Case Review: Roberts v. Richard Beavers Gallery et al (2022) – on Artistic Tradition and Copyright Infringement

May 29, 2023

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

Maddy Domek received her B.S. from Emerson College and will begin the J.D. program at Harvard 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. ↑