IF CADY NOLAND’S ART has over the years embodied a concern with “how to gain control in the face of chaos,” as Steven Parrino once put it, these anxieties continue to echo in her recent legal battles. In a lawsuit filed last month, Noland asserts that her name can no longer be associated with Log Cabin, a work she created in 1990. But her claims go even further: She declares that conservators’ material alterations to the sculpture’s facade (when they replaced decayed logs) created a new copy, violating her exclusive right to make new reproductions.
The case submitted by her legal team invokes a core provision of the Copyright Act, which specifies that only the copyright owner (in this case, Noland, as the artist/author) may elect to reproduce a work. The substitution of entirely new wooden parts and logs, the logic goes, amounted to an unauthorized iteration. As restitution, she asks the court to impound Log Cabin and all photographs of it in various owners’ and galleries’ possession, and to bar any display, marketing, or other use of the work while the case is pending. In other words, she is asking the court to stash Log Cabin out of sight.
Noland likely faces an uphill battlein part because courts have historically been willing to allow purchasers of copyrighted works ample freedom to repair them. The eventual outcome of these legal proceedings aside, Noland’s suit illustrates a potential new phase in the war over copyright: Artists unhappy with the fate of older works are anxious to find new legal means for authorial control.
Noland is hardly the first artist to repudiate her work. Balthus disowned paintings to “punish former lovers or dealers with which he . . . had disagreements,” according to testimony submitted in a related case. When Picasso denied creating La Douceur, 1903, deeming it a “joke by friends,” he may have just been dissatisfied with the work itself. More recently, Richard Prince, in a cannily complex act of protest, disavowed a portrait of Ivanka Trump that had ended up in her collection. Prince called it “fake art,” and said he returned the $36,000 that Trump had originally paid for the work. Amusingly enough, the portrait’s source image was one that Prince had appropriated from her own Instagram feed.
These efforts, in aggregate, underscore a question Virginia Rutledge posed in the March 2008 issue of Artforum, in an article on copyright and ownership. Writing in the context of the legal standoff between artist Christoph Büchel and Mass MoCA, Rutledge asked, “What power should artists have to control the presentation and disposition of their work, and what obligations are appropriate to impose?”
With the exception of some limited moral-rights protections, US artists have had little legal recourse to control the fate of a work after its sale. But there may be a potent legal approachlargely overlooked thus farthat could prove powerful to new-media artists seeking to assert rights over creations they sold long ago. The little-known power, called copyright termination, gives artists the ability to take back copyright rights necessary to exhibit many conceptual and new-media works in the US, after thirty-five to forty years, even if the artist expressly transferred such rights forever. The same mysterious rules that songwriters have been using to wrest back compositions from record companies (Paul McCartney recently settled a suit to retake his share of the Beatles catalog) offer an alternative means for controlling when and how dematerialized artworks can be publicly displayed, performed, or refabricated.
Take artists who use 3-D printing. Often, they anticipate that an acquiring institution will re-create otherwise disposable physical components whenever their works are installed. These anticipated acts of re-creation bring copyright law directly into play. Many of the institutions currently acquiring pieces intended to be refabricated on installation insist on artists granting express copyright licenses for conservation purposes. But even in the absence of such licenses, courts may imply copyright permission for museums to reprint sculptural elements on a limited basis where, for instance, the artist handed over digital files for just that purpose.
But as it turns out, that initial permissionhowever clear at the outsetis subject to termination after thirty-five years. Imagine that a few decades from now, an artist working in 3-D-printed components objects to a proposed reinstallation of his work at the museum, or becomes critical of the institution generally. He (or his heirs) would be entitled to revoke all copyright permissions, at no cost. This would leave the museum with the unenviable choice of showing the aged, disposable components as originally printed (clearly contrary to the artist’s original intent), reprinting them and risking a copyright suit, or acquiescing to the artist’s future desires. I’m guessing that most museums would choose the last route, thus underscoring the potential impact termination rights could have on artist control.
Termination, however, does not only apply to hypotheticals in the distant future. They could be applied by artists (or their heirs) to pieces of art acquired long ago. Take Sol LeWitt’s wall drawings. LeWitt created these signal Conceptual pieces in the form of authenticated diagrams and instructions. The owner of these plans is entitled to have the work painted or drawn onto a wall. LeWitt compared these documents to a musical score. But to a copyright lawyer, they are also a copyright licensepermission to the holder of the certifying documents to copy the diagram.
Copyright termination now offers LeWitt’s surviving family members a potent legal power to control the realization of many of his wall drawings, even those that have been owned outright by private individuals or institutions for decades. They could likely revoke (for free) copyright permissions granted by LeWitt decades ago, including the wall-drawing permission documents. In other words, it gives LeWitt’s heirs the legal power (if, say, they believe a collector or museum is not treating the work in a manner consistent with LeWitt’s intentions) to ask a court to prevent a wall drawing from being installed.
It must be noted that termination only applies to practices that involve not just the sale of objects, but the transfer of legal permissions (whether in videos, instruction-based Conceptual works, performance, or digital media). Traditional artworks are exempt from some key copyright provisions, and thus termination likely has little value to painters or sculptors except to block collateral reproductions of their works (for example, in gift-shop merchandise). Still, one might imagine artists otherwise working in traditional media beginning to include minor dematerialized elements in their piecessay, a digitally printed component that needs to be fabricated anew for each exhibitionto establish a terminable hook for future use.
Why haven’t we seen artists wielding this power yet? It’s likely a combination of reasons. The most applicable termination provision only took effect in 2013, and artists must wait at least thirty-five years to invoke it. Most artists and dealers working beyond object-based practices don’t yet know about this tool. (And even as this course of action becomes more widely known, many may be reluctant to threaten suit against the collectors and museums who ultimately keep their endeavors afloat.)
Could copyright termination wreak havoc with the systems that facilitate dematerialized art’s production, collection, and display in the US? If and when artists or their heirs begin taking advantage of this tool, we might expect to see changes to studio and acquisition practices. Most immediately, both private and institutional collectors of high-value older works already subject to termination may need to start paying attention to the objections of artists that created the work, rather than risk a public threat to their acquisitions. Meanwhile, artists whose practices already inhabit digital or conceptual spaces might start expressly granting limited copyright licenses along with their works to (ironically enough) make it that much easier to terminate the grant in the future. (Noland, by contrast, reserved all copyright rights to herself, according to documents attached to her complaint. Had she instead granted some form of express, limited copyright license in 1990, there would likely have been a strong case for her to terminate that license in 2025.)
Before moving forward with acquiring new work, meanwhile, museums and collectors might have to be considerably cagier about pieces subject to termination. They could conceivably ask artists to create legal structures immune from termination rights. Gallerists, for instance, could push digital artists to incorporate themselves and create artworks as employees of their own corporationsa loophole capable of stripping the artist of authorship and converting the resulting art into works-made-for-hire immune from termination (though the termination right itself, unlike rights under the Visual Artists Rights Act, may not be waived).
It remains to be seen whether artists working with newer media and dematerialized practices will embrace the lurking power the Copyright Act gives authors in the US. Disputes between creators and collectors are unavoidable, and the groundwork is already being laid for innovative legal approaches that new-media artists can wield in future clashes.
Peter J. Karol is associate professor of law and director of the intellectual-property concentration at New England Law Boston. His legal writing on copyright termination and art appears in the Journal of the Copyright Society of the USA.