One has to wonder at the timing involved in The Andy Warhol Foundation’s latest licensing of the famous 1967 Velvet Underground & Nico banana graphic to toy manufacturers Medicom Toy and popular Japanese urbanwear designers, A Bathing Ape. The trio has partnered to create the the BAPE CAMO BANANA pillow, designed with the legally contested banana graphic as a zip off cover. The pillow is available in three sizes and unzips to reveal A Bathing Ape’s signature green, pink, or blue camo. An indiscrete side seam features both the AWF Andy Signature label and BAPE label.
Following up on the Velvet Underground v The Andy Warhol Foundation story, Hollywood Reporter speculates similarly to The Art Machine that the famed fruit’s copyright may belong to the record label.
Hollywood Reporters’s Eriq Gardner, wondering why the Velvet Underground hasn’t used a more fail-proof strategy of claiming the copyright for themselves (instead of opting to claim trademark protection on an image in the public domain) says,
“According to the facts in record, MGM Records paid both the band and Warhol $3,000 to furnish the image for use on the 1967 album cover. If the record label paid the money as a work-for-hire agreement, the true “author” of the image, under the law, would be the record label. We asked Universal Music Group, the seeming successor to MGM Records, to comment, but so far, we haven’t heard anything.”
It is an interesting speculation and one we may wonder about: is MGM silently planning its own little coup? And, if so, was it inspired by the Velvet’s bold but transparent strategies, or by press speculation about the Warhol graphic being a “work for hire?”
Or, maybe MGM has secret plans prompted by questions from sites like Hollywood Reporter asking them questions about the graphic? How meta would that be?
In 1966, when, then producer and manager, Andy Warhol created and signed the now famous banana graphic for the Velvet Underground’s debut album, copyright laws were different. An unregistered copyright could result in a loss of copy rights. Apparently by the time the album, The Velvet Underground & Nico appeared in 1977, Andy Warhol who never did register the logo, did not hold intellectual property rights to it.
What is more, he was paid for the design by the record label, which can mean that the banana was actually a work for hire. In that case, the copyright would have belonged to the Velvet Undergound’s label. But they never registered it either.
Although they disbanded in 1972, Lou Reed and John Cale say they have continuously used Warhol’s banana in marketing and promotion for various VU brand items and to promote their 1989 re-union tour and record, Songs for Drella, (their tribute to Warhol). This means that they may hold a common law trademark.
Indeed, Reed/Cale claim the image is indelibly attached to the band’s brand and is instantly recognized by the public to be an imprimatur of the Velvet Underground.
According to the band:
“The symbol has become so identified with The Velvet Underground … that members of the public, particularly those who listen to rock music, immediately recognize the banana design as the symbol of The Velvet Underground”
Their current trademark and unfair competition lawsuit against the Andy Warhol Foundation for the Arts (AWF), filed on Jan 11, 2012, accuses them of illegally leveraging copy rights to the image by licensing it to third parties (Apple, for one) “in a manner likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties.”
The AWF never registered the banana either. And since they have published the image many times without any official right to it, Reed/Cale claim that the AWF have “no copyright interest” in the banana, and that it is, in fact, in the public domain.
Suggesting that, with so many graphics to choose from, The Andy Warhol Foundation can only be using the banana to capitalize on its association with The Velvet Underground, the band is seeking an injunction against the AWF, to force them to cease licensing it to third parties. Reed/Cale are also demanding “unspecified damages” and a share of the profits made by the AWF from any past or ongoing licensing deals.
The suit also demands a declaration that the Warhol Foundation has no copyright interest in the banana.
Go ahead, expect more of these sweaty headlines with question marks in them. Because, with the now rather infamous Cariou v Prince case up for appeal sometime this year, we are facing another deluge of half-informed, and angrily contentious, punditry which will wash over the raw, dry, factual sands of more professional reports like a tsunami of histrionics.
Drowning in the madness will be all those bleeding hearts who root for the little guy, and the sundry art world know-it-alls who root for controversy, along with the fastidious fence straddlers like myself who can’t do right by anyone — and, let us not forget, the stalwart naifs who insist on seeing appropriation as flat out theft.
In the background, lawyers toil away, building sand castles of the driest, rawest, facts they can muster.
It is no wonder that the case has captured the attention of so many. It involves a lot of money, after all, and it pits an underdog, Patrick Cariou, against an art star, Richard Prince, and his giant posse of star-makers and lawyers. It also comes after artists had become cocky, with most copyright infringement cases settling without trial, and often to the mutual benefit of defendants and plaintiffs.
At base the issue is this: Richard Prince’s team must prove that district court judge Deborah A. Batts ruled in error when she decided against Prince’s fair use claim. Patrick Cariou’s lawyer, Dan Brooks, must argue that the ruling did, in fact, use the correct legal standard.
Brooks will file his opening brief by January 25th. Faced with the formidable 135 page appeal filed on Oct. 26, 2011 by big guns Boies, Schiller & Flexner, and a nearly 50 page amicus brief filed on behalf of Richard Prince by the Andy Warhol foundation, plus similar briefs from Google and a consortium of museums (including The Metropolitan Museum of Art, The Museum of Modern Art and The Art Institute of Chicago), Brooks will have to answer five newly refined points of contention.
That contrary to the first circuit court’s decision, the Canal Zone works that use Cariou’s photos are indeed transformative in every sense established by art history and accepted artistic practice and constitute a fair use of those images.
That Prince’s “intentions” do not factor into the meaning that his work may or may not have since it is the viewer and the context of a work that give it its meaning.
That contrary to testimony, Cariou did not lose any marketing opportunities due to Prince’s use of his images; indeed, his lawyers argue, his book prices soared after the initial bout of litigation.
That the first circuit decision, if upheld, will create a “chilling effect” on future creative work, and thereby will override the very purpose of the fair use exception which is intended to protect free speech and works of social value.
That, in the Batts decision to protect the copyright holder, Patrick Cariou, the rights of the appropriation artist, Richard Prince were unduly impeded, as her ruling overreached in lumping all of the thirty paintings under one ruling.
In Part One of this Three Part series, I set up a virtual dialogue between Dan Brooks (Schnader Harrison Segal & Lewis LLP.), Patrick Cariou’s lawyer and Anthony Falzone, executive director of the Fair Use Project and a Lecturer in Law at Stanford Law School.
In Part Two, I will discuss the five points above in greater detail. In Part 3, I will part the waters.
Last Wednesday the Catholic League’s William Donohue told The Washington Post that, “You have to know when to step on the gas and when to step on the brake.” Ironically, he was speaking about his own turn to step on the brake, having given the gas already to his thrust to remove David Wojnarowicz’s A Fire in My Belly from the National Portrait Gallery’s current Hide/Seek exhibit. But even as he spoke, activists, fellow artists, local galleries, The Andy Warhol Foundation, and Smithsonian curators were stepping on the gas.
Mr. Donohue was telling reporters that his work was done and he would not be attending a dialog at the New York Public Library that night, where Hide/Seek curators Johathan Katz and David C. Ward were scheduled to speak.
Katz and Ward, who have organized what the Post called “perhaps the highest-profile and most canonically scholarly exhibition of gay and lesbian art ever mounted in a major museum” were in danger of having months of careful work upstaged by the controversy surrounding the Wojnarowicz yoink. They gave a scholarly lecture, holding their grievances at bay until the question and answer period. Reluctant as they were to vilify the Smithsonian during a time when cultural institutions should be presenting a united front against what Katz calls “an American Taliban,” they did express disapproval of the hasty decision to edit Hide/Seek without even, as Ward puts it, “a fighting retreat.”
Meantime, artist AA Bronson had asked that very day, that his portrait, Felix, be removed from the NPG as a protest: “To edit queer history in this way is hurtful and disrespectful,” he wrote in his letter to the National Gallery of Canada (current owners of the work). Though they respect Mr. Bronson’s decision, whether or not the gallery has the legal right to remove the work remains to be seen.
While the Smithsonian’s thumping continues apace, New York activists are preparing to mirror the last week’s protest marches in Washington, as they spread word of a march this Sunday that will proceed from The Metropolitan Museum of Art to The Cooper-Hewitt/Smithsonian at 91st Street.
DATE: Sunday, 12/19
TIME: At: 1:00 pm
Protest against the Smithsonian
A march to protest the Smithsonian’s Censorship of David Wojnarowicz’s A Fire in My Belly from the National Portrait Gallery’s current Hide/Seek exhibit
March begins at: The Metropolitan Museum of Art
From there it will proceed to The Cooper-Hewitt/Smithsonian at 91st Street.
Via NewsGrist blog, This latest correspondance from artist, AA Bronson, to Martin Sullivan, Director of the National Portrait Gallery. Apparently Sullivan phoned Bronson to tell him that The National Gallery of Canada could not cancel the loan of Bronson’s work, Felix, due to the nature of their loan agreement. Mr Bronson responds below.
Date: December 17, 2010
To: Martin Sullivan, Director of the National Portrait Gallery
From: AA Bronson
Dear Martin Sullivan,
Thanks for telephoning me and I am writing to confirm our conversation.
You began by offering to bring me to Washington to see the exhibition, at the Museum’s expense.
You reported that the National Gallery of Canada was unable to cancel the loan because of the loan agreement, but that Marc Meyer, the Director, urged you to cooperate with me. (My understanding from Marc is that they CAN terminate the loan, but they would rather not do so on political grounds. Marc, maybe you can clarify).
You described my work “Felix, June 5, 1994” as one of three works given a major amount of space in the exhibition. It was because of that space that the museum was unable to give as much space to the videos in the exhibition as they really needed. You withdrew the David Wojnarowicz video because you felt it wasn’t being given “proper respect” because of the lack of space. I am not positive that I got this right, but I think you said that this was done BEFORE the Catholic League published a statement about the work, and you claim that a journalist goaded the politicians into making their statements. Please don’t take offense if I say that this all sounds exceedingly convenient. Not to say that it isn’t true but it is not convincing.
My proposal is that you reinstate the video, but in its complete form, as the artist intended (you were showing only a clip before, I understand, which already constitutes a prior censorship of the work).
If that means removing my work in order to make an appropriate space for the video, in its full form, I give my permission to do just that.
James T. Bartlett has resigned as National Portrait Gallery commissioner, in protest of the Smithsonian’s removal of David Wojnarowicz’s A Fire in My Belly from the “Hide/Seek: Difference and Desire in American Portraiture” exhibition.
Since its decision to withdraw the Wojnarowicz piece in deference to complaints from William Donohue, president of the Catholic League, who dubbed it “hate speech” and to pressure from certain members of congress, the Smithsonian has been bombarded with criticism from other members of congress, supporters of free speech and the arts, friends and supporters of the artist, the Andy Warhol Foundation, and many of it’s own members, including Bartlett.
Created by the artist in response to a diagnosis of AIDS, and in a signature religion-probing gothic style, the video was removed from the (now ironically named) Hide/Seek, an exhibition of gay portraiture, at the Smithsonian’s National Portrait Gallery on November 30th.
The yanking of Fire in My Belly followed threats from Republican leader, Representative John Boehner of Ohio and Representative Eric Cantor, the No. 2 Republican in the House, who threatened the Smithsonian by claiming that the venerable institution was misusing taxpayer funds and they could look forward to losing funding in future.
Though the exhibit was privately funded, the Smithsonian does receive some public funding. But National Portrait Gallery officials have stated that their quick response was prompted by a fear that a swift news cycle was quickly burying the exhibit in distractions and that they were forced to stay ahead of it.
Initial reports of the work’s withdrawal brought on immediate protest and have resulted in a veritable avalanche of bad press.
On Wednesday, December 1st, upon hearing of the Smithsonian’s cave-in, Victoria Reis, co-founder, Executive & Artistic Director of the nearby Transformer gallery, ordered an immediate, 48 hour screening of a 4 minute clip of the work (similar to what was included in Hide/Seek). This version of Fire in My Belly was shown in the storefront window facing outward to the public.
Protests spread out from the small non-profit gallery on December 2nd as a march proceeded from Transformer, at 14th and P streets NW to the National Portrait Gallery to picket in front of it.
By December 3rd Transformer obtained from the Wojnarowicz Estate (represented by PPOW gallery) & the Fales Library, an original 13 minute version of the “film in progress” plus 7 minutes of excerpts, and began to show those inside the gallery. But that screening, ending on the 4th, proved to be a spur to further protest.
Frustrated that the screening was to end that Saturday, two men began showing an iPad video of the the work at the NPG, inside the entrance to the Hide/Seek exhibit. They were detained and banned from the Smithsonian for life.
In a letter co-written by Reis and Board President, James Alefantis, repudiated the NPG’s failure to uphold its own claims that “it is committed to the struggle for justice so that people and groups can claim their full inheritance in the American promise of equality inclusion and social dignity.”
The letter goes on to quote Rep. James P. Moran, chairman of the subcommittee that provides funding for the country’s major art institutions who, in response to the Wojnarowitcz controversy said, “The whole point is that we should not be censoring we should be discussing.”
In a statement reacting to the Smithsonian’s decision, P.P.O.W Gallery and The Estate of David Wojnarowicz said, “In 1990 the artist won a historic Supreme Court case, David Wojnarowicz v. American Family Association. The courts sided with Wojnarowicz after he filed suit against Donald Wildmon and the American Family Association, who copied, distorted and disseminated the artist’s images in a pamphlet to speak out against the NEA’s funding of exhibits that included art works of Wojnarowicz and other artists. We are deeply troubled that the remarks, which led to the removal of David’s work from Hide/Seek, so closely resemble those of the past. Wojnarowicz’s fight for freedom of artistic expression, once supported by the highest court, is now challenged again. In his absence, we know that his community, his supporters, and the many who believe in his work will carry his convictions forward.”
Meanwhile, silent protest marches continue to plague the Smithsonian with picketers carrying the iconic photo of Wojnarowicz with his mouth sewn shut. Some protesters have even projected the censored video onto the side of the building, apparently unhindered by police.
Even Stephen Colbert has joined in the fray, saying of Eric Cantor’s threats, “This defunding threat isn’t some cheap exercise in mindless censorship. It’s an anti-paradigmatic revolutionary work of conceptual art banning. Cantor’s art is about the art that isn’t there, making the inaccessible literally inaccessible.”
This evening, in an unprecedented admonition to any of it’s previous benefactors, The Andy Warhol Foundation threatened to cease funding to ALL Smithsonian Institution exhibitions if they will not reinstate the Wojnarowicz piece.
Transformer plans to display a sign in its window until the work is reinstated. Commemorating the Smithsonian’s shame, the sign reads:
A Fire in My Belly
Video by David Wojnarowicz (1954 – 1992)
Created in 1987, Censored by the Smithsonian Institution 2010