Anonymous Sources: Pollock Matter a Use Too Fair?

Anonymous Sources

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.”

Untitled No. 8

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.

Editors Note:

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.


  1. Thomas Garvey on September 20, 2007 at 12:09 pm

    Hmmmm . . . well, it’s at least nice to know, via the “Editor’s Note,” that this site’s editors can see the glaring hole in “Anonymous’s” legal logic. A judge might, it’s true, so perversely parse this situation as to decouple the repression of some evidence, via copyright, from the demand that other evidence be presented in violation of copyright, via claims of “fair use.” Stranger – and even more ironic – things have happened in courts of law, and so the Pollock-Krasner Foundation may, indeed, not pursue its claims. But if the legal question is in balance, the moral question is not. The position sketched in by “Anonymous” is flagrantly hypocritical and dishonest. If scholars are indeed concerned about the integrity of their debate, their first concern should be gaining access to the “Orion Report.”

  2. ArtsFuse on September 21, 2007 at 10:11 am

    We do not draw moral lessons from the Matter Affair. It is clearly one of those episodes that does not make the art world look good. Those outside the art world would be mistaken to think that there is something unusual about the dispute, however. Strong disagreements about attribution flare up every day and regularly drag on for decades (ask the Rembrandt Research Project, for example). Those on the inside know the main difference here is the rare interest of the media in an art world story.

    We do feel that the media coverage of the Matter Affair has been unbalanced and badly informed (often willfully so, it seems), based on wild speculation and innuendo more than on good research and solid sourcing. For the most part, recent news articles have simply repeated allegations that were made months ago. We have made these few posts in the hope of broadening the perspective of our readers, if only a tiny bit. We feel that truth is complicated, emerges slowly and sometimes in unexpected ways, and often defies first impressions, which are usually dead wrong. In our view, good journalism requires strong intellectual curiosity and persistent questioning of one’s own assumptions, not moral certitude. It is an exercise in epistemology not the flaming sword and the swollen ego. To our regret, many in the media seem to hold different views.

  3. Thomas Garvey on September 21, 2007 at 12:53 pm

    Yeah, yeah, I get it – I’ve got a swollen ego and a flaming sword – meanwhile you’re cowering behind a bad avatar, and insinuating that a straightforward appraisal of the facts so far, combined with a sensitive response to both Jackson Pollock and the Matter paintings, is somehow wrong. The problem with your most recent whisper campaign is that even if we discount my perceptions, the Matter case would still be a terrible case on which to build an expansion of the “fair use” doctrine. There may be a case that could legitimately form the basis of such an expansion, but this is almost its antithesis in every respect: an unconvincing curatorial position in defiance of physical evidence, millions of dollars at stake, and a defendant who is clearly attempting to manipulate copyright law to his own monetary advantage. Surely you can see that – and if you can’t, then readers should bear your cognitive challenges in mind when assessing your aesthetic claims.

  4. Anonymous on September 21, 2007 at 3:59 pm

    To correct a few more misstatements of fact:

    As we have said in the past, we do not consider a subjective evaluation based on news reports and internet images to be “a straightforward appraisal of the facts so far, combined with a sensitive response to both Jackson Pollock and the Matter paintings.” We suggest, for starters, that Mr. Garvey spend a couple of hours in the McMullen exhibition and read its catalogue. Then we can talk about “the facts so far.”

    We do not see anyone at the McMullen “defying physical evidence.” What the conservator’s reports have presented so far is an analysis of artists’ materials in the Matter paintings and opinions (and they are only opinions, not scientific facts) about whether Pollock could have had access to them during his lifetime. Both the McMullen exhibition and its catalogue fully describe these opinions in detail and do not “defy” them. No one, to our knowledge, has challenged the accuracy of the conservator’s physical analysis of the pigments themselves.

    Both the released conservation reports express considerable uncertainty about the history of modern pigments. Newman further points out that the basic database of Pollock’s pigments is extremely incomplete and the whole issue of what materials Pollock used and when is only beginning to be studied. The fact that some of the Matter works do not contain “anachronistic” materials adds to the general atmosphere of uncertainty about prospective dates for the Matter paintings. To claim that all this, or the various unconfirmed theories regarding Pollock’s use of fractals, add up to “scientific proof” is to seriously misunderstand the nature of science.

    For those truly interested in the epistemology of this case, we recommend the catalogue essay by Nicholas Eastaugh of the Pigmentum Project at Oxford University. “With much of the debate on the [Pollock Matter Affair] played out in the media,” he writes, “occasional public statements, and discrete reports released on the internet rather than academic peer review, it can be difficult to disentangle truth from fiction, the objective from the subjective.” We entirely agree.

    Finally, there is no “defendant clearly manipulating copyright law to his own monetary advantage.” The defendant in any potential copyright suit would be Boston College, as publisher of the McMullen catalogue, not Alex Matter. Anyone who purchases an interest in the Matter paintings might be entitled to sue Alex Matter for fraud if they felt they had been deliberately misled. But we haven’t heard of any such in the offing.

    We grow weary of Mr. Garvey. Let him absorb and consider all the available arguments before he repeats his own yet again. Otherwise, we will assume he is not really interested in ours.

  5. Thomas Garvey on September 22, 2007 at 10:17 am

    You know, your intransigience is almost funny, particularly when you primly, but mistakenly, refer to “statements of fact.”

    Well, here are a few of your own “statements of fact”:

    As we have said in the past, we do not consider a subjective evaluation based on news reports and internet images to be “a straightforward appraisal of the facts so far, combined with a sensitive response to both Jackson Pollock and the Matter paintings.” We suggest, for starters, that Mr. Garvey spend a couple of hours in the McMullen exhibition and read its catalogue. Then we can talk about “the facts so far.”

    Nice try, but of course I’ve seen the McMullen show, “in the flesh,” as it were – I saw it as quickly as I could once it opened. It certainly did not change my mind about the Matter paintings – although of course they look more vibrant in the flesh, they are also even more obviously not by Pollock – if the McMullen had hung Pollocks in the same room with them, this would be more obvious.

    You also write:

    “We do not see anyone at the McMullen “defying physical evidence.”

    Really? Not even indirectly? Surely a scholar’s first allegiance is to empiricism, and the empirical evidence indicates that something like two-thirds of the Matter paintings were not painted during Pollock’s lifetime. Any real scholar would have scuttled this show right there, perhaps while waiting, as you persistently bleat, for further study. But no, the McMullen soldiers on with a strategy I feel is designed to co-opt their critics while – coincidentally, no doubt! – subtly help to move Matter’s goals forward.

    You also write:

    ” The fact that some of the Matter works do not contain “anachronistic” materials adds to the general atmosphere of uncertainty about prospective dates for the Matter paintings.”

    No it doesn’t – this is an obvious fallacy. I can recommend any number of good courses in logic and philosophy at local night schools to help you out with this confusion.

    Regarding your quibble on my use of the term “defendant” – technically fair enough, but all I can say is – oh, please. Isn’t a basic problem here the perceived lock-step of the publicity-seeking interests of the McMullen and the monetary interests of Alex Matter?

    As for the “epistemology of the case” – if you agree with “The Pigmentum Project” that it’s “difficult to entangle truth from fiction, the objective from the subjective,” then you should pipe down until said strands are disentangled (I’m conveniently free from this injunction, of course, since I have little sense of such entanglement!).

    You’re right on one point, however – I’m not interested in your “arguments,” because, quite simply, neither are you; if you were, you’d claim them as your own. Perhaps what’s most irritating about you – and what makes your calls for openness and balance so blatantly hypocritical – is that you make your insinuations under a pseudonym, an action which is inconsistent with intellectual or academic honesty. In short, we grow weary of your cowardice. Please absorb the time-honored case for the virtue of honesty before you repeat your arguments again.

  6. […] MoMA and the Pollock-Krasner Foundation stayed silent about the app, the paintings by Pollock are copyrighted and technically could give rise to an infringement claim. It would be interesting to see how […]

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