Copyright Law and Art: Legal Scholar Amy Adler in Conversation with Artist Jill Magid
Feb 18, 2020 12:41 pm
For the first iteration of The Exchange held as a live event, artist Jill Magid met with Amy Adler—a law professor at New York University—to discuss how their respective work questions the law’s definitions and control of art. Magid’s project “The Barragán Archives” (2013–16) investigates the oversight of artists’ legacies through the case of Mexican architect Luis Barragán, whose professional archive was purchased by the Swiss furniture company Vitra after his death. The nonprofit Barragan Foundation, headed by Federica Zanco, the art historian wife of Vitra’s chairman emeritus, Rolf Fehlbaum, is run out of the company’s fallout shelter in Birsfelden, Switzerland. Magid’s series has two parts: “Woman with Sombrero,” (2013–15)—sculptures and installations that visualize legal restrictions against reproducing Barragán’s work—and “The Proposal” (2014–16), various works and actions centered around Magid’s provocative request that Vitra return the Barragán materials to Mexico. In 2018 Magid wrote and directed a feature film about the project called The Proposal. As a legal scholar, Adler writes about related topics: the First Amendment’s treatment of images, the intersection of copyright law and the art market, and the moral rights of artists. The conversation—held on October 16 at Camp David, a co-working space in Brooklyn’s Industry City—framed Magid’s work alongside other legal precedents and debates in intellectual property law.
JILL MAGID “Woman with Sombrero” began when I wrote to Zanco seeking access to the archive. I also asked her to curate a selection of Barragán’s work as part of my 2013 show at Art in General. She denied my requests. One of her letters included a threat, telling me there would be legal consequences if I reproduced anything in Barragán’s archives.
The conceptual and legal parameters of my show at Art in General became: how can I present the works that I had asked Zanco to lend me without infringing on the copyright? There, I showed my letter, as well as her response to it by email. To get around the legal obstacles in reproducing her message, one lawyer suggested that I just leave my email open on an iPad: that way, it’s not a reproduction. The texts were shown on a sculpture inspired by a furniture piece that Barragán made for a chapel. For El Bebedero at Las Arboledas by Armando Salas Portugal , I had a frame put around the cover image of a book about his work, basically treating the volume as a readymade.
AMY ADLER Copyright law is meant to enable creativity. And yet, in your case, copyright is an obstacle. In my own work, I’ve puzzled a lot about how this came to be. The theoretical goal of US copyright law, which is enshrined in the US Constitution as interpreted by the Supreme Court, is to promote the progress of the arts. Yet again and again I see, and you illustrate, how copyright law often does the opposite—especially when an artist draws from previous work to create something new.
Why did the lawyers not say to you: “this is fair use”? I think your answer will be very revealing. There are all these cases—involving Richard Prince, Jeff Koons, Andy Warhol—where the courts are struggling with the idea of fair use. In my view, fair use—which is supposed to be an exception to copyright law—should have protected your ability to use Barragán’s works and images. It’s meant to permit other artists to use a work, when that use also promotes the progress of the arts.
MAGID I met with lots of lawyers, and they gave me various kinds of advice. But I wanted to take the law extremely literally in order to reveal its absurdity. I think that the Barragan Foundation was also using the law in its most extreme interpretation.
Maybe fair use could have been an argument, though you’ve written about many cases where fair use did not protect the artist. I did rely on fair use when I re-created Barragán’s facistol (lectern). In the US, you’re allowed to copy design objects, but not in Europe. I loved that the art had to change based on its jurisdiction. I brainstormed with my French lawyer about ways to show the piece legally in France. I asked him: What if I cut it? What if I burn it? No, no, no. Then he told me, “You can show it, but you can’t show it.” So now, when it’s shown in Europe, it’s always covered with a moving blanket.
Rather than fight for fair use, I wanted to show how the Foundation was trying to use the law to limit me, and see how I could use those limits as challenges to come up with new forms—forms that made the law visible.
ADLER In my scholarship, I’m also thinking about the absurdity of the law’s inability to work with artists. It was probably understandable advice to not push your case on fair use: there’s an incredible lack of clarity there. The big question courts have to answer is: does the second work give a new “meaning or message” to the first? This requires courts to adjudicate what, exactly, the “meaning or message” of a work is, and to do so with very few guidelines. Some courts approach this by asking: what is the artist’s intent? Some ask: what would a “reasonable observer” say the work means? The current law in the Second Circuit (which includes New York) is: do the works look aesthetically different?
MAGID And sometimes they’re adjudicating while looking at a 8½-by-11 black-and-white printout! At the Richard Prince trial, no one saw the real work in the courtroom, but they were supposed to say whether it looks like the original or not.
Prince used the work of someone who is relatively unknown. But this imbalance is different with the work of someone like Samuel Beckett. The Beckett estate is extremely protective of the playwright’s work—I learned this when I made a piece [Quartet, 2014] about his 1981 television piece for four performers, “Quad.” I wonder if it would really be any threat if I did something with Beckett’s work—he’s so well known! This power dynamic is hard to build into the law.
ADLER We’re trying!
MAGID Certain corporations are highly litigious, and artists have a hard time fighting them. If you go to court, you’ve already lost, because it costs so much even to go to court.
I was confused as to how a corporation that bought Barragán’s archive in 1995 could then own the image rights to all his work, including photographs of his buildings taken in the ’70s. One lawyer argued that maybe, by buying the plans to Barragán’s work, Vitra owned rights to all reproductions: buildings are copies of the plans, photographs are copies of the building. But that implies the photographer’s authorship is irrelevant: that’s erasure through law.
ADLER I think you and Federica [Zanco] both love Barragán. For her, to love him purely is to lock him up underground and not let anybody in. Your approach to loving an artist involves changing and transforming his work—not keeping it in stasis. In her view, she’s conserving the work, but in your view, she’s destroying it by depriving it of life. It reminds me of Adorno calling museums sepulchers, or Pissarro calling them necropolises.
MAGID I do really love Barragán’s work, but not with this sort of obsession often portrayed in the press. My project isn’t just about Barragán; it’s about the questions his contested archive brings up concerning artistic legacy, control, property, and authorship. I wouldn’t say I’m attempting to appropriate or change Barragán’s work, but rather to re-present his work—not in order to interrogate Barragán, but rather the laws “protecting” him and other artists.
ADLER I think that artists’ legacies should be approached artist-by-artist, but I’ve resisted the widespread idea that this should be determined according to the artist’s wishes. I know my opinion is unpopular.
MAGID Your essay “Against Moral Rights”  gives some great examples of cases where maybe we shouldn’t listen to the artist’s instructions.
ADLER Kafka famously insisted that his unpublished writings be burned when he died. His friend defied him and saved great works like The Trial and The Castle for the public.
MAGID I did a performance at the Whitney called Awaiting Alexander Calder  expending the idea of mobility in Calder’s work. I was interested in how the agency of an art object becomes independent of what the artist originally intended. There are so many cases where you can’t even know what the artist envisioned.
That said, if someone wanted to alter my work—that gets hard. Legal questions always get challenging when they become personal. Much like when you have kids: before, you have all these beliefs as to how things like schools should run. But when you have your own kids, you’re looking out for their best interests, and it gets personal. You have to negotiate between what is best for them and what is best for education and the community. I think your point is so exciting because it creates a conflict within myself.
ADLER This metaphor of artwork as child informs European intellectual property law: there’s this view that the connection between artists and their work is spiritual and profound. Even if the artist sells the work, even if the artist dies, the work is always bound to the artist, and law must not allow anything to stand in the way of that.
MAGID Isn’t that in US law too?
ADLER It is, but to a lesser extent. The predominant US view is different: we must protect artists not for their own sake, but to serve public interest. These two views are at the heart of the conflict in intellectual property law theory.
In the US, we view art more as a commodity, less as a spiritual relationship. The predominant American idea is that law should provide economic incentives for artists to make work for the public good.
How much does the metaphor of artwork as child resonate with you?
MAGID I do think that most artists at least hope to feel a spiritual connection to their work. You’re realizing your vision. Before you put it out into the world, you’re living with it, making it, responsible for it.
I used to work for the poet Fred Seidel. I remember when one of his poetry books came out. I picked it up off the coffee table and said, “Look! It’s your book! Aren’t you so proud?” And he told me: “It’s not my book anymore—I published it.” Once you put the work out there, you have to let it go: it has its own life separate from its creator. Although I sometimes want to control it, I also recognize that there are limitations to that control.
If someone comments on my work through their own work, my first instinct is: “Hey! That’s mine!” Like a five-year-old. The second reaction is: “Well that’s interesting, what are they doing with that?”
ADLER You’re giving agency to the work—that’s key. To me, that’s analogous to what happens when a child grows up and leaves home.
MAGID I always tell my students: that’s why you make that thing that you sketch. You might think you know it, but you don’t really see it until you finish it and step back from it. This happened when I made my film The Proposal. My editor kept saying “Wait until you see it in a theater. You will think ‘Wow, I’ve never seen this film before.’” She was absolutely right: suddenly you feel like a foreigner to your own creation, and it’s one of the most magical things about making art—feeling that agency running away from you.
ADLER Then, you turned Barragán’s ashes into a diamond, altering some remnant of him: not just his artwork.
MAGID The archive was bought for Federica as an engagement present, supposedly in lieu of a ring. I wondered: if the archive was gained from a proposal, could it be accessed through another proposal? I proposed to Federica with a diamond ring made from Barragán’s ashes, asking to exchange his body for public access to his body of work.
I worked with more than twenty members of the Barragán family for over a year—I got permission to do all this from the family and the Mexican government. They remain supportive of the work. The artwork wasn’t extremely controversial when I first showed it in Switzerland, but soon after it caused great debates, especially in Mexico, that certainly started to escape my control. Of course, it’s a provocative work; it is meant to ask hard questions.
The ring was on the front page of Mexican newspapers for months; there was a national vote as to whether it should be destroyed. All this was so emotionally challenging, especially because there was a lot of misinformation in the press, suggesting that I did not have permission. Eventually, though, people started asking all the questions I hoped the work would provoke about access, legacy, and control. There was a live televised debate, and in the first hour, a lot of questions were directed at me, not the work: did you really get legal clearance for this? Then it opened up. One historian asked: why isn’t Gabriel García Márquez’s archive in Mexico? Then finally: why did Barragán’s archive leave Mexico? Should we have laws that protect archives? Suddenly, I was less necessary in the discussion; it became about all the questions the work inspires.
I had shown “Women with Sombrero” in Mexico, and it was reviewed well, but it didn’t ruffle anyone’s feathers. It wasn’t until the work went potentially too far that the questions really got asked.
ADLER Your gestures encapsulate some really important questions. How does the artist live, or not, in his work? What about separating the artist from the artwork?
MAGID It’s definitely about how we collapse the artist and the artwork all the time—in the way we talk, in the way we adjudicate. But when you actually see it happen—which is different from reading about it—it’s shocking. And it should be.
—Moderated by Emily Watlington
This article appears under the title “The Exchange: Permission & Copyright” in the March 2020 issue, pp. 24–26.