The Supreme Court Looks at Art, and Other News

A decision sides with an artist against the Andy Warhol Foundation; Germany returns art to Benin but gets a surprise; blue-chip, boring art falters at auction

I t’s ancient days to me, but some readers will be surprised to learn that I’m a lawyer. Though I went to law school and practiced in ink-and-quill days, I’m still a member of the Connecticut Bar Association. That said, at this point my competence is much eroded by time. I officially retired years ago when the Connecticut legislature put a head tax on lawyers. I didn’t hate the practice of law. I left to go into full-time political life and then, a few years later, got my art history Ph.D. and became a curator.

“Brian will go to law school,” everyone said, and I’m certain young people are more likely to defy expectations now. On my first day at the law firm, a quivering associate, I went to a residential closing with a new partner. It devolved into a fistfight between my colleague and the buyer. Our client, praise the Lord, was the seller. The buyer slugged the freshly minted, full-of-himself partner after one-too-many snotty barbs about the buyer’s pre-closing inspection demands.

I could see it coming. I’d worked as a clerk in our little town hall in Ye Olde North Haven in Connecticut when I was in college. I knew the red-faced, vein-popping, wild-eyed look. I’d see it in crazy people who’d bring their dented garbage cans to the town hall.

“So this is life in a white-shoe firm,” I thought. “Add brass knuckles to my new job attire.”

All in the deep, dark past. I thought about my short time as a lawyer while I read the Supreme Court decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith, issued on May 18. I hadn’t read a Supreme Court decision in years, but this one involves art and is illustrated with female nudes by Titian, Giorgione, and Manet.

It’s a narrow decision but a good discussion of the fair-use exemption to copyright-infringement law. In 1981, the artist Lynn Goldsmith photographed the musician Prince. Goldsmith granted a one-time license to Vanity Fair to use her photograph as the basis for an illustration — doctored by Andy Warhol — for an article on Prince. Goldsmith later learned that Warhol made a silkscreen edition of the illustration that he then sold and that the foundation, after his death in 1987 and Prince’s death in 2016, received $10,000 from Condé Nast, Vanity Fair’s publisher, to use Warhol’s silkscreen in a special issue on the pop singer.

Goldsmith, who was paid nothing for the second use and wasn’t credited, sued the foundation and Condé Nast. She said the 2016 Vanity Fair piece was a second use of her photograph for the same purpose. The defendants claimed that Warhol’s alterations of Goldsmith’s photograph made the image of Prince a critique of the culture of celebrity and consumerism. The alterations, they argued, were so extensive that Warhol transformed Goldsmith’s work into something entirely new. That’s covered by the fair-use exemption, which applies to teaching, research, scholarship, criticism, and comment.

The Court sided with Goldsmith. Both uses of the Warhol image were commercial, both were used as portrait illustrations, and Warhol’s adjustments weren’t transformative enough to make it social criticism. Warhol’s Soup Cans from the early ’60s, Justice Sotomayor wrote for the majority, weren’t about advertising soup. Rather, they concerned the cult of mass-marketing.

I’m skeptical. On the one hand, I’ve written about Warhol’s steep decline as an artist after the late ’60s. He was a visionary for a few years via his Marilyns and Jackies and his car-crash prints, but he is most generously seen as a celebrity and magazine publisher. Fiddle with Goldsmith’s work as he did, it’s banal and derivative, not, as Kagan says, “biting” or transcendent.

On the other hand, judges aren’t art historians, and I wouldn’t call lawyers especially observant. Deciding what’s “transformed” and what’s merely “tweaked” seems too subjective a judgment and creates uncertainty and hesitation among artists fearing they’ll be sued. It seems like an invitation to a quagmire. If a decisive issue is commercial use, a judge might decide today’s Titian swiped today’s Giorgione because both painted nudes meant to be sold to patrons.

Kagan’s dissent was great legal writing. Most writing by judges is as dry and inert as Death Valley. Kagan writes with gusto about the debt to past artists owed by Shakespeare, Nick Cave, Francis Bacon, the Byrds, Live Crew, and Robert Louis Stevenson. Picasso, the subject of my story this past Thursday, said “good artists copy, great artists steal.” I hope this decision doesn’t start an appropriation war.

Art and Empires

 

I’ve written a couple of stories about Greece’s hotted-up efforts to persuade the British government to return the Parthenon sculptures in the British Museum. One day the Brits will succumb. Imperialism and colonialism are elite bugaboos.

Ottoman Turkey, which controlled Greece when Lord Elgin took the sculptures to Britain in the early 1800s, wasn’t a colony, it was its own empire, but no matter. The ruling sultan authorized Elgin to take them, but again, no matter.

There’s no evidence the British Museum doesn’t own them, but who looks at evidence these days?

A few years ago the director of the British Museum cautioned do-gooders in the U.K. who were taking Greece’s side. Demands for restitution would cascade until the place was emptied. The Egyptians are already demanding the Rosetta Stone. India now wants the Koh-i-Noor diamond back. That’s the 105-carat rock adorning Queen Mary’s crown and living in the Tower of London with the rest of the Crown Jewels. It came to Britain, along with the Punjab, by the Treaty of Lahore at the end of the Second Anglo-Sikh War in 1849.

Restitution demands are very rarely clear, neat, or tidy. The Benin bronzes are back in the news. These treasures, and there are thousands of them, belonged to the obas, or kings, of the Edo people in southwest Africa. They’re intricate sculptures, most made from brass, creating a visual history of the Edo over a thousand years. In 1897, a British force sacked the oba’s palace in retaliation for a massacre of British diplomats by Edo troops. The Brits took the bronzes as war booty and sold most of them to pay for the expedition. Almost all of them have landed in museums. The Nigerian government, which now rules the Edo, has been agitating to get the bronzes back. One by one, museums in America, France, Britain, and Germany are agreeing to return them.

The German federal and state governments have already transferred ownership of a thousand objects to the Nigerian government, though fewer than 25 have actually been returned. A few months ago, German officials got a rude awakening. The Nigerian president gave them to the oba of the Edo people, who plans to keep them in the family palace and, possibly, build a museum next to it . . . someday. The Germans believed, naïvely, that the art would go to a new Edo Museum of West African Art run by the Nigerian government. The architect David Adjaye, who designed the African-American History Museum, has been hired for the project.

Many think German pols got snookered. German cultural elites and the officials who agreed to send the bronzes back are mortified and defensive. They’ve been made to look foolish and vain.

“If you restitute with conditions,” a German MP said, “why bother. . . . Restitution with conditions is neo-colonialism.” Well, yes but no. If we see the bronzes as chattel, then, by all means, send them back pronto, and que será, será. The objects, though, are art, and the German museums that have tended to these things for more than a hundred years need to know they’ll get good care and also that they’re used for the edification of the public.

The obas ruled what was for hundreds of years a West African imperial state — in other words, a colonizer — with deep roots in Portuguese slave-trading. Should this be a factor in who gets the restituted goods? I think so. Why reward a family up to its eyeballs in the slavery and exploitation business?

The optics aren’t good.

Auction Action

The evening sale of the collection of Boston real-estate developer Gerald Fineberg was close to a bomb. Christie’s expected $163–$235 million, excluding about 35 percent more in buyers’ and sellers’ fees. The total haul, with fees, was $153 million. I wasn’t surprised. Art by Jeff Koons, Gerhard Richter, Christopher Wool, and Richard Price is blue-chip, boring art masquerading as bleeding edge.

It was a revealing sale since there were no in-house or third-party guarantees, which means raw market dynamics were at play. The economy’s soft while the end of easy money makes assets like art less attractive. I heard that Christie’s and the Fineberg estate lowered the confidential reserve prices — the bottom line in what they’ll take — to avoid a surfeit of buyerless, burnt art.

Sotheby’s two evening sales got big bucks for Klimt, Magritte, Joan Mitchell, and Jean-Michel Basquiat but totaled a scootch below the low estimate.

Women artists did well at both auction houses. Simone Leigh’s Las Meninas II from 2019 sold at Sotheby’s for $3,085,000, a record for Leigh, on an estimate of $2.5–$3.5 million. It’s made from terracotta, porcelain, steel, and raffia and is, for her, a signature form. She’s not a bad artist, but she’s certainly been hyped to the moon and back. Whoever bought it is the fifth owner, which shows that Leigh’s work is a bubble or, worse, gets boring fast.

Louise Bourgeois’s Spider bronze from 1996 — 10 feet tall and 18 feet across — sold at Sotheby’s for $32.8 million, not far from the low estimate but still a record for her. Alma Thomas’s Fantastic Sunset, with a psychedelic 1970s palette, went for $3.2 million, over its high estimate, in the Fineberg collection at Christie’s. It’s a picture that makes people happy, and what’s bad about that?