Anonymous Sources: Pollock Matter a Use Too Fair?
Could a longstanding debate over copyright law add yet another dimension to the long-running Pollock Matter Affair? There are signs it might, though the media haven’t yet understood just how broad the implications might be.
Last winter, after extensive negotiations with the organizers of the McMullen Museum’s Pollock Matters exhibition, the Pollock-Krasner Foundation denied requests from Boston College to reproduce works by Jackson Pollock and his wife, Lee Krasner in the show’s exhibition catalogue. It was yet another blow to the controversy-tossed project.
On Labor Day Weekend, though, Pollock Matter opened to the public. And its catalogue, released to the public on the same day, contained reproductions of works by Pollock and Krasner on view in the exhibition, along with images of the hotly debated Pollock-like abstractions, discovered by Pollock friend Alex Matter in 2002, that are featured in the show.
“Copyright issues latest wrinkle in Pollock controversy,” says a headline in the Sept. 7 Cleveland Plain Dealer. The article, by Plain Dealer art critic Steven Litt, quotes Ronald Spencer, an attorney for the Pollock-Krasner Foundation saying “We were shocked to find that [Boston College’s McMullen] museum had published copyrighted images in their catalog.”
The foundation has claimed at various times that it wanted to prevent publication of legitimate Pollock works alongside the disputed Pollock-like works included in the McMullen exhibition. “We were uncomfortable with it because any time a document is produced such as an exhibition catalog, it can be used down the road as a selling document to sell the paintings,” Spencer told the Plain Dealer.
Established under the will of Jackson Pollock’s widow, Lee Krasner, the Pollock-Krasner Foundation owns copyright to all works by Pollock and Krasner though its receipt of Krasner’s estate, which, at her death in 1984, was valued at tens of millions in cash, art work, and reproduction rights. Under current U.S. law, copyright belongs to the creators of works of art and their heirs, not the owners of the works themselves.
So did the McMullen violate U.S. copyright law? Probably not, according to some who have studied the issue. This latest Pollock controversy, in fact, touches on a thirty-year-long debate on the exact nature of “fair use.”
Advocacy groups, like the College Art Association’s Committee on Intellectual Property (CAA-CIP), have long held that the law should be interpreted to give art historians and critics the same rights to as scholars and critics of literature. Literary scholars, they argue, can freely quote from copyrighted writings in their books and articles, despite the wishes of the copyright holders. That is a long-recognized “fair use” of copyrighted material.
So why shouldn’t art scholars have the same right to illustrate their own books and articles with copyrighted works of art? The principle— that free debate is hampered when copyright holders can charge too much or restrict voices they don’t want to be heard— is the exactly same in both cases, many visual arts scholars argue.
Boston College seems to agree. After the opening, the school released to several media outlets the following statement: “Following the Pollock Krasner Foundation’s decision to withhold permission to reproduce works of Lee Krasner and Jackson Pollock in the Pollock Matters catalog, Boston College worked closely with copyright counsel to produce a catalog incorporating those images needed to publish our contributors’ scholarship in conformity with fair use principles.”
But U.S. copyright law is less than explicit on the issue.
“When they rewrote U.S. copyright law in the 1970s,” says a former CAA-CIP member, “Congress fudged the issue of fair use. Basically, the new law says ‘There is something called fair use under U.S. law but we’re not going to spell out exactly what it is. Instead, we’re going to give you some general guidelines. But the courts are going to have to figure the precise definitions on a case-by-case basis.’
“In effect, that means in order to establish fair use, you have to publish, wait to get sued by the copyright holder, and win your case in court. Obviously, not everyone is going to want to do this. Nevertheless, those fair use and public domain cases that have gone to court have sometimes backfired badly on copyright holders.”
In 1989, in one example often cited by fair use advocates, Roy Orbison’s publisher sued 2 Live Crew for their parody of Orbison’s famous song, “Oh, Pretty Woman.” The U.S. Supreme Court ruled that parody (as a form of commentary) had a long history in the United States as fair use. As a result of their decision, the court protected all parodies as fair use of copyrighted material.
Will the Pollock-Krasner Foundation case also have implications beyond Pollock Matters? Possibly. There are already some court precedents, copyright experts say, to bolster B.C.’s position. B.C. victory in a court case could support a still broader definition of fair use in the visual arts.
“Many art historians are quietly cheering B.C. for taking this one on,” says our source. “They have been complaining for years that art copyright holders have been improperly using their rights to extort unreasonable fees and to suppress critical and scholarly views they don’t like. Boston College is not a poor, isolated scholar but a major university with its own law school. That tends to level the playing field a bit.
“I’m not an attorney and I certainly wouldn’t want to be in position of giving the foundation legal advice. But I have to say turning down the McMullen’s reproduction request might have been a tactical error.
“Published statements made on the foundation’s behalf suggest that its intent is to hamper scholars and scientists from freely and effectively expressing their views about the disputed Matter paintings’ authenticity. But suppression of scholarly debate, no matter how wrong-headed or obnoxious, was not the intention of the copyright provisions of the U.S. Constitution, which is ‘to promote the progress of science and useful arts.’
“Now the foundation is in the position of letting the fair use claim go without a challenge, which will encourage other scholars to follow the McMullen’s example, or else mounting a lawsuit the foundation would quite likely lose. That would, in turn, bolster the fair use claim for all similar uses and all copyright holders.
“A lawsuit would also expose to public view the foundation’s somewhat mysterious motives in this case. Some scholars have wondered why the foundation, whose sole stated purpose is to give financial grants to living artists and who supposedly ‘got out of the authentication business’ years ago, has departed from its own past practices in this instance. Certainly they have handled other, high-profile Pollock authentication cases very differently in the recent past.”
The foundation did grant filmmaker Harry Moses rights to film a number of major Pollock paintings in his 2006 documentary “Who the #$&% Is Jackson Pollock?” The film explores the efforts of truck driver Teri Horton to authenticate another Pollock-like abstract, which she brought in a thrift shop for $5.
Horton’s painting has been rejected out of hand by most Pollock authorities. Throughout his film, Moses compares Horton’s painting visually to major Pollock works hanging in museums and in collectors’ homes, in effect arguing for its authenticity. In one scene, forensic specialist Peter Paul Brio discusses side-by-side details from the Horton painting and Pollock’s No. 5, 1948 to support his own belief that Horton’s painting is a genuine Pollock. (Brio, incidentally, also contributed an essay to the McMullen catalogue.)
The Moses film includes written disclaimers to the effect that the Pollock-Krasner Foundation does not endorse any authentication of Horton’s painting. Sources close to the McMullen exhibition have said privately that similar disclaimers figured in negotiations over the Pollock Matter catalogue. But the foundation eventually withheld their permission anyway.
Meanwhile, the Pollock-Krasner Foundation is said to be considering its response to the McMullen catalogue. “They might just have painted themselves into a corner,” concludes our source.
Advocates of free scholarly expression may well point out that one of the three scientific reports on the Matter Paintings, conducted by Orion Analytical LLC of Williamstown, MA, has been “suppressed,” according to media reports, by its commissioners, Alex Matter and others with interest in the Matter paintings, at least until after the opening of the Pollock Matter exhibition.
Unfortunately, we have no inside sources and no new information to offer on this aspect of the controversy or on the merits of various arguments made about it. Thus we can only refer readers what has already appeared in numerous media reports, including, in particular, the Boston Globe.
Regrettably, the Orion Report and the decision not to release it to the public prior to the exhibition opening does seem to have generated bad feelings on all sides.
The copyright issues involved in the Orion Report are quite different and separate, however, from the ones involving reproduction rights. If Matter and his associates commissioned the report, they would control publication rights under the “work for hire” provisions of copyright laws. Boston College would not have been able to overrule their decisions about publication by legal means. As a private research university, Boston College is, of course, fully within its rights in deciding what information to present in its publications and when to release them.
In his Pollock Matters catalogue essay, MFA conservation scientist Richard Newman incorporates at least some of the findings of the Orion Report in his summaries of the three scientific reports made of the Matter paintings. We hope that, in the interests of a full scholarly debate, the full contents of the Orion Report will eventually be made public.