Art in the Courtroom: Dealing with New Deal-Era Murals – Part II

January 14, 2019

By Olivia Taylor.

At one of the TEFAF New York Coffee Talks on “Public Memory and Public Monuments: Where Do We Stand in 2018?”, Professor of Art History at Columbia University Barry Bergdoll introduced the notion of “a meaningless monument as the only one that can occupy public space” due to public criticism of historical monuments. He cited the obelisk in Central Park as an example, only in the sense that the majority of the public is unaware of what an obelisk actually is and in this ignorance, are unable to be offended by it. This disheartening phenomenon surrounding historically controversial art was addressed in terms of censorship in Part I of this two-part article series focusing on one controversial piece: Pursuits of Life in Mississippi. At the conclusion of Part I, Artist Simka Simkhovitch’s mural, located in Jackson, Mississippi and completed in 1938, had been placed under a preservation easement and sold to a private developer.

However, an easement and a change of hands does not make the work any less controversial. The 1930’s mural still contains imagery of a city where African Americans pick cotton while white men hold jobs in positions of power. In 2009, the first African-American federal judge in the state of Mississippi, Henry Wingate, posed in front of the mural for a USA Today article saying the following:

“It does not belong in a courtroom where everyone should feel equal. On the other hand, it should not be destroyed, because it is our history.”

The question thereafter became one of where then should it belong. Although the work was originally commissioned by the U.S. Government during the New Deal Era, was it ultimately sold by the U.S. Government in 2013 just to pass on the challenging responsibility of displaying it to somebody else?

As many other historic murals are being uncovered, their owners must decide how the artwork should be presented to a very different audience than they were originally intended for. On the one hand, today’s legislation and public audience are generally more open to topics that were once very controversial, such as sex, race, gender norms, etc. On the other hand, the public eye is also highly critical and concerned with political correctness. These two contrasting attributes go head to head when historical controversial artworks go up on display. In anticipation of this public reception, and sometimes in reaction to it, owners of these works often turn to recontextualizing the work through an informed lens. This article will first discuss the background of recontextualizing artworks before diving into how one recontextualizes a work legally, and how artists can protect themselves against recontextualization that they do not approve.

Background of Recontextualizing Works

Art has always had the power to influence the public not only in beneficial ways, but in detrimental ones as well. The use of art in propaganda and public campaigns is an example. The simple fact that past and present governments censor art is a testament not just to our collective knowledge of the power of art, but to our fear of it as well. What responsibilities does the owner of an artwork have to make sure art influences its viewers in a positive way?

 The owner might feel obliged to make sure the work has a positive impact. It seems as though realist paintings and sculptures in the public eye deal with this question much more than, for example, a documentary film or photography series in a public museum. Given the nature of the camera to portray fleeting reality, the content of that moment appears to be regarded as objective more than intentional. However, a film-maker or photographer’s ability to “frame” arguably has a lot of control over “reality” – in what they photograph, how they photograph it, if they alter it etc. Furthermore, as discussed in Part I, art is considered “speech” under U.S. law, however, the controversial speech uttered every day does not receive the same opposition that visual speech does. Perhaps, one reason for this discrepancy is given by an opinion on the Pleasant Grove City v. Summun case, which questioned a government monument selection as free speech: “speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure. They monopolize the use of the land on which they stand and interfere permanently with other uses of public space.” ^[i](Italics added for emphasis.)

Simka’s mural is no exception to this enigma. Jason Goree, investor and lead developer of the Jackson courthouse property where Simka’s mural is displayed, was quoted in 2013 describing his approach the mural as such: “‘(The mural) is one point of contention,’ said Goree, who is African American. ‘But that’s a big theme that we are carrying throughout the building: preserving our past and not forgetting where we came from, while renovating and updating the building so it can be modern and relevant again.’” Reconciling these goals often leads to recontextualization.

The Webster Dictionary defines recontextualization as “place or consider in a new or different context” and thus, there are potentially endless ways to recontextualize a work depending on its lighting, placement, accompanying materials, ownership, etc. For Simka’s mural, an informational plaque was added next to the work in order to give historical context. Recontextualizing could even mean moving where the work is shown, as was demonstrated in 2012 in Newton v. Lepage, when the 1st Circuit acknowledged that a mural’s mere placement in a waiting room in the Maine Department of Labor building “was an endorsement [by the government] of the mural’s message.”^[ii] Yet another example the TEFAF gave in October as for constructive recontextualization is referring to public monuments as “historic urban artifacts” to replace the connotation that calling them “monuments” gives to the works.

However, the artist could take issue with altering a work from its original context for many reasons.

Modifying a Work Within Moral Rights

Hopefully, a work re-contextualized today is done to make it less offensive or less misunderstood. However, the scenario where a work is re-contextualized against an artist’s wishes or for unethical purposes is one worth examining, as it borders on transforming or changing the work from its original form. Where is the line between recontextualization and destruction/creation? It is not clear but it seems that an artist who decides that the recontextualization is more prejudicial than probative should have a power to stop it. A negative re-contextualization could hurt the artist’s personal reputation, professional body of work, or go against their moral code.

Legally, this sort of distortion could be protected under the moral rights afforded to an artist under the Visual Artists Rights Act (VARA) in the Copyright Act of 1976. Moral rights are the rights afforded to the artist to ensure:

1. Disclosure: the right to determine when a work is complete and ready to be disclosed to the public;

2. Attribution: the right to have your work attributed to you, not to others, and the right to remain anonymous or use a pseudonym;

3. Withdrawal: the right to modify or withdraw a work following publication

4. Integrity: the right to prevent your work from being displayed in an altered, distorted, or mutilated form; and

5. Preservation: the protection against the destruction of a work of “recognized stature.”^[iii]

A negative recontextualization would most likely fall under the protection of (4) or (5), but could also involve (3) if a work is already been recontextualized against the artist’s wishes. However, in the U.S. these protections are not as simple as they appear and copyright law has not always been the same. When Simka was working, it was long before the Copyright Act of 1976 and VARA. Rather, Simka was working under the Copyright Act of 1915, which did not afford any morals rights to artists at all. The Copyright Act of 1976 could apply retroactively once it was passed, however the moral rights would only last until the creator’s death; in this case, Simka passed away in 1949.

Given that an artwork usually does outlive its creator, the expiration of these rights seems somewhat useless for that artist’s legacy. Furthermore, even if a work of recognized stature fails to outlive their creator because of environmental or time related damage, that damage is not covered by VARA. Thus, the implication of this exception is that there is also no inherent requirement to conserve an artwork after it is commissioned.^[iv] For these reasons, the U.S. is considered to have an economic approach to copyright law, which limits the moral rights of the artist in comparison to, for example, European copyright law. The U.S.’s narrow version of moral rights betrays the U.S’s prioritizing of new creation and innovation over protecting the old. In application, this means that it would be perfectly legal if the government modified Simka’s mural today and furthermore, that there would be no legal way for the deceased or his survivors to fight back. Although this could negatively affect the artist’s reputation, there is neither a legal defamation claim for the deceased persons, nor a claim on behalf of their estate. The only exception would be if the defamation of the deceased has also reflected negatively on the reputation of survivors.

Unfortunately, time and recontextualization seem to have a direct relationship where the longer an artwork outlives its creator, the higher the chance that the work may need to be recontextualized. Since deceased people and their relatives generally cannot sue under VARA, there is, and probably will continue to be, a lack of case precedent for historical art recontextualization that violates an artist’s moral rights. Thankfully, some living artist are aware of their moral rights and now do sue for undesirable modification of their work for instances similar to recontextualization. For example, in Hanrahan v. Ramirezm,^[v] artist Mary Hanrahan successfully sued under VARA for the unlawful painting over of part of her publically commissioned mural of racial diverse youths with the image of “an American Flag with fifty-seven stars.”

 To make matters even more complicated, the Copyright Act of 1976 distinguishes between sole authorship and works made for hire. 17 U.S.C. § 101 (2012) states that moral rights apply to visual art, but “work of visual art does not include any work made for hire.” Although the contract is not available, Simka was likely under an employment contract to paint his mural given what we know about the New Deal programs. Thus, as explained in the previous article, the government held not only the speech rights to his work, but also the copyright and moral rights to his work while he was alive as well.

For the Modern Recontextualization-Conscious Artist Working for Hire

Since the Copyright Act of 1976, the best way for an artist to work for the government while ensuring that their work and reputation is not abused would be to do it as an individual contractor. As opposed to working for hire, the contract should ensure that the artist retains the copyright in the work, including moral rights, which prevent a work from being displayed in an altered or distorted form. Outside of government work, it can more generally be applied for any artist agreeing to make work for any person or entity that might constitute work for hire.

Surprisingly, there have also been instances where the artist was not looking for compensation, or to be hired at all, but nonetheless should have required another party’s contractual agreement. One famous example of this is in the Kent Twitchell v. West Coast General Corp,^[vi] which settled for one million U.S. dollars in California. Artist Kent Twitchell’s massive mural of Ed Ruscha was whitewashed without notice by the owner of the building who had permitted Twitchell to paint there on his own expenses over nine years. Twitchell sued under VARA, which requires a ninety day notice for the destruction of a work of recognized stature.

Thus, if compensation is not involved, then any agreement made between the parties, preferably signed, will protect the artist under copyright law as soon as the original work is “fixed”, i.e. as soon as the mural is painted on the wall. The contract also has legal value if it is orally agreed upon, except in the event that the artwork will take more than a year to complete. In this case, the various states’ Statute of Frauds usually require the contract to be written. However, in either case, as soon as the copyright is viable, it should be registered by the author to enable the greatest protection afforded by the right, including the right to sue in U.S. court.

What’s Now?

The future of Simka’s mural is not an isolated problem; there are large efforts on the part of the General Services Assembly to “help return America’s art to America” by finding many of the other pieces they commissioned during the New Deal-Era that have been misplaced over time. If the missing works are found, they could be placed in the Google Arts & Culture online collection or in Virtual Reality collections (VR). VR provides a space for art to be viewed with no real physical context, but with plenty of historical context if the virtual curator so chooses. For example, with the narration of a work that is simultaneous to its viewing, the viewer is forced to consider the historical context in which the visual subsisted. This method attempts to combat a phenomenon in art appreciation today, which a TEFAF panelist described regarding a 1922 allegorical monument in New York City called Civic Virtue saying “people didn’t look, they drew conclusions.” Bruegel’s “Fall of the Rebel Angels” painting is a good example of the potential for this technology to liberate controversial art. Additionally, VR makes many practical issues disappear. Current talks with the owner of Simka’s mural revolve around the difficulty of getting the huge and aging mural off the wall of the courtroom in order to even be able to place it in a museum, not to mention the cost associated with such an endeavor. While VR does not replace the impact of seeing a mural in real life, at least it could allow people to see Simka’s mural without having to enter the condominium building replacing the original courthouse.

As for the modern monument sculptor or muralist, it will be important to consider why this phenomenon is occurring in order to know how to contribute to the public art collection successfully. Perhaps, it is the ease of jumping to conclusions from the subject matter that allows these viewer assumptions of the subject meaning to get so misconstrued.  The TEFAF panel brought up two potential solutions for this hypothesis. Firstly, one could make representational art, such as the Strawberries Fields monument to John Lennon in Central Park, which prompts viewers to contemplate more than just an obvious subject, but what that subject stood for. Secondly, an artist can stipulate in a contract how long the monument should remain past their death, thus making the work a temporary monument rather than a permanent one. If a monument is temporary, there is less of a chance it will need to face historical recontextualization at all. For private artists, working solely in representational or temporary art may limit their work, however, for publically contracted art, it might be a good remedy for controversial misunderstanding.

There are questions central to showing controversial art that will persist regardless of both the First Amendment and Copyright laws. As a relatively young country starts to amass real historical art for the first time, perhaps it will also start to reexamine its laws for the preservation of these pieces in comparison to countries that have had a wealth of historical art for centuries now.  These questions on what to censor, how to use art’s power, and who should recontextualize art currently only acquire clarity once every few years when an artist brings a case under these laws. In the meantime, we can continue to work on educating people on how to view artwork without recontextualizing it to a detrimental effect, or scraping the artwork all-together. The experience of viewing historically controversial art can be both a teaching and a learning opportunity. This opportunity creates unofficial duties on the “recontextualizer” to respect the moral rights of the artist, but also to respect the presentist perspective on history. Conversely, the public has a duty to receive these works with an open mindset and a patient willingness to learn about them. Maybe nobody saw Simka’s mural for 60 years, and perhaps the government legally was allowed to make it so, but at least now the mural may be ready to be seen in a new and more constructive way.

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^[i] Pleasant Grove City v. Summum, 555 U.S. 460 (2009).

^[ii] Newton v. LePage, 700 F.3d 595 (1st Cir. 2012).

^[iii] Copyright Act 1976 § 106A(a)(3)(B).

^[iv] See Flack v. Friends of Queen Catherine Inc., 139 F.Supp.2d 526 (S.D.N.Y. 2001).

^[v] Hanrahan v. Ramirez, 1998 U.S. Dist. LEXIS 24179 (C.D. Cal. June 3, 1998).

^[vi]  Kent Twitchell v. West Coast General Corp., No. 2:06-cv-04857 (C.D. Cal. filed on August 4th, 2006)

About the author:Olivia Taylor (BA 2018) served as the 2018 Fall Intern with the Center for Art Law. She graduated from Colgate University with a double major in Philosophy and German. She plans to attend UCLA School of Law in the Fall of 2019 and can be reached at otaylor@colgate.edu.