms involved.

Most of the forms, both federal and state, ask questions regarding the organization’s assets and how the board plans to distribute them. Distribution can be accomplished in different ways, depending on the desires of the board and the nature of the assets. Two common ways are by making an outright gift of any assets to another (or multiple) organization or individual, or by “spending down.” Spending down means that the organization continues spending money in the same way it has before, such as giving grants, but simply doing so at an accelerated rate.^[6] Unfortunately, many other nonprofits rely on continuing grants from grantmakers, so the “spend-and-close” style of grantmaking is not a sustainable source of funding, especially for nonprofit organizations in niche areas.^[7]

Internal Revenue Service

The actual process of dissolution is primarily a state process. Although the IRS must be notified of the dissolution of any nonprofit organization, including foundations, the process really is just one of notification. If the state procedures have been correctly followed, no new research or actions will need to be taken. When filing that year’s annual report, the filer simply checks the box for “Final Return” (for Form 990-PF) or “Terminated” (for Forms 990 and 990-EZ) to officially notify the IRS of the change in corporate status.^[8]

For standard nonprofit organizations filing Forms 990 and 990-EZ, there is another question clarifying by what means the nonprofit dissolved. In addition, there is the requirement to fill out Schedule N, regarding the distribution of its assets and whether there were successor organizations and any “officer, director, trustee, or key employee” involved in them.^[9] The organization is also required to attach to their final return copies of their dissolution documents, which may include “articles of dissolution or merger, resolutions and plans of liquidation or merger.”^[10]

For private foundations filing Form 990-PF, there is no schedule that needs to be filled out. Rather, the IRS simply requires an attachment to the return that includes a specific description of all assets distributed or otherwise disposed of, as well as copies of all liquidation plans and filings or supplements that had not been previously submitted.^[11]

For organizations not required to file annual returns, the information requested is substantially the same as those above, but the organization is to submit it directly to the Tax Exempt and Government Entities Office.^[12]

State of New York

In New York, all charitable organizations are regulated by the Charities Bureau, a section of the Attorney General’s office, from beginning to end.^[13] All filings are done through the Attorney General’s office directly, though, as the Charities Bureau exists primarily as a supervisory body. All nonprofit organizations, including foundations, are also governed under the Not-For-Profit Corporation Law, as amended by the Nonprofit Revitalization Act, passed in 2013.^[14]

There are two different procedures to follow for a dissolving nonprofit corporation, depending on whether the corporation owns assets or not.^[15] If the nonprofit owns no assets greater than $25,000, in total, it may file what is called a “Simplified Dissolution,” as though it had no assets. The Charities Bureau actually provides a guide for all New York nonprofit corporations to follow when undertaking the dissolution process.^[16] According to this guide, the board of directors (and members, if it is a membership-based organization) must unanimously approve a plan of dissolution, which may include documents such as government approval of the dissolution or the agreement of any organizations receiving any assets to the purpose for which they were intended, and prepare and submit a Verified Petition to the Attorney General and the NY Supreme Court.^[17] The corporation must then carry out the plan within 270 days of being granted approval by the Attorney General or the Court.^[18] Corporations that “did business” in New York City also need the approval of the Commissioner of Finance of New York City.^[19] Once all petitions have been submitted, and the plan for dissolution has been completed, the NY Attorney General’s office will endorse the Certificate of Dissolution and return it to the corporation, which then files it with the state, and later files its final annual and financial report with the Charities Bureau. It is then officially dissolved.^[20]

The guide from the Attorney General provides several samples for documents needed throughout the process, as well as a checklist of documents needed to send to the Attorney General to fulfill state requirements.^[21] The majority of information in the documents is meant to pertain to what assets are owned by the corporation and how they will be distributed upon dissolution.

The Attorney General makes publicly available all approvals of nonprofit dissolutions through the Charities Transaction Search.^[22] However, requests for the plans of dissolution or other documents associated with the dissolving nonprofit organization must be officially requested through FOIL.^[23]

State of Michigan

In Michigan, the Licensing and Regulatory Agency handles all corporation matters, including nonprofit organizations, and both nonprofit organizations and foundations are governed by the 1982 Nonprofit Corporation Act.^[24] As in both the federal and New York State requirements, the questions on the Michigan forms mostly deal with distribution of assets. However, Michigan’s process is much more straightforward. The state provides a short (3-page) questionnaire that the nonprofit organization wishing to dissolve provides to the Attorney General in order to obtain a letter of approval for dissolution, which is then filed with the Department of Licensing and Regulatory Affairs.^[25]

While the organization does still need to obtain many of the same documents discussed previously (plan of dissolution, approval of board and/or members, financial returns, etc), the process of actually filing for dissolution in Michigan is quite simple. Regarding publicity of the dissolution plans, the questionnaire submitted to the attorney general is available upon request, along with any other documents submitted by the organization.^[26]

The nature of charitable organizations is an interesting point in this discussion. As can be seen in the case studies below, the only organization that is not an artist-endowed foundation (AEF) is the Urban Institute of Contemporary Art, a museum. Artists tend to endow foundations in the places they live: big cities, like New York, LA, or Chicago, or warm areas of the country where many retire, like Florida, Arizona, or New Mexico. As there are very few AEFs in the U.S.,^[27] it stands to reason that states like Michigan that are neither artistic hubs nor popular retirement states will be unlikely to have any major AEFs.^[28]

Case Studies

The James and Charlotte Brooks Foundation was established in 2010 in New York City to house the Brooks’ artwork after James and Charlotte’s deaths in 1992 and 2010, respectively.^[29] The two artists were abstract expressionists who were a part of the artist community in The Hamptons on Long Island, NY, and cared greatly for the community and the area.^[30] The Foundation was not meant to be a grantmaking organization but simply to care for their art and house it. The Parrish Art Museum is an art museum whose mission is dedicated to the East End of Long Island, and so, in what has been called a “rare move,” the Foundation decided to give the entirety of the Brooks’ artwork, the Foundation’s archives, and all other assets to the Parrish in order to better support the community that the two artists loved so much.^[31]

The Foundation’s assets were valued at “more than $6.5 million at the end of 2015,” including the 89 works by James and Charlotte.^[32] The Foundation also instructed the Parrish to sell some of the paintings donated to it in order to raise money to create a research grant.^[33] While this final gift of art and archives was not the Foundation’s only gift of art, as it had previously donated 170 works to other institutions, this was its most significant and concentrated. As the president of the Brooks Foundation said, this was an “innovative” method of dissolving the foundation and it would “stand as a model for how small artist foundations can fulfill their mission by collaborating with museums in new ways.”^[34]

In Michigan, the Urban Institute for Contemporary Art closed for good in 2023.^[35] However, at the time the Institute closed, it was no longer an individual nonprofit organization. It had dissolved and merged with the Kendall College of Art and Design, at Ferris State University.^[36] That dissolution was due to funding shortages and insurmountable debt to the tune of $4 million.^[37] Much of this debt was due to an investment in a new building in 2011 that cost the organization $13 million, from which it never really recovered as its only income was from membership and attendance.^[38] On the Institute’s final IRS return, one of its fundraisers actually reported a significant net loss. The Institute became a wholly owned subsidiary of Ferris State University, and its board disbanded in accordance with the standard dissolution procedures.^[39] Regarding distribution of its assets, the university acquired all assets, valued at $9,084,420 according to book value on the final return. Unfortunately, the dissolution and merger with the university did not save the financial status of the Urban Institute for Contemporary Art, and the pandemic finally, and sadly, crushed it.^[40]

Finally, some foundations may see their termination as an essential part of their mission from the very beginning. The Holt Smithson Foundation is one such organization. Its founding was conceptualized in 2014 by Nancy Holt upon her death to honor the artistic legacies of herself and her husband, Robert Smithson, and officially founded three years later.^[41] Holt and Smithson were contemporary artists and writers, famous for pushing the boundaries of art with famous earthworks like Sun Tunnels^[42] and Spiral Jetty,^[43] among other styles of contemporary art. The Holt Smithson Foundation was officially established in 2017 as a 501(c)(3) artist-endowed foundation, led by executive director Lisa Le Feuvre in Sante Fe, New Mexico.^[44] Le Feuvre commented in a 2019 interview about the purpose of terminating the foundation in 2038, only about 20 years after its official founding, was that “we’d rather put our limited resources into doing things really well over 20 years than over 50. … From a philosophical point of view, the role of the foundation is to get people to talk about these artists. One of the measures of its success will be that it becomes obsolete.”^[45] Unfortunately, the leadership of the Holt Smithson Foundation has not made its plan for dissolution and distribution of its assets, including title to the many artworks in their possession, public.

Conclusion

The foundations presented and discussed in this article dissolved (or will dissolve) for various reasons. In theory, dissolution happens when the Foundation’s work is finished and they can do no more. However, as the James and Charlotte Brooks foundation has shown, nonprofits and foundations that plan for and properly execute a dissolution can provide new life for another foundation or other nonprofit organization to carry on.

Suggested Reading:

For a description of best practices when dissolving a nonprofit corporation:

https://www.councilofnonprofits.org/running-nonprofit/governance-leadership/dissolving-nonprofit-corporation.

For practical considerations regarding artist-endowed foundations: https://www.aspeninstitute.org/wp-content/uploads/2010/11/AEF_V2.pdf

About the Author

Natalie Glitz Grumhaus is a law student at Michigan State University College of Law, graduating May 2023, and received her B.A. in Philosophy and Fine Art from Hillsdale College in 2020. Natalie was a Spring 2023 legal intern with the Center for Art Law.

Disclaimer:

The information provided in this article is for general informational purposes only and does not constitute legal or financial advice. Laws regarding nonprofit dissolution can vary depending on the state or country in which the organization operates, as well as the specific circumstances of the organization. Therefore, this article should not be relied upon as a substitute for professional advice from a licensed attorney or accountant. Neither Natalie Glitz Grumhaus nor The Center for Art Law, nor any of its associates, shall be liable for any loss or damage arising out of, or in connection with, the use of this article.

1. Such reasons can come from external environmental factors that are often entirely out of the control of the nonprofit, not just from the more apparent internal reasons that will be discussed at greater length in this article. See Tim Delaney & Amy Silver O’Leary, Rising Interest in Nonprofit Dissolutions & Mergers, Nat’l Cncl. Nonprofits (Feb. 16, 2022), https://www.councilofnonprofits.org/articles/rising-interest-nonprofit-dissolutions-mergers (discussing the rise in nonprofit dissolutions and mergers during and after the Covid-19 pandemic). See also Kim Wright-Volich & Christopher W. Geison, Breaking Up Is (Not So) Hard to Do, Penton Media (2008) https://www.schwabcharitable.org/public/file/P-5282719/Breaking-Up-Is-Not-So-Hard-to-Do.pdf (discussing many other reasons why private foundations may need to close). ↑
2. Andrew Russeth, James and Charlotte Brooks Foundation Donates Art Holdings, Archives to Parrish Art Museum, ARTnews (Aug. 29, 2017) https://www.artnews.com/art-news/news/james-and-charlotte-brooks-foundation-donates-art-holdings-archives-to-parrish-art-museum-8897. ↑
3. Jeffrey Kaczmarczyk, Urban Institute for Contemporary Arts Announces Merger with Kendall College of Art and Design, MLive (Aug. 23, 2013) https://www.mlive.com/entertainment/grand-rapids/2013/08/urban_institute_for_contempora_16.html. ↑
4. Holt Smithson Foundation, Mission, https://holtsmithsonfoundation.org/mission (last visited April 5, 2023). ↑
5. See Benjamin Takis, The Basics of Nonprofit Dissolution, Nonprofit Accounting Basics, https://www.nonprofitaccountingbasics.org/governance/basics-nonprofit-dissolution, last updated Sept. 29, 2021. ↑
6. David Cay Johnston, As More Foundations Choose to Spend Down, Charities Worry About Future Funding, Candid (Nov. 13, 2009) https://philanthropynewsdigest.org/news/as-more-foundations-choose-to-spend-down-charities-worry-about-future-funding. ↑
7. Id. ↑
8. Internal Revenue Service, Termination of an Exempt Organization, https://www.irs.gov/charities-non-profits/termination-of-an-exempt-organization (last visited Mar. 25, 2023). ↑
9. Id. ↑
10. Id. ↑
11. Id. ↑
12. Id. ↑
13. New York State Office of the Attorney General, Charities Bureau, https://www.charitiesnys.com (last visited Mar. 25, 2023). ↑
14. N.Y. Not-For-Profit Corporation Law § 715-B (McKinney 2013). ↑
15. Office of the New York State Attorney General: Charities Bureau, Voluntary Dissolution of Not-For-Profit Corporations with Assets (2018), found at https://www.charitiesnys.com/pdfs/dissolution_with_assets.pdf. ↑
16. Id. ↑
17. Id. ↑
18. Id. ↑
19. Id. ↑
20. Id. ↑
21. Id. ↑
22. Charities NYS, Welcome to Charities Transaction Search, https://charitiesnys.com/Transactions/jsp/index.jsp (last visited Apr. 12, 2023). ↑
23. New York State, Freedom of Information Law, https://otda.ny.gov/legal/foil (last visited Apr. 12, 2023). ↑
24. Licensing and Regulatory Affairs, Domestic Nonprofit Corporation, https://www.michigan.gov/lara/bureau-list/cscl/corps/corporations/types/domestic-nonprofit-corporation (last visited Mar. 25, 2023); Nonprofit Corporation Act, Mich. Comp. Laws § 450.2101 (1982). ↑
25. State of Michigan Department of Attorney General, Dissolution Questionnaire, https://www.michigan.gov/-/media/Project/Websites/AG/charities/fundraisers/f021mast_dis_quest.pdf?rev=5e8b3b152fa7404ab5e358557d850699, last updated Mar. 26, 2015. ↑
26. Id. ↑
27. There are only 433 Artist-Endowed Foundations in the United States, out of approximately 1.5 million total charitable organizations. Christine J. Vincent, The Artist as Philanthropist: Study Report Supplement 2018, Artist Endowed Foundation Initiative, The Aspen Institute (2018) https://www.aspeninstitute.org/wp-content/uploads/2019/02/aefi-2018-supplement-exec-summary.pdf; The Nonprofit Sector in Brief, National Center for Charitable Statistics (June 18, 2020) https://nccs.urban.org/project/nonprofit-sector-brief. ↑
28. The only AEFs located in Michigan, as of 2018, were the Alden and Vada Dow Fund, the Alden B. and Vada D. Dow Creativity Foundation, and the Marshall M. Fredericks Sculpture Museum. Vincent, supra note 27, p. 96, 109. ↑
29. Russeth, supra note 2; see also Foundation Directory, James and Charlotte Brooks Foundation, Candid, https://fconline.foundationcenter.org/fdo-grantmaker-profile?collection=grantmakers&activity=result&key=JAME616&view_format=compact&_gl=1*1tbpork*_ga*NTI1NjUwMDEyLjE2Nzc3OTY1NTI.*_ga_5W8PXYYGBX*MTY3OTc4MzcwNi4yLjAuMTY3OTc4MzcwNy41OS4wLjA.&_ga=2.117280646.1004583318.1679783707-525650012.1677796552 (last visited Mar. 25, 2023). ↑
30. Russeth, supra note 2. ↑
31. Russeth, supra note 2. ↑
32. Candid, supra note 28. ↑
33. Candid, supra note 28. ↑
34. Pat Rogers, James and Charlotte Brooks Given, in Entirety, to Parrish Art Museum, Hamptons ArtHub (Aug. 9, 2017) https://hamptonsarthub.com/2017/08/29/news-james-and-charlotte-brooks-foundation-in-entirety-given-to-the-parrish-art-museum. ↑
35. Benjamin Sutton, Michigan contemporary art museum will close permanently due to funding shortages exacerbated by the pandemic, The Art Newspaper (Dec. 9, 2022) https://www.theartnewspaper.com/2022/12/09/urban-institute-contemporary-arts-grand-rapids-closing-permanently. ↑
36. Kaczmarczyk, supra note 3. ↑
37. Kaczmarczyk, supra note 3. ↑
38. Lindsey Smith, State’s Largest Contemporary Art Center Merges with Ferris State University, Michigan Radio (Aug. 23, 2013) https://www.michiganradio.org/arts-culture/2013-08-23/states-largest-contemporary-art-center-merges-with-ferris-state-university. ↑
39. Id. ↑
40. Kaczmarczyk, supra note 3. ↑
41. Holt Smithson Foundation, supra note 4. ↑
42. Holt Smithson Foundation, Sun Tunnels Film, https://holtsmithsonfoundation.org/sun-tunnels-film (last visited Apr. 6, 2023). ↑
43. Holt Smithson Foundation, Spiral Jetty, https://holtsmithsonfoundation.org/spiral-jetty (last visited Apr. 6, 2023). ↑
44. Alan Gilbert, Full Circle: The Holt/Smithson Foundation, Brooklyn Rail (Dec. 2020), https://brooklynrail.org/2020/12/artonic/Full-Circle-The-HoltSmithson-Foundation. ↑
45. Id. ↑

The post Dissolution of Nonprofit Foundations appeared first on Center for Art Law.

By Nicky Frankel

From Yoko Ono’s demonstration of compliance in her work Cut Piece (1964) to Gina Pane’s display of Vietnam War rebellion in Escalade non Anesthésiée (1971) (Unanesthetized Escalation), performance art uses the human body as a medium for the creation of statements regarding class, race, gender, society, and political issues. However, the intangible nature of this art form, non-traditional in both its inception and execution, and its popularity in the modern art world raise concerns over the rights of performing artists with regards to intellectual property and copyright law.

Performance Art vs Performing Arts

Though it has no strict definition, performance art is a combination of both visual art and performance that is created to be carried out before an audience and, while it can be recorded as performing arts can, is intended to act as a live representation of the artist’s expression.^[1] These recordings are not only used for documentation purposes but can also be an artistic decision meant to freeze the moment in time.^[2] A temporal experience, performance art is reliant on audience participation and regularly, but not necessarily, includes the artists themselves in the exhibition. This, in part, differentiates performance art from the performing arts (such as music, comedy routines, dance, and theater), in which individuals–other than the work’s creator or audience–are utilized to communicate a distinct message. Rather than using bodies to portray a story, in performance art pieces, the body is art. Another differentiating factor is the interdependence fostered between the work’s creator and audience. As art critic and curator Lea Verigne would put it:

The artist offers his hand to the spectator and the success of the operation depends upon how and how much the spectator is willing to accept it. The gesture of the artist… acquires significance only if his actions are met by an ace of recognition on the part of the spectator… It is indispensable that the public cooperate with him, since what he needs is to be confirmed in his identity.^[3]

To the U.S. Copyright office, however, there is no sharp distinction between works of performance art and the performing arts. As performance art pieces can vary widely in their meanings, experience, and processes, there is no strict definition of performing arts or “works of the performing arts” as the U.S. Copyright Office refers to it as. Their position is “[Congress]… determined that definitions for musical works, dramatic works, choreographic works, and pantomimes were unnecessary because these terms ‘have fairly settled meanings’… As a general matter, a work that was created to be performed before an audience, directly or indirectly, is a work of the performing arts.”^[4][5]

Copyright in Performance Art

Performance art is generally an intangible experience and some pieces and occurrences in works of performance art can be improvised by the creator or members of the audience. This renders the performance piece uncopyrightable, as any work that is improvised, unless fixed in a tangible and “sufficiently permanent” medium, is unable to be registered with the U.S. Copyright Office (with the exception of musical works).^[6] In order to be copyrightable, a work must be the author’s original work and contain a minimal degree of creativity; on the other hand, a work cannot be protected under copyright laws if its subject matter is deemed uncopyrightable, if it was created with de minimis expression (lacking base-level creativity), or if it is not original to the work’s creator.^[7]

Whether it be photographs at the request of the creator or videos taken by spectators, pieces of performance art are often accompanied by documentation which creates a fixed, copyrightable medium for the work. Some performance artists, such as Gina Pane, would privately create their performance art and have it documented (in Pane’s case, mostly through photographs and video recordings). This essentially removed fears over copyright protection and ownership rights. However, if an artist chooses to instead create live performance art (such as Marina Abramović’s The Artist is Present), what are their claims to ownership under law? Under section 106A of the Copyright Act, creators of copyrighted performance art are given the “exclusive rights” of reproduction, public display, public performance, distribution, the creation of derivative works, and the rights of attribution and integrity.^[8]

Copyright Issues in Live Art

A well-known piece of performance art, The Artist is Present (2010) and the rights given to Abramović (or lack thereof) can be used as an example of the limits of copyright protection for live and intangible performance art. In her art piece, Abramović seated herself at a table across from an empty chair, inviting spectators to sit with her as she silently gazed at them, forcing them to remain within the present moment and engage emotionally with the artist.^[9] As an expression of human intimacy, vulnerability, and connection, many spectators were moved to tears: Abramović used her gaze and body language to create her work of performance art. Abramović created limited edition photographs of this piece that she put on sale; while these photographs are protected under copyright law, and can do as she deems fit with them, the performance itself is not.

The Artist is Present, from a legal standpoint, can be condensed into the action of an individual sitting in a chair and allowing others to take the seat opposite them, resulting in an action that cannot be copyrighted. Moreover, the art is heavily reliant on audience participation and is consequently improvised, with the only constant being Abramović remaining silently seated. Because of this, there is no protection for The Artist is Present under U.S. copyright law, and Abramović’s work could be recreated without fear of copyright infringement or legal intervention.

Tangible Art and Copyright

An example of performance art that is tangible (fixed in photographs) is Gina Pane’s Escalade non Anesthésiée, in which she climbed a ladder that had shard-lined rungs, repeatedly cutting her bare hands and feet with each ascent.^[10] This was Pane’s way of creating a spectacle of female suffering and criticizing the Vietnam War; her exhausting performance forced her audience to internalize her suffering and open their eyes to what was happening on the warfront. While the act of simply climbing a ladder is not protected under copyright law, Pane’s work is copyrightable as it was not a live performance, but rather, a set of displayed photographs. With this in mind, Pane is afforded exclusive rights as an artist.

The Exclusive Rights of Performance Artists

Reproduction and Public Display

Pane, like other performance artists with copyrightable work, is given the exclusive right of reproduction: under this right, only the author of the copyrighted work is allowed to recreate their work or construct reproductions of it. Under section 106 of the U.S Copyright Act, copyright infringement in this case is not limited to an individual copying the entire work but rather extends to the duplication of any substantial part of it, as well.^[11] In addition to the right of reproduction are the rights to publicly display and perform the work, allowing the copyright holder to control the display and public performance of the work if it is literary, choreographic, audio visual, etc. Moreover, the owner of the copyrighted work also controls the distribution of said work through sale, rental, lease, transfer of ownership, or lending in the form of recordings and or copies.^[12]

Derivative Works, Attribution, and Integrity

The right to create derivative works is given to the creator of the work, but only extends to contributions made by the creator of the work themself.^[13] A derivative work is an artistic creation that is built on (or is based off of) preexisting works, including “…a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’”^[14]

The last rights given exclusively to the owner of copyrighted performance art are the rights of attribution and integrity. Within these rights, the author of a copyrighted work has the rights to claim ownership over the work and prevent the usage of their name on a work that they did not create (including but not limited to new pieces that are modifications of the original work). These two rights are afforded only to the author of the work, regardless of if they possess the work’s copyright; if the piece is jointly-created, the co-authors share the rights of attribution and integrity.^[15]

Fair Use Limitations:

While these rights are given solely to the owner of the work (with attribution and integrity being granted to the work’s author), there are limitations to these exclusive rights. “Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster.”^[16] The fair use doctrine also extends to unpublished works under copyright protection.^[17] If the work is used for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then fair use applies.^[18] The factors used to decide if fair use applies includes the purpose of using the work (whether it be commercial or nonprofit/educational), how much the work was used (how substantial the part is relative to the whole piece), the nature of the copyrighted work, and the change in market value of the copyrighted work as a result of the use, if any.^[19] It should be noted that fair use is not automatically applied: it can be used as a defense against copyright infringement claims, but it is not guaranteed that an artist’s use of the work falls under fair use protection.

In the 1992 case Rogers v. Koons, Art Rogers, the owner of the copyrighted photograph Puppies, sued sculptor Jeff Koons after he created his sculpture String of Puppies and had sold copies to collectors as well as displayed the sculpture in a gallery. This satirical sculpture copied the original puppies photograph and Koons contested that it was simply a parody, considering it to be social commentary regarding “the original photo and the political and economic system that created it,” which would be under fair use.^[20] In the end, the court had ruled that Koons’s use of the photograph was not under fair use due to the purpose of using the work as well as how much of the work was used. Not only did the court find that Koons’s sculpture was created in “…bad faith, primarily for profit-making motives, and did not constitute a parody of the original work,” but it also found that he had copied the photograph’s “essence,” as well.^[21]

Conclusion

While there are unspoken rules for artists, such as “…an artist should not lie to himself or others… [and] an artist should not steal ideas from other artists…,” these rules of artistic etiquette can only extend so far.^[22] Because of the intangible nature of performance art, it is uncopyrightable and therefore it becomes increasingly difficult to prevent others from copying or remaking a work. However, an artist can copyright tangible records from a performance such as audio and video recordings, photographs, etc. These items, when copyrighted, allow the owner to hold the exclusive rights to reproduce, publicly display and perform, distribute, and create derivative versions of the work (with the author of the copyrighted piece being given the exclusive rights of attribution and integrity). Copyrighting a piece of performance art allows the work’s creator to control much of what happens to the work; however, anyone can use the work so long as the new work aligns with fair use policies and does not appropriate or directly reproduce the original work.

Suggested Reading

• Ortiz, Jen Can performance art be collected…and still maintain its original message…? Hyperallergic (2012), https://hyperallergic.com/53624/can-performance-art-be-collected/.
• Cataloguing performance: Who owns what?, Walker Art Center, https://walkerart.org/magazine/cataloguing-performance-who-owns-what.
• Compendium of U.S Copyright Office Practices, Third Edition. https://www.copyright.gov/comp3/chap900/ch900-visual-art.pdf
• Concannon, Kevin Yoko Ono’s “Cut Piece”: From Text to Performance and Back Again, 30 PAJ: A Journal of Performance and Art 81–93 (2008).
• The Rise of Performance Art, The Economist, https://www.economist.com/books-and-arts/2017/06/22/the-rise-of-performance-art.
• Ephemeral and person-dependent: Legal aspects around performance art, Artlaw.club (2019), https://artlaw.club/en/artlaw/ephemeral-and-person-dependent-legal-aspects-around-performance-art.

Additional Resources

How to copyright performance art or performing arts: Electronic Copyright Office (ECO), https://copyright.gov/registration/

U.S. Copyright Office Fair Use Index:

https://www.copyright.gov/fair-use/

About the Author

Nicky Frankel is a graduate from Boston University receiving majors in International Relations, French Studies, and History. She is a 1L at Yeshiva University Benjamin N. Cardozo School of Law, where she plans to focus on intellectual property and art law.

1. Lea Vergine, The Body as Language, Body Art and Like Stories, in Body art and performance: The body as language 7–26 (2007), https://monoskop.org/images/1/1c/Vergine_Lea_Body_Art_and_Performance_The_Body_as_Language_2000.pdf. ↑
2. Philip Auslander, The performativity of performance documentation, 28 PAJ: A Journal of Performance and Art 1–10 (2006). ↑
3. Lea Vergine, The Body as Language, Body Art and Like Stories, in Body art and performance: The body as language 7–26 (2007), https://monoskop.org/images/1/1c/Vergine_Lea_Body_Art_and_Performance_The_Body_as_Language_2000.pdf. ↑
4. Compendium of U.S Copyright Office Practices, Third Edition. ↑
5. See also 17 U.S.C. § 202.3 ↑
6. 17 U.S.C. § 101 ↑
7. Compendium of U.S Copyright Office Practices, Third Edition. ↑
8. 17 U.S.C. § 106A ↑
9. The Artist Is Present, MoMA, https://www.moma.org/learn/moma_learning/marina-abramovic-marina-abramovic-the-artist-is-present-2010/. ↑
10. Martel, R. & Côté, D.-J. (1990). Gina PANE. Inter, (49), 2–7. ↑
11. 17 U.S.C. § 106 ↑
12. Ibid., ↑
13. 17 U.S.C. § 103 ↑
14. 17 U.S.C. § 101 ↑
15. 17 U.S.C. § 106A ↑
17. “Copyright and Fair Use.” Copyright and Fair Use, Harvard University, 2016, https://ogc.harvard.edu/pages/copyright-and-fair-use#:~:text=Fair%20use%20is%20the%20right,law%20is%20designed%20to%20foster. ↑
18. 17 U.S.C. § 107 ↑

19. Ibid, ↑

20. Ibid., ↑
21. Rogers v. Koons, 960 f.2d 301 (2d cir. 1992), https://www.copyright.gov/fair-use/summaries/rogers-koons-2dcir1992.pdf. ↑

22. Ibid., ↑

23. Marina Abramović, Hirshhorn Museum and sculpture garden | smithsonian An Artist’s Life Manifesto, https://hirshhorn.si.edu/wp-content/uploads/2012/04/An-Artists-Life-Manifesto.pdf. ↑

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