The Hoffman Law Firm

A Movable Feast for a Troubled Time

2025-11-24T05:26:47Z

Art World insider Barbara T. Hoffman’s* guide to navigate the implications of current developments in art law as they relate to artists, collectors, galleries and museums, as well as a forum for the discussion of the implications of current events at the intersection of art, law, politics, and culture for the art world and beyond.

How the Paris Art Scene Resists When Democracy Falters

By Barbara Hoffman © November 04, 2025 I have returned to Paris often enough that the city is no longer a destination but a process of thinking. Arrival here is rarely neutral. As a student in the late 60’s in Paris, I supplemented my undergraduate exposure as an art historian and French major immersed in the literature and philosophy of the past from Racine, Pascal, Voltaire, Moliere, Balzac, Baudelaire, Rimbaud, Proust, Camus and Sartre, with the ground-breaking French philosophers and intellectuals of the time, several of whose classes I was privileged to attend. Claude Levi-Strauss and Jean Piaget, believed that human thought and behavior are based on underlying, universal structures. They shared a “structuralist” approach, focusing on the interconnected systems and relationships that shape mental and cultural phenomena. Michel Foucault’s philosophical work focused on the idea that knowledge and power are inseparable. All ideas convey power that alters human behavior, and institutions primarily serve as organized attempts to manipulate individuals for particular ends. Foucault criticized historical Western classical-liberal norms for concealing power impositions under the guise of humanitarianism and rationalism. Roland Barthes asserted that the meaning of a text or work is not limited to the author’s intention. On the contrary, it is multiple, shifting, and nourished by the interpretations of readers/viewers. French anthropologists, philosophers, psychologists, psychoanalysts, and poets - were radically changing how we understood the world, knowledge and humanism. These critical theories offered and urged acceptance of the challenge to denaturalize social, aesthetic and linguistic norms and open up new ways of seeing and acting upon the world. The 60’s and early 70’s were years of political trauma and uprising in France and the United States. For those who know the history, this is not the first time Paris has hosted the collision of art, law, and political upheaval. The spring of 1968 turned the Latin Quarter into a rehearsal space for new forms of public life — not just protests. Posters, slogans, manifestos, improvised cinemas, print shops, and collective seeing animated the courtyard of the Ecole des Beaux Arts and the streets which surrounded my neighborhood. Martin Luther King Jr. and Robert Kennedy were assassinated while I was in Paris during the events of 1968. Protests against racism, the war in Vietnam, attacks on homosexuals, and discrimination in employment and voting continued unabated on the streets and campuses in the USA. The lesson is not that 1968 can be repeated but that culture becomes political not when it demands agreement, but when it demands attention intended to provide the critical underpinnings and tools for dealing with the traumas caused by colonialism, racism, homophobia, misogyny. By demanding attention, culture, in this case as expressed through art, politics and law, encourages dialogue and reflection on these issues, offering philosophical frameworks and critical tools to navigate the complexities of identity, power, and justice. Paris in 2025 is not Paris in 1968. But the echo remains: art once again asks not what we think, but how we see.

Paris in October: The Movable Feast and the Work of Seeing

Paris has always been a stage for art, politics, memory, and spectacle, a city where institutions narrate history and the streets rehearse its future. To come in late October or November is to enter a season when the art world contracts and intensifies at once. Museums unveil major exhibitions; fairs garner their markets and rituals. Even ordinary looking may be reframed and charged with consequence. Last year’s highlights were the successful recapture by Art Basel Paris of the recently restored Grand Palais, an Art Nouveau exhibition hall originally built for the 1900’s World Fair, and my restoration to the status of VIP d’Honneur 10 am, with access en principe to a BMW; Mark Rothko, at The Foundation Louis Vuitton, and the 100th anniversary celebrating the birth of Surrealism at the Centre Pompidou. This year, the question was not whether Paris might offer escape from the attacks on democracy and the rule of law occurring elsewhere. The city of light does not promise refuge. Paris draws us, like a magnet to the moveable feast of our youth, an ever- shifting confluence of action and theory, its bright beacon illuminating for all who choose to observe the dynamics of power, institutional responsibility, and the role of art in a destabilized civic order. To write from Paris in November 2025 is to write from a place where the spectacle of culture meets the machinery of law, where museums defend their relevance while markets define value faster than criticism can keep pace, and where the line between political event and cultural gesture grows thinner each season. It is also inevitable as a lawyer/observer to write through the lens as someone trained to unearth facts and observe process, watch where power collects, and how it is justified, resisted, or manipulated. But in October 2025, the city felt less like an ideal and more like a mirror: a place where the same pressures facing cultural institutions elsewhere—censorship, market capture, donor influence, political oversight, public exhaustion—are not avoided but exposed. The diary notes that follow are not a travelogue. They are a working record of how Paris stages the relationship between art and democracy at a time when both are under strain. In this season, the work of seeing is not passive. It is a civic act.

The Art Fair Circuit: Does the Marketplace Become a Forum?

Every October, Paris becomes the temporary capital of the global art market. What has come to be known as Paris Art Week is a choreography of VIP previews, tiered access, speculative buying, institutional courting, and rapid valuation. Access is currency here, and status appears not as taste but as architecture suspended on the cliff of theater. Art Basel Paris (formerly FIAC) takes over the Grand Palais, and there are a host of satellite fairs: Paris Internationale and Asia Now in their tenth edition, as well as Offscreen in its fourth edition, are amongst my favorites. Offscreen, which highlights installations, and still and moving images, was founded by Julien Freydman, the former Magnum, then Paris Photo director. The late Shigeko Kubota pioneering Korean video artist, aka wife of Naim June Paik, was honored this year with an exhibition of video works, largely unknown in France. Offscreen was sited this year appropriately at the Chapelle Saint-Louis de la Salpêtrière, part of the historic complex founded by Louis XIV in 1656. It nudged out the Grand Palais as the most relevant architectural and politically resonant fair venue, in keeping with historical, aesthetic and philosophical themes of other exhibitions. The hospital is shrouded with a notorious history of the treatment of “mad women” and the diagnosis of hysteria in women. The latter is the legacy of nineteenth century Dr Jean-Martin Charcot whom the French recognize as the father of modern neurology. Charcot’s Iconographic Photographique de la Salpêtrière (1876-80) is a landmark publication in medical photography. This collection of texts and photographs represents the female patients of Dr. Charcot at the Salpêtrière hospital and asylum during the years of his tenure as director. His classroom presentations of female hysteria in his patients became theater spectacle for “toute Paris”, including Henri du Toulouse Lautrec, and students, like Sigmund Freud, who translated his work into German. The Surrealists as well as artists like Egon Schiele were also influenced by these studies. The lens of French Theory, particularly, Michel Foucault, was relevant historically in 1968 and is today, to provide a narrative to understanding this institution of madness and hysteria. So, too, is Convulsive States (2023), by video and performance artist Liz Magic Laser. Her original installation and exhibition at Pioneer Square in 2023, critically and brilliantly explored the shaking body as both a symptom and a cure for psychic distress, in part, through the artifice of a hallucinatory investigative report that feverishly pursues the cure for hysteria as it uncovers mysteries at the Salpêtrière. Offscreen offered many installations overtly or conceptually distinctly political charged. Not surprising, where the hospital’s control over bodies, women and other marginalized persons is embedded in the stones. The installation of Quentin Le Franc, which questions how art responds when democratic space contracts, seems particularly appropriate to the historical, social and cultural history of the site. The architecture serves as a framework, territory and playground for the installation to create a dialogue between the historical context and the artwork. The Art Basel brand is unapologetically and successfully associated with quality and commerce: the Grand Palais is a perfect site for its ambitions. Yet, and through no fault of the architecture, any sense of community and collegiality is in the imagination. To the extent the VIP program of FIAC (Frances’s signature contemporary and modern art fair for 47 years, before the takeover), promoted this community and salon of ideas, it is lost in this art world dominated by mega-fairs and mega-sales, largely, one might imagine, for investments. Basel Paris has still to learn about how physical not virtual community and conversations promote sales and value. Without any training in the subject of psychoanalysis, I am at a loss to understand why attendees as Vip’s at Art Basel, mass at the gates and in the aisles like shoppers in search of a deal at “Black Friday”; yet to my knowledge never acknowledge their similitude or convergence with this other community of bargain hunters. Paris’ satellite fairs thrive on something else: intimacy, inclusivity, experimentation, and belief in the potential and message of the artists represented.

Museums, Memory and the Politics of Exhibition

If fairs are where value is made, museums are where meaning is negotiated. This season, several major Paris institutions mounted exhibitions that engage either explicitly, or implicitly with the question of historical memory and democratic fragility. Paris’s primarily government funded institutions, arguably were never neutral cultural terrain. The Louvre, Pompidou, Musée d ’Art Moderne, Quai d’Orsay, Palais de Tokyo were built not just to preserve art, but to define what counts as art, what counts as history, what merits exhibition and who is authorized to speak. In the past decades, at least three major private collections add different voices and perspectives, through the exhibition of works of their owners, commissioned works and loans for exhibitions. Obviously, these private institutions incorporated as museums or non-for-profit subsidiaries of luxury brands could not exist were it not for the luxury brands and the fortunes which fund their “owners” passions, tastes , collecting and exhibitions: The Cartier Foundation was founded in 1984; Bernard Arnault officially commissioned the Fondation Louis Vuitton, and the project was publicly announced in October 2006, after the concept and architect, Frank Gehry were selected in 2001; and the Pinault Collection founded 1999, Paris, 2021. All have block buster major exhibitions on view through January, 2026, with only the Cartier inaugural exhibition to coincide explicitly with the festivities of Paris Basel. Whether by coincidence or confluence, I noted a synergy amongst the various exhibitions selected for this article. Perhaps it is the convergence of the 100th year of the birth of Surrealism and the 100th of Art Deco. In October, 1925, the International Exhibition of Modern Decorative and Industrial Arts in Paris, marked the peak of Art Deco. Decorators, manufacturers, magazines, department stores, artists, and even foreign nations competed fiercely to occupy Parisian buildings or erect temporary structures to display their latest creations, at or adjacent to the selected site, the Grand Palais. The destabilization of the world order, attacks on the rule of law, the rise of fascism, conflicts, and genocide and the disappearance of facts as we know them, have provoked responses of the art world and the broader question of the role of the artist and art in these times. Several of the exhibitions may have been planned before the current authoritarian threats to democracy, specifically free speech and the press and denials of facts derived from credible documentary and scientific evidence. Can these exhibitions create a bridge between these alternative worlds and modes of thought? The artists and exhibitions on view provide remarkable and appropriate models for hope and transformation to a more equitable and harmonious world, whether such art is influenced and fueled by poetry, magic, imagination, Surrealism, French Theory, Buddhism or variants thereupon. Michel Foucault and Roland Barthes were significantly influenced by Surrealism, particularly in its challenge to rational thought and traditional structures of meaning. Surrealism, through its emphasis on the unconscious, dreams, and “pure psychic automatism,” sought to bypass conscious, rational control to access a deeper reality. This devaluation of the rational mind resonated with post-structuralist thinkers who critiqued the dominance of reason and objective truth in Western thought. Exhibitions in Paris reflect these historical trends of poetry and spirituality on the one hand and politics on the other.

Palais de Tokyo —Echo, Delay, Reverb: American Art and Francophone Thought

22 October 2025 – 15 February 2026, Artistic Director Naomi Beckwith and Elvan Zabunyan Curated as dialogue rather than thesis, Beckwith questions what happens when cultural history is not linear but recursive so images return but are altered by power. Even though I participated as a law professor in an academic group originating at the Harvard Law School inspired by French Theory in the 1980’s, called Critical Legal Theory, which included Professor Derrick Bell, the founder of critical race theory. The basic principle of critical theory imported from French theory is that the law and the legal system are not based on neutral principles but context and power based. Critical Theory birthed in Frankfurt, Germany, during the Nazi period, whose advocates included Juergen Habermas and Walter Benjamin; from the former, derives that the notion of the public sphere, the latter, the notion that “mechanical reproduction, through technologies like photography and film, strips an original work of its unique aura, fundamentally altering its function from being based on ritual to being based on politics and mass exhibition. Their influence was more profound on earlier generations of artists, art critics and art historians, through the 1980’s. in the United States, and of course on certain German artists. I was unaware of the huge impact Beckwith claims for French Theory on United States artists and artistic practice, having left the arena of academics in 1986.I was also unaware of the role played in the dissemination of French Theory by the Whitney Independent Study (ISP) Program. Beckwith is an alumna. The program has been suspended for 2026 by the chilling effect of President Trump’s attacks on wokeism, freedom of speech and artistic expression. In May, a performance at the Whitneyinvolving Palestine was also cancelled. Echo, Delay Reverb purports to show how artists in the United States catalyzed the revolutionary energies of thinkers who were by turn activists and poets – from Simon de Beauvoir, Michel Foucault and Jacques Derrida to Frantz Fanon, Jean Genet, Aimé Césaire, Monique Wittig, Pierre Bourdieu and Edouard Glissant – to transgress genres and shift perspectives on the world today. Beckwith’s thesis is that reading the work of these authors helped artists in the United States to translate their ideas into unexpected forms and to forge tools with which critique institutions of the art world and of society as a whole. For them, theory has not been a gloss but a powerful impetus for denaturalizing social, aesthetic and linguistic norms and opening up new ways of seeing and acting upon the world. A chilling effect has not prevented the excellent resource and text book (not a catalogue) which accompanies the exhibition. It pays homage to Palestine and its flag in red, black, white and green, is in memory of Felix Gonzalez Torres an alumnus of ISP who created an artwork on this theme, and is offered as a tool kit for resistance and hope in this chaotic time. This work of Allora & Calzadilla references and pays homage to a meeting of which took place in Martinque at a stopover in a ship in April 1941 between a group of artists and writers: Surrealist Andre Breton, Wifredo Lam and Claude Levi Strauss, and Martinican poets Suzanne and Aime Cesaire, fleeing from Nazi occupied France. Lam and Aimé Césaire and they formed a lasting friendship, inspired by Cesaire's Tropiques magazine and his poem Cahier d'un retour au pays natal. I was fascinated by this installation and its historic evocation. Delving deeper in Ai, I learned that, unlike the wall label which suggests after the principal meeting the group went hiking together which greatly influenced their subsequent art and writings, the exiles were interred in a holding camp “Bel Air” for forty days. Lam returned to Cuba, where the influence of the encounter in the jungle is said to have inspired The Jungle, 1943 (see Part 2) and his deep commitment to poetry and Surrealism. While Beckwith only suggests the influence of Surrealism poetry, spiritualism and magic on contemporary artists of color in the United States. magic, and poetry on contemporary African American artists, the decision allocate adjacent space to a retrospective of Mel Edwards, provides the perfect bookend to the narrative. The same year that Jungle was created, the writer Benjamin Péret’s contribution to a 1943 issue of Tropiques was in the form of a preface to Césaire’s poem “Cahier d’un retour au pays natal,” which was illustrated by Lam. “For the first time,” Péret wrote, “a tropical voice resounds in our language, not to mediate an exotic poetry, trinket of bad taste and mediocre interior, but to burst out in an authentic poetry issuing from the rotting trunks of orchids and the electric butterflies devouring carrion… His poetry has the sovereign allure of the great breadfruit trees and the obsessive accent of the voodoo drums. In it, black magic heavy with poetry is opposed to the point of rebellion against the religions of the slavers where all magic is mummified, all poetry dead forever. (quoted in Tropiques 6-7 [Feb. 1943], p. 60). Echo Delay Reverb, while not giving attention explicitly to Surrealism, finds some of the qualities linked to emotion, poetry in politics in sections labeled “Desiring Machines” and” Abjection.” Regarding the latter, the text states that The book Powers of Horror (1980) by philosopher and psychoanalyst Julia Kristeva popularized the notion of the abject in the United States. At its core, the abject reflects conditions of existence: in the 1980s, marked by the AIDS epidemic, an imaginary of regression and catastrophe resurfaced within a society marked by the violence of neoliberal economics on certain populations. “David Hammons, Cindy Sherman and Mike Kelly embraced “abjection” in the 1970s and 1980s, as did Pope. L, whose monumental installation The Polis or the Garden or Human Nature in Action (1998–2025) has been reactivated for the exhibition: 1,200 onions painted in primary colors arranged on tables will sprout and eventually rot, in an allegory of life as resistance to social and nationalist order.”

Pope.L, Polis or the Garden or Human Nature in Action, 1998/2015. View of the exhibition “William Pope.L - Trinket”, The Geffen Contemporary at MOCA (Los Angeles), 2015 Courtesy Pope.L Estate, credit: Barbara Hoffman

Melvin Edwards — Palais de Tokyo

Part of the “Echo, Delay, Reverb” season After Nazism, the Eurocentric conception of the human as a central value was challenged by many postwar intellectuals. Frantz Fanon, a philosopher and psychiatrist from Martinique with the seminal Wretched of the Earth (1961)as well as the poets of Négritude Aimé Césaire, with his Discourse on Colonialism (1950), Suzanne Césaire, and Négritude co-founder, the poet Léon-Gontram Damas from French Guiana ,contributed to this critique of humanism by highlighting the dehumanizing character of the colonial and racist project that structures Western societies. Mel Edwards was a close friend of Damas and dedicated a major five-part work, Homage to the Poet Léon-Gontram Damas (1978-1981) (pictured below), to him. This connection highlights the influence of Négritude's ideas, which centered on affirming Black identity and culture against the backdrop of French colonialism and universalism, on Edwards' practice. Edwards’ long-standing sculptural language—barbed wire, welded steel, forms evoking captivity and resistance can be read differently in 2025: the question is no longer how violence is remembered, but how it is normalized.

The Poetics of Resistance: Beyond Identity, Beyond Didacticism

If the Palais de Tokyo exhibition is undergirded with theory—structural, academic, curatorial—another artistic response has emerged in Paris this season: a poetics rather than a manifesto. An amalgam of French theory, surrealism, in varying degrees, these artists, turn toward imagination, and poetics rather than argument. While art may be understood as post didactic, it is not post-political,. Artists who refuse to reduce themselves to representation yet refuse to abandon the political stake of the moment. This is visible across several exhibitions, but most clearly in three figures whose work moves past identity categories while being inspired by culture and context, to forge something speculative, visionary or poetic.

Stephanie Jemison — artist-in-residence, Galeries Lafayette Anticipation
Gerhard Richter — retrospective at Fondation Louis Vuitton
George Condo — retrospective at Musée d’Art Moderne

Each confronts history without merely illustrating it; each invites viewers into a mode of attention that is not instructional but transformative.

Stephanie Jemison — Galeries Lafayette Anticipation (2025–26 season)

Jemison’s work treats language, gesture and futurity as forms of refusal. Her films, texts and performances engage Afrofuturism not as fantasy but as method: a way to make space where dominant narratives refuse it. Rather than depict identity, she disassembles it—turning the viewer from spectator into decoder. Jemison is one of the clearest reminders that art does not need to choose between politics and poetry; it can make politics legible only through poetry. This installation is a powerful interweaving of physical phenomena with histories of Black liberation and political resistance. It transforms the gallery space into a site for profound reflection on the visible and invisible forces that shape human movement and memory. In 1831, Nat Turner, a plantation slave in Virginia, witnessed an eclipse, interpreting it as a sign for rebellion. Clear Skies/ Troubled Waters examines revolt and repression from 1831 to race riots in Boston Newark and Detroit in the summer of 1967 through natural phenomena (eclipses, wind patterns, variations in light and gravity).

Gerhard Richter — Foundation Louis Vuitton

17 October 2025 – 2 March 2026 A six-decade retrospective, including the politically loaded 18 October 1977 cycle—Richter’s blurred images of the Red Army Faction suicides in German prison. Once controversial, now newly resonant in an age when state violence is both hyper-visible and structurally denied. Richter famously said: “Art is the highest form of hope.” These are not contradictions. They are twin recognitions: that truth is fugitive, and hope requires form. Richter’s abstractions do not resolve history—they hold it in suspension.

George Condo — Musée d’Art Moderne de Paris

10 October 2025 – 8 February 2026 Condo states that he views his art as a psychological exploration of human nature, utilizing art historical language and the actualization of philosophical content. Condo has lived in Paris, and has referenced French theorists, including reading Gilles Deleuze and Felix Guattari’s analysis of Francis Bacon. His work has also been discussed in the context of Georges Bataille’s ideas of transgression and the questioning of certainties. At a discussion at Hauser and Wirth in February of this year when asked about the current US political situation and attacks on freedom of expression, he stated. “This is sort of a moment in politics where, you know, without really discussing politics, that people just sit there and wonder, am I gonna be allowed to be what I am and do what I want to do?... Who is going to come along and set me free from this situation that we’re in,” he said.”… Art offers a powerful antidote to political constraint. As an artist, you can do that with your art, and art has that power to liberate its subjects from any kind of constraints that may be imposed by any form of, you know, let’s call it political disaster,” he said. His figures, distorted but unmistakably human, resemble not political portraits but the emotional ruins politics leaves behind. Condo’s Black Series—Expressionism twisted into psychological architecture—returns at a moment when fracture has become a global norm. His figures, distorted but unmistakably human, resemble not political portraits but the emotional ruins politics leaves behind. Particularly suitable to our current political crisis of democracy, in his black paintings, George Condo explores themes of the human condition, psychological fragmentation, and the tension between chaos and control. If democracy is faltering, Condo’s paintings show the internal weather of that collapse. Not critique, but aftermath.

Philip Guston — Musée Picasso

14 October 2025 – 1 March 2026 Once delayed for fear of public controversy, the Guston exhibition now lands in a world where controversy is constant, and avoidance looks like complicity. The hooded figures return—not as symbols of race alone, but as warnings about what happens when violence goes unexamined long enough to become cartoon. The museum now asks viewers not whether the work is offensive, but whether our being unoffended has made us politically numb. As important, at the book store of the Museum, I found two books of Walter Benjamin, as books relevant to the exhibition. I purchased Benjamin's famous essay, “The Work of Art in the Age of Mechanical Reproduction”. Philip Guston was directly familiar with Walter Benjamin's writings, particularly his concept of “art as ruin” and theory of allegory, and referenced them in conversation, though there is no evidence the two ever met.

Architecture, Memory and the City as Argument

Paris is not just a city of exhibitions but of enacted arguments. Architecture functions here as a legal brief in stone—declaring what is private, what is public, what is preserved, and what is permitted to disappear.

Cité de l’Architecture — Paris 1925: Art Deco and Its Architects

22 October 2025 – 29 March 2026 A centenary exhibition marking Art Deco not as nostalgia but as a reminder that style is never apolitical. Art Deco was the aesthetic of interwar optimism—and of rising authoritarianism. The show includes works by Le Corbusier and others whose visions of order now appear double-edged: utopian, and disciplining. From 28 April to 30 November 1925, the Exposition Internationale des Arts Décoratifs was held in Paris, on or near the grounds of the Grand Palais where each country presented its most emblematic achievements in the decorative arts in temporary pavilions. There were two opposing architectural movements: the Art Deco style and the modernist movement, also known as the international avant-garde. Le Corbusier and Pierre Jeanneret were given a plot of land behind the Grand Palais for their project. His model scandalized the organizers by its modernism and commitment to low-cost modular housing. He also submitted a radical plan of urbanism for redoing Paris.

Fondation Cartier pour l’ Art Contemporain,

Exposition Générale, August 23, 2026 Cartier’s new venue, 2 Place du Palais-Royal is a radical overhaul of the interior of the five-story Haussmann- era block, which was originally built in 1855 as the Grand Hôtel du Louvre, before becoming the Grands Magasins du Louvre. Jean Nouvel, also designed the foundation's previous iconic glass building on Boulevard Raspail. The inaugural exhibition, which opened October 25 showcases 40 years of the foundation's history through approximately 600 works by over 100 artists. Nouvel’s design, once dismissed as spectacle, now reads as a proposition: museums must be legible from the outside or risk becoming citadels: glass, permeability, and civic transparency as architectural thesis. f The design emphasizes openness to the city with vast bay windows and glass roofs, creating a “fishbowl-like effect” where the urban landscape becomes part of the exhibition experience. Nouvel made the 5 floors entirely movable, both walls and heights to suit an installation or an exhibition. For many of us, this caused a slightly panicked experience as the rationality of traditional architecture and structural design was no longer a guide to our trajectory and we struggled in the dark to find a path to the elevator or exit. Perhaps that is the message: Democracy may involve chaos and lack of a clear path in its trade-off with authoritarianism. Freedom has a price. Democracy calls for attention. Looked at in another way, Ateliers Jean Nouvel studio director Mathieu Forest at the press preview explained, “It's unprecedented…Nothing is permanent – not the floor, not the walls, not the ceiling,” he continued. “You visit and then next time you may have an entirely different perspective.” What is remarkably interesting in the current exhibition of commissions over the years, is its diversity in the selection of artists from around the world, diversity in medium and out-of-the-box thinking of contemporary art. This is not market-driven art. The architecture of Nouvel seeks to mirror its spirit: the collection is forward looking, inclusive and prescient of the direction of art to come in a world of rapid change, technology, AI and globalism, climate threats, and an uncertain future.

Pinault Collection — Bourse de Commerce

Minimal — 8 October 2025 – 19 January 2026 The “Minimal “exhibition at the Pinault Collection's Bourse de Commerce in Paris explores the global and international evolution of this movement, which since the early 1960s, has radically reconsidered the status of artwork. As the catalogue states: the movement is characterized by an economy of means, pared-down aesthetics, and a reconsideration of the artwork’s placement in relation to the viewer. Artists across Asia, Europe, North and South America challenged traditional methods of display. This approach invited a more direct, bodily interaction with the art, integrating the viewer and the environment into the artwork itself. The Minimal exhibition is a counterweight to the spectacle of the fair. Minimal stages quietness as resistance: works by Judd, Kawara, Ryman, LeWitt, Dorthea Rockbourne, Maren Hassinger and Howardena Pindell refuse narrative, refuse speed, refuse distraction. In a season of overstimulated publics, the exhibition proposes attention as a political ace. As with Cartier, the exhibition, which is composed largely of Pinault’s collection, is avant-garde in the number of women artists over 50 who only recently have gained the prominence and market deserved. If democracy depends on attention, then attention must be trained — slowly, deliberately, against the market’s velocity.

The American Parallel: 2024 and the Shrinking Democratic Imagination

Across the Atlantic, the 2024 U.S. election showed what happens when democracy is treated as spectacle instead of structure. Legal systems bent, norms disappeared, fiction and fantasy replaced facts, and institutions once thought stable became stage sets for power. Since Trump’s Executive Orders, multiple American museums were attacked — not with fire, but with funding withdrawals, board interventions, legislative threats, and demands for “neutrality” that were anything but neutral. The cancellation of several Smithsonian exhibitions, would be based on my understanding of constitutional law for ten years in a law school, unconstitutional. The suspension of the ISP are unconstitutional but the current Court arguably has a different redacted copy of the Constitution and case reporters. As in the 1990’s a chilling effect has spread to cultural institutions: the ISP program has been cancelled for next year and a performance based on Palestine, cancelled in May. Although beyond discussion in this Diary, it would nevertheless be remiss to fail to mention that in New York, Philadelphia and elsewhere, there evidence in the form of “must see exhibitions” of “The Poetics of Resistance: Beyond Identity, Beyond Didacticism”. I mention in passing, the brilliant retrospectives, of Coco Fusco, Rashid Johnson, Wifredo Lam, Man Ray and the 100-year celebration of surrealism of Philadelphia to offer up vision as to art, politics and cultures can resist this moment of authoritarianism and provide a path to a democratic and inclusive future powered by imagination now.

The Politics of Attendance

To attend an exhibition now is not a cultural act alone. It is a civic one. Showing up to the museum, the fair, the talk, the archive is a declaration that public space still matters, that meaning is not fully privatized, that art still functions as more than asset class or décor. Absence, too, is political and institutions feel it. In a world where attention is monetized, the decision to give it freely is a form of rebellion.

Conclusion — The Lawyer-Observer Writes from Paris

If critique is the labor of attention, hope is its companion. Not naïve hope, but procedural hope. The kind that knows democracy is not guaranteed, that the law is not self-enforcing, that culture is not automatically public, but must be defended every season, every exhibition, every time we choose to look rather than scroll past. Paris does not offer answers, only rehearsals. It teaches us that art is not evidence, but inquiry. That museums are not mausoleums, but arguments. That fairs are not just markets, but weather reports for the emotional economy of a civilization under stress. That architecture remembers what politics forgets. That the work of seeing is still a public duty. That the poetry, meditation and imagination of artists like Coco Fusco, Jen de Nike and Stepfani Jemison can take us to another exterior level where alternative universes created by different facts transform at a level where the universe begins to acknowledge the oneness of all living beings and that we are all part of a giant ecosystem of life in the universe. And so, the phrase returns, not as nostalgia but as instruction: A movable feast. Not a celebration, but a practice. Not a refuge, but a rehearsal. Not an escape from history, but a way of looking at it without surrender.

Art is the highest form of hope.

— Gerhard Richter, Documenta 7 in Kassel, 1982. Barbara Hoffman Barbara T. Hoffman is recognized internationally and nationally as one of the preeminent art, intellectual property, and cultural heritage lawyers. With more than forty years of practice in every aspect of the field, Hoffman has been acknowledged by her peers with leadership positions in the New York City Bar Association and International Bar Association, elected to Super Lawyers, Best Lawyers.

Reflections on The 60th Venice Biennale: Foreigners Everywhere

2025-11-12T14:16:32Z

April 24, 2024 © Barbara Hoffman, 2024* Without having paid much attention to the origin of the theme and title of the 60th Biennale, I assumed it to be a response to the movements to the far right in Europe and the United States stoked by fear of the "other,” the "different”. Thus, I anticipated a Biennale focused on a selection of artists who oppose the negative notions associated with the “other” in their work, including the economic and power structures that have created the current problems of migration fueled by poverty and war. For those unfamiliar with the Venice Biennale, the title and theme are set by the selected curator as the basis for the curatorial agenda and selection of artists in the curated exhibitions at the Giardini (321 in this Biennale) and the Arsenale and the 86 National Participations in the historic pavilions at the Giardini, the Arsenale, and city center of Venice and its surroundings. The term "foreigners everywhere” seemed to focus on the viewpoint of the observer rather than on the subject, the "foreigner.” Which accepts the indigenous or “other” as the foreigner. However, after three days of exploring the national pavilions, the curated exhibitions, and the collateral events, I was stunned by the rich tapestry of imagination, ideas, intellectual musings, and multiple worldviews colliding to envision new futures to resolve the current global crisis. As John Akomfrah, the artist commissioned by the British Council, noted, in the final ensemble of installations in the pavilion of Great Britain, “Listening to the Rain,” iterations of acoustemology, which look at meaning and memorial from a different vantage point questioning the architectonics of the present and the specters of the past with the idea of listening and activism in mind, “I sense that one can know the world that you can find the name, and identity and a sense of belonging in this sonic. In the same vein of optimism, the artists in the Nigerian pavilion express this sentiment: Nigeria Imaginary, the Nigerian Pavilion, explores the role of both great moments in Nigeria’s history – moments of optimism – and the Nigeria of the mind — a Nigeria that could be and is yet to be. Presenting different perspectives and constructed ideas, memories, and nostalgias of Nigeria, Nigeria Imaginary leverages an intergenerational and diasporic lens to imagine Nigeria for the future. These voices are articulated via diverse mediums, from painting, photography, and sculpture to AR, sound, and film. This year's Biennale was curated by Adriano Pedrosa of Brazil, the first curator from the Southern Hemisphere. Like his processor of two years ago, the theme finds inspiration in a work of creativity. In this instance, the title "is drawn from a series of works made by the Paris-born and Palermo-based collective Claire Fontaine since 2004”. The works are neon sculptures in different colors, each rendering the expression "Foreigners Everywhere" in a growing number of languages. The expression was, in turn, appropriated from the name of a collective from Turin that, in the early 2000s, fought racism and xenophobia in Italy: Stranieri Ovunque. As Pedrosa stated, "The backdrop for the work is a world rife with multifarious crises concerning the movement and existence of people across countries, nations, territories, and borders. These crises reflect the perils and pitfalls of language, translation, and nationality, in turn highlighting differences and disparities conditioned by identity, nationality, race, gender, sexuality, freedom, and wealth. In this panorama, the expression "Foreigners Everywhere" has several meanings. First of all, it means that wherever you go and wherever you are, you will always encounter foreigners-they/we are everywhere. Second, it means that no matter where you find yourself, you are always truly, and deep down inside, a foreigner. “In Venice, foreigners are everywhere. Yet, one may also think of the expression as a motto, a slogan, a call to action, a cry of excitement, joy, or fear: Foreigners everywhere! More importantly, today, it assumes a critical signification in Europe, around the Mediterranean, and in the world, especially when the number of forcibly displaced people hit the highest in 2022, at 108.4 million, according to the United Nations High Commissioner for Refugees, and is expected to have grown even more in 2023.” What differentiates this Biennale Arte 2024 is Pedrosa's focus on artists who are themselves foreigners, immigrants, expatriates, diasporics, émigrés, exiled, or refugees-particularly those who have moved between the Global South and the Global North. Thus, he states, “Migration and decolonization are key themes here”. Pedrosa does not stop here, however, and uses “straniere,” another term in Italian for foreigners, to explore a second meaning, strange which then leads to queer. Pedrosa further explains and justifies that “According to the American Heritage and the Oxford English dictionaries, the first meaning of the word “queer” is “strange,” and thus the exhibition unfolds and focuses on the production of other related subjects: the queer artist, who has moved within different sexualities and genders, often being persecuted or outlawed. Queer artists appear throughout the Exhibition and are also the subject of a large section in the Corderie. The outsider artist, who is located at the margins of the art world, much like the self-taught artist, the folk artist, and the artista popular; and the Indigenous artist, who is frequently treated as a foreigner in their own land. The work of these four subjects is the focus of this Biennale Arte.” Something else is also going on in the Biennale that apparently is a sea change in perception of the art world. I talked to many artists who traveled for the first time, indigenous artists from the Amazon who proudly spoke of a different worldview and aesthetic of equal value to solve our current crisis if “the other” would hear the message. In the past, Biennales focused on indigenous issues and brought forth voices not often heard by filmmakers and other artists; however, this Biennale presents the art of the “foreigner" as "art.” Perhaps it is not surprising that the Biennale’s top prizes for the best artists participation in the curated exhibition went to the Mataaho Collective, which consists of four Māori women artists: Bridget Reweti, Erena Baker, Sarah Hudson, and Terri Te Tau. The Maori Mataaho Collective has created a luminous woven structure of straps that poetically crisscross the gallery space. Referring to matrilinear traditions of textiles with its womb-like cradle, the installation is both a cosmology and a shelter. Its impressive scale is a feat of engineering that was only made possible by the collective strength and creativity of the group. The dazzling pattern of shadows cast on the walls and floor harks back to ancestral techniques and gestures to future uses of such techniques. As a First Nation artist of Australia, Archie Moore won the Golden Lion prize for the best national pavilion for Kith and Kin. Although Moore is not the first First Nation artist to represent Australia, this is the first time Australia has won the Golden Lion. Moore created a genealogical chart with chalk on black walls tracing his British ancestors going back 65,000 years. In speaking of the work, Moore said, “Aboriginal kinship systems include all living things from the environment and a larger patchwork of relations. The land itself can be a mentor; we are all one and share a responsibility of care to all living things now and into the future”. While Moore’s thought represented and found expression in the world view of many of the Biennale artists, the judges seemed impressed by his technique of working in charcoal and the simple and elegant structure of the installation. In selecting this quietly powerful pavilion, Archie Moore worked for months to hand-draw a monumental First Nations family tree with chalk. Thus, 65,000 years of history (both recorded and lost) are inscribed on the dark walls, as well as on the ceiling, asking viewers to fill in blanks and take in the inherent fragility of this mournful archive. Floating in a moat of water are redacted official State records, reflecting Moore’s intense research as well as the high rates of incarceration of First Nations people. This installation stands out for its strong aesthetic, lyricism, and invocation of shared loss for occluded pasts. With his inventory of thousands of names, Moore also offers a glimmer of possibility for recuperation. The art press has been diverse in its response to this Biennale. I refer to one specific critic, who largely seems to have raced through the Arsenale and largely thought the medium was the message. I refer to Arsenal Review: ‘Foreigners Everywhere’ Treads Familiar Ground, Freize April 182024 by Cloe Stead, who describes the Arsenale as “A textile and painting-heavy edition of the Venice Biennale'' and further argues that the “Venice Biennale follows a tried and tested method of curation…” With ‘Foreigners Everywhere’ unquestionably the most diverse biennial to date, I remain hopeful that, two years from now, we’ll get an exhibition that includes all these nationalities under a theme that doesn’t reduce them to the languages they speak, and the places they were born or moved to. Other more reflective and observant critics collectively state that “there has never been a Biennale like this.” There is much to learn here, and there is no one-size-fits-all beyond the general themes stated above. For me, it is perhaps the first Biennale to be in tune not only with artists expressing the critical issues of their time, rather than the latest in marketable contemporary art aesthetics, but also deeply held values and world views that seek to use the lessons of the past, whether ancestors, a negative colonial experience or a religious world view and cosmology, to address a more positive future. There is pride, not pessimism, and a recognition, too, of the contradictions inherent in the criticism of the global capitalist north. At the same time, there is pride in joining the “white box,” as expressed most strongly by the occupiers of the Dutch Pavilion, the Congolese Artist Collective Cercle d’Art des Travailleurs de Plantation Congolese (CATPC). The sculptures exhibited are made of clay from the remaining growths of old forests and are recast in cocoa and palm oil in Amsterdam. The collective stated, “Each sculpture will mark the passage from a painful and dark past to an ecological tomorrow, a future in which the Sacred Forest will flow through the pavilion.” For the readers of One Art Nation, professionals in the art world, and collectors, the importance of the messages of this Biennale cannot be overlooked. Many artists, if not the majority, are exhibiting in Venice for the first time. The importance of the historic moment for the pavilions and the artist cannot be overstated. I was so moved to hear Jeffrey Gibson of the US express his emotions about being the first native American to represent the United States and the importance to his people and Native Americans to represent a country that by law had tried to eliminate them as a people and culture. Julian Creuzet, a French artist from Martinique, is also the first from a French former colony to represent France. Both Creuset and Gibson are established artists with successful careers. Creuset, who was commissioned for the Performa 2023 Biennale in New York, asks, “What does the center mean when you are French? What is the meaning of the French pavilion in Venice and national representation? How do you construe all of that when they call you an overseas citizen, someone aware of being a part of a much more complex French story?”. Creuzet decided immediately on leaning his selection to make openness, joy, hospitality, and dialogue a key element of the pavilion experience, characteristics of his life in Martinique (6) Creuzet. This Biennale informs not only about new artistic trends in art making but it links the art world to legal and global changes in the international area regarding traditional knowledge, climate change, migration, and other areas in which developments are largely unknown to the insular art world. For example, the UN’s goals for sustainable development reflect a new emphasis on culture as a fourth pillar of sustainable development. In a recent presentation I made on behalf of ICOMOS at a preparatory conference to the G2 Cultural minister meeting in Brazil, I stated that the following principles guide G20 policy: 1. Acknowledge the rights of Indigenous Peoples as established under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP 2007) 2. Affirm that Indigenous Peoples have rights over their traditional knowledge, traditional cultural expressions, genetic resources, and associated intellectual property rights. (Article 31 of the UN Declaration on the Rights of Indigenous Peoples). 3. Recognize and incorporate Indigenous heritage action in the face of widespread climate change, which includes working, where appropriate and feasible, with Indigenous communities to anticipate, assess, and help manage worsening and future climate impacts on their heritage 4. Embrace the principle of free, prior, and informed consent of Indigenous communities before adopting measures concerning their cultural heritage. (ICOMOS Buenos Aires Declaration 2018). 5. Acknowledge the rights of Indigenous Peoples to maintain, control, protect, and develop their cultural heritage and to define and implement the best methods to conserve heritage of significance to their culture. 6. Recognize that cultural and natural values are inseparably interwoven for Indigenous Peoples and should be managed and protected holistically. 7. Recognize Indigenous sovereignty and control over their land and knowledge when seeking to use Indigenous knowledge as part of effective climate responses and initiatives. 8. Promote the need for culturally appropriate Intellectual Property clauses when engaging with and sharing Indigenous Knowledge or TK. My Brazilian colleagues further urged that any declaration of the G20 to issue from this year’s conference in Brazil address the following; 1. Consider the deep interconnection between indigenous peoples’ tangible and intangible culture, in the ongoing digital planning and information processes to which these communities have been passively added. 2. Value the heritage of Afro-descendants and their knowledge, memories, and places as cultural heritage, including Quilombola communities, ensuring the rights of these peoples. 3. Valorization of forms of popular expression recognized as national heritage, such as music and dances (samba, choro, frevo, etc.) and gastronomy (artisan cheese, acarajé, etc.) operate consistently with the protection of traditional cultural expressions and expressions of folklore, respecting that for many traditional communities, their knowledge and cultural expressions form an indivisible part of their holistic identity. See the presentation by ICOMOS at the G20 Culture Working Group: Culture, Digital Environment, and Copyright. UNESCO adopted the World Heritage Convention in 1972, which links culture and nature. Organizations like ICAMOS have recently included principles of indigenous people’s rights and values in designating world heritage sites of importance to humanity. In 1970, the United Nations Education and Social and Cultural Organization (UNESCO) adopted the “Convention on the Means of Prohibiting and Preventing Illicit Activities”, which deals with the obligation of signatories to return illicitly obtained art and cultural heritage. The latter, the 1970 convention, deals with the obligations of signatories to return illicitly obtained objects and cultural heritage. The Dutch Pavilion, “The International Celebration of Blasphemy and the Sacred”, and Yinka Shonibare of the Nigerian Pavilion deal with this principle and the complexity involved in returning cultural heritage. Yinka Shonibare’s installation at the Nigerian Pavilion, as shown below, deals with the complexities of the return of cultural heritage work. This Biennale is an example that all our worlds have porous boundaries: Ideas and change migrate as do people, even in spite of physical boundaries, whether between nations, institutions, or areas of practice. Can the art world be a model for correcting social injustice, climate action, and fostering global peace for a sustainable future when political institutions are failing? Indeed, given the situation of the United States’ inability to engage in conversation, and given the situation at the level of academics in the United States, the Biennale represents the most positive steps forward in the art world’s ability to engage in positive dialogue and discussion. Stay tuned; In part two, I will discuss my favorite pavilions, Great Britain, Egypt, Nigeria, and artists with interviews and images from the Biennale. Of course, other collateral, museum events, and dining suggestions will complete the story. *Barbara T. Hoffman is a preeminent international art and cultural heritage lawyer with an undergraduate degree in art history. She has been a passionate follower of the contemporary art scene for years and a regular attendee at the Venice Biennale since the early 1980s. She has written frequently on law, art, and politics for a variety of publications and is a member of the International Association of Art Critics. She serves on the Board of Performa, the visual Performance Biennale, and represents numerous artists. She is a member of the legal committee of the International Council of Monuments and Sites and a trustee of the Tairona Heritage Trust. Paris Sistilli assisted Barbara in the production of this article.

The Art Lawyer’s Diary June 2023

2023-09-12T22:50:03Z

The Art Lawyer's Diary June 2023

The Hoffman Law Firm's The Art Lawyer's Diary by an art world insider is a guide to navigating the implications of current developments in art law as they relate to artists, collectors, galleries, and museums, as well as a forum for the discussion of the implications of current events at the intersection of art, law politics, and culture for the art world and beyond.

U.S. Supreme Court Restores Balance to Fair Use Doctrine by Rejecting the Appeal of the Andy Warhol Foundation in Warhol v. Goldsmith

It should not be a surprise to my readers that I breathed a sigh of relief on May 18, 2023, upon learning that the Supreme Court had issued its anxiously awaited decision in the landmark case of The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, ruling against the Warhol Foundation's (AWF) claim of the right to license Goldsmith's copyrighted portrait of the musician Prince without her permission, on the theory of fair use. The Copyright Act of 1976 provides that the fair use of a copyrighted work is not an infringement of copyright if it is used for purposes including criticism, comment, news reporting, teaching, scholarship, or research. The Supreme Court's affirmation of the Second Circuit's decision is a welcome correction to the importation of the "famous artist exception" argued by the AWF; that is, that appropriation artists get a free pass to use copyrighted material as facts of popular culture without commenting on the original work and without paying the customary price. To state it another way, the Court rejects the bright line rule argued by the AWF and its supporters (i.e., Amicus Curiae of Art Law Professors) that the fair use doctrine does not comport with the First Amendment if it does not permit the public to use facts, ideas, and expression itself, if it creates a new meaning and message as Warhol clearly did. One Art Nation, for whom I write regularly, requested my commentary on the Supreme Court decision. The Art Lawyer's Diary: Lots of Smoke and No Fire as Goldsmith Prevails Against Warhol Foundation in the Supreme Court provides an in-depth analysis and historic context for the decision. This commentary adds a more personal note based on my involvement and success in litigating fair use cases on behalf of photojournalists and visual artists whose works have been used without permission on a theory of fair use.

The doctrine of fair use permits and requires courts to avoid rigid application of the copyright statute, when, on occasion, it would stifle the very creativity that the law is designed to foster. In determining whether a particular use is protected under the doctrine, courts are to apply an "equitable rule of reason" analysis, guided by these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Although a court must weigh all the factors, the first -- in particular, a use's "transformativeness" -- is most important, and "has a significant impact on the remainder of the analysis." "The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use,” reads the 1994 Supreme Court opinion in Campbell v. Acuff-Rose Music, Inc., the first to import the concept from a law review article by Pierre Leval published in 1990. In a seven-to-two decision authored by Justice Sotomayor, the Supreme Court opined for the first time in 29 years on the fair use defense with respect to artistic expression, specifically to reaffirm and elaborate its prior precedent based on Campbell. The decision was a narrow one, to the extent that it did not even determine whether AWF infringed the copyright of Goldsmith's work. The Court limited its decision to whether Warhol's specific use of Goldsmith's photograph was "transformative." The Court rejected what I and others have called "the famous artist entitlement to piracy," to reaffirm and further clarify Campbell. The Court reasoned that:

"Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s photograph of Prince, and AWF’s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose. AWF has offered no other persuasive justification for its unauthorized use of the photograph."

Not since the Second Circuit decision in Rogers v. Koons (1992)— a case involving Jeff Koons’s appropriation of photographer Art Rogers’s work in the sculpture “String of Puppies” — has the art world has been so roiled by a copyright fair use case. In rejecting Koons’s defense based on his right to use photographs by characterizing the images as “facts,” — which are free from copyright protection — to comment on society, the Court stated:

"It is the rule in the Second Circuit that though the satire need not be only of the copied work and may also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work […] Copies made for commercial or profit-making purposes are presumptively unfair. The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price."

I litigated for the artist Faith Ringgold in the case of Ringgold v. Black Entertainment Television (BET) in 1997. Faith’s husband Bertie had seen an episode of the TV sitcom Roc. In the last five minutes of the episode, a poster licensed by Ringgold for production by the High Museum of Art in Atlanta, which owned the original “Church Picnic Story Quilt” (1988), appeared on a church wall as set dressing. However, the poster’s copyright text is too small for a television viewer to discern. Ringgold alleged that a poster of her work was used in the set’s decoration without copyright permission by Home Box Office (HBO) and BET. I cautioned that a series of district court precedents had failed to accord proper protection to the use of art in film and, notwithstanding the commercial aspects of the use, that the use did not satisfy the aforementioned factor one of criticism or scholarship. The lower courts had failed to protect visual arts with the same vigilance as music in films, primarily because visual artists

don't have bodies like the American Society of Composers, Authors and Publishers (ASCAP) or Broadcast Music, Inc. (BMI) to defend artists' rights, particularly the financial means to appeal a clearly wrong district court decision. Predictably, we lost in the district court. The district court stated, "[t]he Poster was used as a small part of the set to help portray an African-American church, and the brief nature of the defendant's use of the Poster bolsters the conclusion that its presence was incidental to the scene," and that this use did not compete with Ringgold's sale of the poster. The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain, but whether the user stands to profit from exploitation of copyrighted material without paying the customary price, with no analysis of the licensing revenue garnered by Ringgold from derivative works. We appealed. The Second Circuit denied BET’s claim that its use of the poster wasde minimis ( too “trivial” ) for fair use, notwithstanding that the aggregate time in which the poster appeared in the show was about 27 seconds. To this argument, the Court responded that BET’s argument that all it used was the idea of black folks dancing, is to say that we only took the smile of the Mona Lisa. As is relevant here, the Second Circuit, following Campbell, considered the first fair use factor with the preamble illustrations as a "guide … we observe that the defendants' use of Ringgold's work to decorate the set for their television episode is not remotely similar to any of the listed categories. In no sense is the defendants' use ‘transformative’ …” and further “…In the absence of defenses, (i.e. fair use) these exclusive rights ( including the right to license derivative works) normally give a copyright owner the right to seek royalties from others who wish to use the copyrighted work. BET used Ringgold's work for precisely the purpose for which it was created — for decoration. Indeed, the poster is the only decorative artwork visible in the church hall scene. Nothing that BET has with the poster "supplant[s]" the original or "adds something new."

By 2009, however, the concept of transformative use had muddied the waters. The preamble purposes and whether the work was for commercial purposes and the burden placed on the second user had almost disappeared, swallowed up by a transformative use analysis that threatened, in particular, the copyrights of photographers and their right to license derivative works. The watershed which lead to the district court’s analysis in Warhol was anticipated by the flawed analysis in Cariou v. Prince (2013). In 2009, artist Richard Prince was sued by French photographer Patrick Cariou for copyright infringement after his “Canal Zone” paintings incorporated photographs from Cariou’s 2000 book Yes, Rasta. In March 2011, a US district judge ruled — in my view, correctly — against Prince on the basis of Campbell and ordered the defendant to destroy any unsold paintings that borrowed imagery from Cariou. That ruling was largely overturned on appeal a year later, apart from five paintings that were ordered to be reevaluated for claims of fair use. Museums lined up with Prince to argue an apocalyptic vision of artistic creation if Prince could not use Cariou’s work. Professor Amy Adler was paid by Prince’s team and was the source of a new standard embodying the “famous artist exception,” justified as an incentive for creating new work by famous artists with no mention of paying the customary price.

The Second Circuit held that the district court imposed an incorrect legal standard when it concluded that, in order to qualify for a fair use defense, the artist’s work had to comment on the photographer, the photographs, or on aspects of popular culture closely associated with the photographer or the photographs. The Court ruled that 25 of the artworks made fair use of the copyrighted photographs because the artworks presented a new expression, meaning, or message. The artworks were "transformative" because they manifested an entirely different aesthetic from the photographs since the artist’s composition, presentation, scale, color palette, and media were fundamentally different and new compared to the photographs, as was the expressive nature of the artist’s work. Rather astonishingly, the Second Circuit opinion arguably rests in part on the flawed reasoning of the district court in Ringgold, that Richard Prince’s work is not a market substitute for and therefore does not “supersede” the demand for the original. That rationale, which is also echoed in Justice Kagan’s dissent in Warhol, with respect to transformative use is now, practically speaking, in the dustbin, a low point rather than high water mark in the analysis of fair use. The decision and the process leading to Sotomayor’s opinion are remarkable in many ways. As a constitutional law professor, I always relished reading Supreme Court opinions, but the fascinating repartee between Kagan and Sotomayor isat a level that is unusual in its tone and passion. It is well worth a read even for a nonlegal scholar and aids in providing an understanding of the majority opinion, which easily refutes the doom and gloom predictions of both Justice Kagan and the numerous briefs in support of the Warhol Foundation which undergird Justice Kagan’s analysis. That the Supreme Court failed to give a blanket copyright pass to all appropriation art and artists who create it, does not mean the end of the First Amendment, and incorrect weighting of copyright law to protect and incentivize at the expense of progress in the arts.

So, what is the impact of the decision? I'll sum it up in five points: (1) Fair use is a case-by-case analysis. While the Court specifically declines to adopt a bright line rule giving a copyright pass for all appropriation art based on a new message or aesthetic, the Court specifically acknowledges Warhol’s Soup Cans and other works which comment on advertising logos and labels in principle meet the test of fair use. Artists may still claim fair use for the use of logos to comment on consumerism and other aspects of popular culture or other purposes. (2) Justice Sotomayor's opinion does not ignore the relevance of the second work's meaning or expressive value, but the message must comment on the use of the original copyrighted work. Warhol could have done his own portrait of Prince, or paid the customary price; but to use a work, the secondary use must comment on it. Confirming the Second Circuit, the majority opines that judges should not attempt to evaluate the artistic significance of a particular work. Nor does the subjective intent of the user (or the subjective interpretation of a court) determine the purpose of the use. But the meaning of a secondary work, as reasonably can be perceived, should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original; for instance, because the user comments on, criticizes, or provides otherwise unavailable information about the original. Warhol's recognized influence on modern art and on artists working today will not be chilled by this decision, nor is the First Amendment threatened by the failure of judges to act as art critics to impute new meaning and message to artworks which simply reproduce an existing work for the same purpose as the original. (3) "Worried about the fate of artists seeking to portray reclining nudes or papal authorities, or authors hoping to build on classic literary themes? Worry not," the majority opinion reassures us, since comment and criticism on the original iconic work is clear. (4) The Court does not specifically analyze the other fair use factors and thus makes no finding as to copyright infringement of the other 16 silk screen works, and specifically rejects the hyperbole of the museum community: the Warhol silk screens and portraits can continue to be exhibited in museums. (5) Given the number of copyright lawyers who opined on behalf of stakeholders on both sides, we can expect, notwithstanding the elegance, simplicity, and clarity of the decision and its consistency with a long line of Supreme Court precedent on fair use, that litigation on fair use will be a legal staple. Several months after the Second Circuit decision, the Supreme Court decided Google v Oracle, technically the first fair use opinion in 25 years; generating a request by the Warhol camp and anti-copyright silicon valley intellectual property scholars and software advocates to invoke the finding that Google’s exact copying of Oracles’s java script transformative and fair use. Neither the Second Circuit nor the Supreme Court found that Google analysis of factor one was inconsistent with its decision that AWF’s license of Goldsmith’s photograph with minor changes for the same purpose was not transformative.” The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world. That said, stay tuned for how artificial intelligence will play out in the future of copyright. For example, is the act of feeding exact copies of copyrighted artwork to AI software (in order to train it to produce its own artwork later) "transformative" under the first factor?

I understand that rather than being treated as a hero as she should be for defending the rights of artists, Goldsmith has been attacked based on the unwarranted doom and gloom of the dissent. It is difficult to see how this litigation had required 59 friends of the Court brief, about half on each side. This fact no doubt provided added support to the Kagan dissent, which is not based on precedent, but on the art world power structure. In fact, most, if not all, of Justice Kagan's arguments are refuted. I particularly like Sotomayor's response to Kagan about the dire effect on creativity of the majority ruling:

"If AWF must pay Goldsmith to use her creation,” the dissent claims, this will “stifle creativity of every sort,” “thwart the expression of new ideas and the attainment of new knowledge,” and “make our world poorer.” These claims will not age well. It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers."

Remember: fair use is a case-by-case analysis. If the original work that was taken is recognized, and used by the second user for the same purpose as the original without any specific comment on the first work, the use is probably not transformative under factor one. Stay tuned for further copyright developments following the decision.

The Art Lawyer’s Diary May 2023

2023-09-13T15:29:41Z

Lots of Smoke and No Fire as Goldsmith Wins Victory in the Supreme Court

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al. No. 21-869. The Art Lawyer’s Diary May 23, 2023 Barbara T. Hoffman, Esq.* This Art Lawyer’s Diary refocuses on an area of expertise and passion: the subject of artists and copyright, particularly the doctrine of fair use which is an affirmative defense to an artist’s copying another artist’s work without permission. In the September 2020 Art Lawyer’s Diary, I wrote on Warhol v. Goldsmith as the appeal of the clearly depressing district court decision was in process; the relevant excerpt follows and is useful source material for this issue which focuses on the takeaways from the Supreme Court decision. The appellate court reversed the district court’s finding that Warhol’s use of Goldsmith’s photograph was fair use. The Andy Warhol Foundation appealed the decision of the Second Circuit that Warhol’s use of the photograph of the singer Prince as basis for series of artwork was not protected as fair use under Copyright Act, 17 U.S.C.S. § 107, because fair use factors weighed strongly in favor of Goldsmith; Warhol’s series was not transformative because it retained essential elements of photograph without significantly adding to or altering those elements, notwithstanding a different message created by the style of appropriation and that “it’s a Warhol.” The Decision In a 7-2 opinion written by Justice Sonia Sotomayor, the Supreme Court affirmed the Second Circuit Appellate Court’s decision; however, the Court considered only one question. The question—as paraphrased by me—was whether stating “it’s a Warhol” is enough to conclude that factor one favors the appropriation artist on these facts. The question, as framed by the Court, was whether the Warhol Foundation established that its licensing of Orange Prince was a “transformative” use, and that §107(1) therefore weighs in their favor, simply by showing that the image can reasonably be perceived to convey a meaning or message different from that of Goldsmith’s original photograph of Prince. Justice Sotomayor opined that The first fair use factor focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, while there may have been a different aesthetic, the Warhol Foundation’s use of Goldsmith’s previously unpublished image of Prince in a Warhol silkscreen print for licensing to Condé Nast was for the same purpose as Goldsmith’s image and competed with her licensing of that image… The opinion is well worth a read for both lawyers and non-lawyers. While shedding light on a doctrine that had become increasingly murky and unpredictable over the years, largely based on the continuing expansion of the “transformative” concept as an analytical tool to determine “purpose and character” under factor one, the arguments on the merits in the opinion between the majority and dissent are remarkable on many levels. In some ways, they reflect that 59 amicus curiae briefs were submitted to the Court, almost equally divided in passion and law, between supporters of the Warhol Foundation and Goldsmith. As discussed below, the doom and gloom and apocalyptic vision predicted by the dissent and the Warhol Foundation find no support in this decision. The Supreme Court’s last fair use decision was Campbell v. Acuff-Rose, involving a parody by 2 Live Crew of “Pretty Woman” by Roy Orbison. The Court’s analysis made clear that the work not only had a new meaning and aesthetic, but was a parody. This requirement that a secondary use comment on the original work had long been a requirement of the fair use doctrine in the Second Circuit until it was jettisoned by the Second Circuit’s decision in Cariou v. Prince (2013) and fair use became a “famous artist” defense with nothing more needed. Key Takeaways

The Supreme Court held that original works like Goldsmith’s photograph of Prince are entitled to copyright protection, even against famous artists. Such protection included the original author’s right to prepare derivative works that transformed the original. Goldsmith’s original photograph of famous musician Prince, and Warhol’s copying use of that photograph in “an image licensed for the same purpose that Goldsmith licensed the image,” violated that right reserved for Goldsmith. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. More generally, when commentary has no critical bearing on the substance or style of the original composition, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. This conclusion, I would argue, has been the law both prior to and after Campbell in the Second Circuit and others, until Cariou v. Prince. Ringgold v. BET is still good law. BET used Ringgold’s artwork for set dressing and for the same purpose Ringgold would have licensed her work. BET’s use was commercial, and it cut into Ringgold’s right to create and sell posters, and other derivative works. Faith Ringgold, Church Picnic Story Quilt (1988). Hoffman in front of Church Picnic.
Patrick Cariou wins over Richard Prince under the first factor of fair use. The Supreme Court’s Warhol opinion states that the Second Circuit correctly rejected the idea that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative. It also appeared to accept—correctly—that the meaning or message is relevant to, but not dispositive of, purpose. Patrick Cariou, Yes Rasta (2000). Richard Prince, Canal Zone (2008).
The commercial purpose of the Warhol Foundation’s recent licensing of Orange Prince to Condé Nast was in direct competition with Goldsmith’s licensing. The fact that Condé Nast may not have chosen to license the Goldsmith over Orange Prince is not relevant to the Court. That reasoning, however, does not comment on Warhol’s other uses of the photograph embedded in his silkscreens, such as for display in a museum. In other words, the secondary work’s specific use of an unauthorized derivative work is what is relevant to the analysis.
Using a Campbell Soup can logo, or another commodity logo, may still be fair use by artists. The Court clearly distinguished this use from the use of Goldsmith’s portrait, which, when incorporated as a reference by Warhol, was an unpublished photograph. The Court stated: The Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup. The use therefore does not supersede the objects of the advertising logo. Moreover, a further justification for Warhol’s use of Campbell’s logo is apparent. His Soup Cans series targets the logo. That is, the original copyrighted work is, at least in part, the object of Warhol’s commentary. It is the very nature of Campbell’s copyrighted logo—well known to the public, designed to be reproduced, and a symbol of an everyday item for mass consumption—that enables the commentary. Hence, the use of the copyrighted work not only serves a completely different purpose, to comment on consumerism rather than to advertise soup, it also “conjures up” the original work to “she[d] light” on the work itself, not just the subject of the work. Andy Warhol, Campbell’s Soup I (Black Bean) (1968).
Koons’s appropriations pass for fair use as long as there is parody. Both Rogers v. Koons and Blanch v. Koons remain good law. Notwithstanding the Warhol Foundation’s claims that affirmance of the lower court’s judgment would upset existing expectations concerning the proper analysis of infringement claims targeting visual art, the Court’s opinion makes it clear that this is not the case. First, courts have long recognized the fact-specific character of fair use analysis, and they have not always upheld fair use arguments advanced by34 famous appropriation artists. Compare, e.g., Rogers v. Koons, 960 F.2d 301, 304 (2d. Cir.), cert. denied, 506 U.S. 934 (1992), with Blanch v. Koons, 467 F.3d 244, 251 (2d. Cir. 2006). Claims of fair use in the visual arts are governed by the same Copyright Act provision that applies to other modes of expression. 17 U.S.C. § 107. While the Warhol Foundation’s arguments developed in Cariou, and embodied for the first time in the Second Circuit decision, had that effect, the Supreme Court’s decision repudiates any such “bright line approach” to fair use, thereby leaving open many possibilities for artists who appropriate; including paying the appropriate license fee, commenting on the original in some way, or creating their own copy of an artifact for comment. Koons prevails, as would other artists, when the use would not be licensed for the same purpose, and the original is integrated for commentary on consumerism specifically, not necessarily for societal satire. The Court’s rejection of the Second Circuit’s factor one analysis in Cariou goes an enormous distance in clearing up the confusion attributed to the ever-expanding doctrine of transformative use.
The First Amendment is alive and well. Notwithstanding the doom and gloom of the dissent, artists are free to pay homage to iconic works of art history, and copyright law creates a breathing space to achieve the balance between encouraging artistic creativity while protecting the individual artist from unlawful appropriation. Limitations on copyright, such as the non-copyrightability of facts and ideas, still serve the intended purpose; and if not, as the concurring opinion states, that issue is one for Congress to address. Titian, Venus of Urbino (1480/85 – 1576). Manet, Olympia (1863). Diego Velázquez, Innocent Pope X (c. 1650). Francis Bacon, Study after Velázquez’s Portrait of Pope Innocent X (1953).

From the September 2020 Archive: FAIR OR FOUL: PROTECTING CELEBRITY ARTISTS AT THE EXPENSE OF A CREATOR’S RIGHTS. ANDY WARHOL FOUNDATION v GOLDSMITH (2^nd Cir. 19-2420) Francis Bacon, Study after Velázquez’s Portrait of Pope Innocent X (1953). Oral argument in the Second Circuit Court of Appeals in the Andy Warhol Foundation v. Goldsmith took place on September 15, 2020. In the lower court (The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al.) Judge Koeltl of the SDNY, incorrectly in my opinion, decided on a motion for summary judgment (there were no disputes as to the facts), that Andy Warhol’s silk screen images of Prince which copied noted portrait photographer Lynn Goldsmith’s image of Prince, did not constitute copyright infringement. On July 1, 2019, Judge Koeltl ruled that when Andy Warhol copied an unpublished photographic portrait of the late singer Prince, (allegedly provided to him by Vanity Fair as a resource), and created 16 different variations of the unpublished photo, that these were “fair use” and not copyright infringement. Plaintiff, Andy Warhol Foundation for the Visual Arts, immediately praised the decision saying “Warhol is one of the most important artists of the 20th century, and we’re pleased that the court recognized his invaluable contribution to the arts and upheld these works.” "Fair use" is a statutory affirmative defense to copyright infringement. 17 U.S.C. § 107. "The four factors identified by Congress as especially relevant in determining whether the use was fair are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work." The critical question in determining fair use is whether copyright law's goal of "promot[ing] the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” To make that determination, the Supreme Court has articulated in the case of Campbell v. Acuff Rose that one work transforms another when "the new work . . . adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Although transformation is a key factor in fair use analysis under the first factor, whether a work is transformative is often a highly contentious topic, more often applied when it appears to justify a conclusion rather than operating as a bright line rule of law. Of course, an artist’s celebrity status is not a factor to be considered under the weighing of the fair use factors under Section 107; for that misunderstanding, one needs to look at the sharply criticized and debated 2013 decision of the Second Circuit in Cariou v. Prince, its most recent articulation of the muddled and murky fair use doctrine. Cariou published Yes Rasta, a book of portraits and landscape photographs taken in Jamaica. Defendant celebrity appropriation artist Richard Prince who altered and incorporated several of plaintiff’s photographs into a series of paintings and collages called Canal Zone that was exhibited at a gallery and in the gallery’s exhibition catalog. The issue was whether defendant’s appropriation artwork, which incorporated the plaintiff’s original photographs, must comment on, relate to the historical context of, or critically refer back to the plaintiff’s original work in order to qualify for a fair use defense. The Second Circuit found Prince’s uses to be fair, and that a secondary use does not need to comment on or critique the original in order to be transformative as long as it produces a new message. While Cariou’s book of 9 ½” x 12” black-and-white photographs depicted the serene natural beauty of Rastafarians and their environment, Prince’s work featured enormous collages on canvas that incorporated color and distorted human forms to create a radically different aesthetic. The Second Circuit found Prince’s work to be a transformative fair use of Cariou’s photographs. Whether or not art is transformative depends on how it may “reasonably be perceived, and not on the artist’s intentions.” As a District Court Judge, Koeltl was bound to follow Cariou: in sum, the Prince Series works are transformative. They "have a different character, give [Goldsmith's] photograph a new expression, and employ new aesthetics with creative and communicative results distinct from [Goldsmith's]." See Cariou, 714 F.3d at 708. They add something new to the world of art and the public would be deprived of this contribution if the works could not be distributed. The first fair use factor accordingly weighs strongly in AWF's favor. In finding Warhol’s use transformative, the circuit court denies protection to those elements of a photographic portrait that are protected by copyright law, as if the fair use defense to copyright infringement and the concept of celebrity transformative use literally erases “substantial similarity” and fails to appreciate how extensively Warhol’s silkscreen is derivative of – and a misappropriation of—protected expression from Lynn Goldsmith’s photographic portrait of Prince. It is difficult to reconcile the district court’s lack of solicitude for such camera-related choices in Goldsmith’s portrait of Prince with the Second Circuit’s 1992 decision in Rogers v. Koons, finding that “protectible elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.” Art Rogers, Puppies (1985). Jeff Koons, String of Puppies (1988). In October 1984, Vanity Fair licensed one of Goldsmith's black-and-white studio portraits of Prince from her December 3, 1981 shoot (the "Goldsmith Prince Photograph") for $400. The article stated that it featured "a special portrait for Vanity Fair by ANDY WARHOL." The article contained a copyright attribution credit for the portrait as follows: "source photograph © 1984 by Lynn Goldsmith/LGI." Based on the Goldsmith Prince Photograph, Warhol created the "Prince Series," comprised of sixteen distinct works — including the one used in Vanity Fair magazine — depicting Prince's head and a small portion of his neckline. Prince died on April 21, 2016. The next day, Vanity Fair published an online copy of its November 1984 "Purple Fame" article, which had credited Warhol and Goldsmith for the Prince illustration in the article. Condé Nast then decided to issue a commemorative magazine titled "The Genius of Prince" and obtained a commercial license to use one of Warhol's Prince Series works as the magazine's cover. The magazine contained a copyright credit to Warhol but not to Goldsmith. Condé Nast published the magazine in May 2016. -------- * Barbara T. Hoffman is an art world insider, and a preeminent art and copyright lawyer with decades of experience. She has served as Chair of the City Bar Association Committee on Art Law, and on the IBA Committee on Art Cultural Institutions and Heritage Law. She has been selected to Super Lawyers and Best Lawyers in Copyright and Art Law since 2010, founded the WVLA and litigated the precedent-setting Ringgold v. BET and AFP v. Morel. The Art Lawyer’s Diary is Hoffman’s guide to navigating the implications of current developments in art law as they relate to artists, collectors, galleries, and museums, as well as a forum for the discussion of the implications of current events at the intersection of art, law, politics, and culture for the art world and beyond. www.hoffmanlawfirm.org.

The Art Lawyer’s Diary – Sharjah Biennial 15 – March 2023

2023-05-16T05:41:55Z

Pleased to announce my latest Art Lawyer's Diary is available on One Art Nation focused on the intellectual feat that is the Sharjah Biennial 15: Thinking Historically in the Present.

The Art Lawyer's Diary: Sharjah Art Foundation Brings Together Over 150 Artists and Collectives for Sharjah Biennial 15

Click HERE To Read The Full Article Sharjah is the United Arab Emirates’ third largest emirate with coastline on both the Arabian Gulf and Gulf of Oman and known appropriately as the cultural and intellectual center of the UAE. I had never been to the Sharjah Biennial; however, I was drawn by press that Okwui Enwezor, the much beloved and respected curator whose 1997 Johannesburg Biennial and Documenta 11 posed a fundamental restructuring of the paradigm of the biennale, had conceived this as his last biennial prior to his premature death. Sheika Hoor bint Sultan Al Qasimi, President of the Sharjah Art Foundation and curator of the Sharjah Biennial since 2009, in her curatorial statement acknowledges the critical guidance of Enwezor: “First, he dislocated the biennial from its comfortable seat of origin, expanding the site.” Thus, Hoor Al Qasimi moves beyond nationality centered pavilions. The Sharjah Biennial in its curatorial direction expands beyond the historical core into landscapes and communities that make up the Emirate of Sharjah, such as the Kalba Ice Factory, Kalba Kindergarten, the Khalid Bin Mohammed School (The Africa Institute), the Old Al Dhaid Clinic, the Khorfakkan Art Centre (the old Court House), the Al Hamriyah Studios and the Old Al Jubail Vegetable Market. Also premiering in SB15 are works that engage with the local context of Sharjah. Kerry James Marshall proposes an outdoor installation in the form of an archaeological find inspired by fact, myth and tales, while Kambui Olujimi, Mirna Bamieh and Veronica Ryan present site-specific projects that converse with and recontextualize the old and new architecture of the Foundation.

The Art Lawyer’s Diary March 2023

2023-08-31T16:50:14Z

Sharjah Art Foundation Brings Together Over 150 Artists and Collectives for Sharjah Biennial 15: Thinking Historically in the Present (February 7-June 11, 2023)

The Art Lawyer’s Diary February 15, 2023 Barbara T. Hoffman, Esq.* Sharjah is the United Arab Emirates’ third largest emirate with coastline on both the Arabian Gulf and Gulf of Oman and known appropriately as the cultural and intellectual center of the UAE. I had never been to the Sharjah Biennial; however, I was drawn by press that Okwui Enwezor, the much beloved and respected curator whose 1997 Johannesburg Biennial and Documenta 11 posed a fundamental restructuring of the paradigm of the biennale, had conceived this as his last biennial prior to his premature death. Hoor Al Qasimi, President of the Sharjah Art Foundation and curator of the Sharjah Biennial since 2009, in her curatorial statement acknowledges the critical guidance of Enwezor: “First, he dislocated the biennial from its comfortable seat of origin, expanding the site.” Thus, Hoor Al Qasimi moves beyond nationality centered pavilions. The Sharjah Biennial in its curatorial direction expands beyond the historical core into landscapes and communities that make up the Emirate of Sharjah, such as the Kalba Ice Factory, Kalba Kindergarten, the Khalid Bin Mohammed School (The Africa Institute), the Old Al Dhaid Clinic, the Khorfakkan Art Centre (the old Court House), the Al Hamriyah Studios and the Old Al Jubail Vegetable Market. Also premiering in SB15 are works that engage with the local context of Sharjah. Kerry James Marshall proposes an outdoor installation in the form of an archaeological find inspired by fact, myth and tales, while Kambui Olujimi, Mirna Bamieh and Veronica Ryan present site-specific projects that converse with and recontextualize the old and new architecture of the Foundation. Map of Sharjah Biennial 15. Mirna Bamieh, Sour Things (2023) on view at the Old Al Jubail Vegetable Market. Ibrahim Mahama, Parliament of Ghosts (2023) at the Old Al Dhaid Clinic. Veronica Ryan, Systems and Microbes (2022) at Al Hamriyah Studios. The 2022 Turner Prize Winner, Veronica Ryan, uses hanging assemblages made of date nets, bottle tops, plastic refuse, and other materials sourced in Sharjah. Kerry James Marshall, Untitled: Excavation (2022) at the Old Al Diwan Al Amiri. Kambui Olujimi with his work, In the Dark, We Lose Our Edges (2023) at the Flying Saucer. Secondly, “Enwezor decentered the discursive myths of the European art canonical avant-garde, critiquing the conservatism and social detachment of its vision of modernity….” Sharjah Biennial 15 is a “transnational nexus of global civic enunciation.” Artist identifiers do not refer to the artist’s nationality except indirectly to provide context for artistic practice in the Guidebook (an essential reference tool for visitors to maximize the viewing experience). Carrie Mae Weems presents The In Between (2022-2023) that pays homage to Enwezor, a multimedia installation composed of elements to foreground the in between, a point of departure neither here or there where Enwezor sought to make cultural institutions and art canonical histories more inclusive and representative of non- western identities. Carrie Mae Weems, The In Between (2022-2023) at Calligraphy Square. Thinking Historically in the Present: The Notion and Meaning of Time The phrase that is the guiding principle of the biennial — “thinking historically in the present” — was introduced by Enwezor in 2005. Al Qasimi states “he invoked the dislocation of belonging” and the “disjunction of time as the shared affective core felt across the post-colonial world. How, he asked us to imagine, do you live these disjunctions and experience these disjunctions and experience these dislocations from the inside?” This principle provides an amazing source for archival research, inspiration and creativity for the selected artists. The impact of colonial histories, global politics, immigration, incarceration, traditional narrative structures, folklore and communal practices, enable the artists through film, multimedia, painting, sculpture and performance to invite viewers to reconfigure ways to view non-canonical wisdom or understand contemporary problems like power, food trade, and climate change as caused by other than as explained by the power structure: to create narratives to interweave current political problems and turmoil with a rich historical past mythical and forgotten histories to enable both artist and viewer to search for identity and new ways of resistance, reconciliation and politics. Not surprisingly, the theme causes us and the participating artists to reflect on ancient epistemologies and time as a philosophical, historical and existential concept. Contradicting the tendency of Eurocentric historiographies of the Gulf to frame oil expeditions as the beginning of the emirate history, Al Qasimi begins her statement by referencing that “tales and allegories of Sharjah and the Gulf were historically mediated by soothsayers whose intuition served as a conduit to transmit messages from other worlds… These stories were vessels for the accretion of ancestral wisdom relayed orally from one generation and reference to Sharjah and its beginnings dating from archeological finds to 10,000 years ago… In Sharjah’s curatorial and historic models for the Sharjah Biennial 15 there is guidance with the chronotype of ‘deep time’ and the Kharareef of our ancestors.” Wangechi Mutu presents a new sculptural installation titled My Mother’s Memories, a Mound of Buried Brides (2023), a visual poem which reflects on the resilience of the women who fought for the independence of Kenya in the Mau Mau rebellion. Wangechi Mutu, My Mother’s Memories, a Mound of Buried Ashes (2023) at Bait Al Serkal. Time as history is seen in the installations and documentation of many photographers and film makers who were either direct participants in the struggles like Omar Badsha, political activist and trade union leader, who is known as one of the pioneers of anti-colonial resistance art from South Africa, and his work Once We were Warriors: Women and the Resistance in the South African Liberation Struggle (1982-1999); or witness to such struggles like Hiroji Kubuta, Magnum photographer, who documents with the rare vision of an outsider from Japan the end of segregation, the rise of the black panther Party and black power and the antiwar movements. Manthia Diawara’s capacious scholarly and creative process has made a major contribution to the field of Black and African diasporic cultural studies. He presents Angela Davis: A World of Greater Freedom (2023). Together he and Davis unpack the principle cores of Davis’s philosophy: “to deconstruct and contextualize contemporary meanings of life and ecology… to narrate new, multiple and unpredictable social realities.” Sir Isaac Julien’s practice often examines the politics of masculinity, class and race to deconstruct and reclaim black histories. Julien presents Once Again … (Statutes Never Die) (2022), taking its title from the 1954 film of Chris marker and Alan Renais Statutes Also Die (1954) on historical African art and its decline under colonialism. Originally commissioned for the 100^th anniversary of the Barnes foundation, the five-channel black-and-white video installation explores the legacies of the philosopher, critic and queer cultural leader Alan Locke and African art collector Albert Barnes, whose collection inspired both Locke and the Harlem Renaissance artists. While not immediately obvious unless one spends the time with this mesmerizing five-channel installation and accompanying sculptures, Julien not only reimagines Locke’s relationship and correspondence with Barnes, but also contextualizes contemporary efforts for reparations, gesturing at the critical dialogue which can inspire such claims. Al Qasimi’s goal to build a platform that links Sharjah as a center for knowledge production to the intersectional discourses of the postcolonial constellation, while remaining grounded in collaborative methodologies and civic engagement, is advanced by presenting us such discourse and conversation as presented by Julien, given the clear focus on homosexuality and its acceptance, given the fact that Sharjah is one of the more conservative of the Emirates where prayer is regular, women are veiled and alcoholic consumption is forbidden. Isaac Julien, Once Again … (Statues Never Die) (2022) at Calligraphy Square. Coco Fusco, an interdisciplinary artist and writer, engages with themes of power, race and the sociopolitical ramifications of her Cuban exile. She has also studied an era of Cuba’s history, characterized by the persecution of those deemed “ ideologically divergent..” The term, introduced by Raul Castro in the 1970’s, extended to all whose personal and political identities permitted them from submitting the revolutionary, effectively criminalizing dissent.” The Eternal Night (La Noche Eternal) (2022) is a poetic feature length black and white film which reactivates and reimagines the political conflicts precipitated by the modern nation-building process in Cuba is based on the life of writer and former political prisoner Nestor Diaz de Villegas. Researched for over two years and based on archival footage mixed with live performances, the film follows the lives of a poet, a young Evangelical man and a seasoned stage actor charged with an assassination attempt on Castro. Guided by the actor, the three endeavor to survive incarceration with wit, strength of will and shared love of cinema.” Poetry, art, theater, and connection to the narratives of a time remembered of the richness of Haitian cultural and intellectual production, spiritual practice as a means of survival and resistance in a world of chaos and irrationality caused by the natural and political tragedy of Haiti is the message of the ensemble The Living and the Dead. Composed of ten artists, performer, and poets, from Haiti, France and the United Kingdom. The Wake (2021) an immersive and powerful three channel video that revolves around the charged atmosphere of a night filled with demonstrations, earthquakes and the fire of struggle and pain, rebirth and chaos. “ Amid these flames, a community dreams of flight, travel, and alliances among diasporas, invoking the restlessness that haunt our electronic realms. “We as viewers, share the pain and trauma immered in the hope that the goal to create a narrative based on the weaving of the insane present with the mythical, colorful and often forgotten histories of the past can lead to rebirth. Image follows Time as memory and lived history, including its impact on those who have suffered systematic abuse and institutional complicity fuels the performances and photographic art work of Vivan Sundaram, a leading artist of New Delhi’s intellectual and artistic community for six decades. Sundaram’s photography-based project, Six Stations of a Life Pursued (2022), signifies “a journey with periodic halts that release pain, regain trust, behold beauty, recall horror and discard memory-a life pursued. History acquires an allegorical mode yet the narrative rewinds history.” Vivan Sundaram, Six Stations of a Life Pursued (2022) at Al Mureijah Square. In Parliament of Objects (2023), Ibrahim Mahama creates as assemblage of found objects, including abandoned seats, desks, handwritten textbooks, and combines them with Polaroid images of institutional buildings in Ghana. Together, these objects create a timeline of freedom, “a country, and its people, claiming the right to their independence from the British colonizer—a journey that came to an end 65 years ago.” Time as an existential construct created by a society and its durational measurement relative to traditional beliefs, nature and the universe is dramatically presented in the five-screen multichannel mesmerizing installation by Sir John Akomfrah. The brilliance and sheer poetry of Akomfrah’s practice in pushing the boundaries of the cinematic form to explore radical ways of understanding history is taken literally and figuratively to new levels in the new film commissioned for Sharjah 15, Arcadia (2023). Arcadia “tackles the ecological implications of settler colonialism, extractive capitalism and the extinction of microorganisms…. The artist extent the oral as well as representational history of various indigenous cultures to create a multiscreen installation that combines events, memories, landscapes and characters in the form of a mixed media collage. The result is an immersive experience of a less human centric view of postcolonial reality that brings to the floor the often-destructive relationship between humans and inorganic matters in an already fragile ecology.” If there is one work that could be said to embody the themes of memory, identity, postcolonialism, temporality and the politics of aesthetics that pervade so many of the eloquent artistic statements in their manifest forms, media and materials, it is for me, Arcadia. I am thrilled to learn that Akomfrah will represent the UK in Venice in 2024. John Akomfrah, Arcadia (2023) at Al Mureijah Square. Environmental Historical Memory, Diasporic Labor, Food, Shelter, Power and Extraction of Resources Not surprisingly many artists draw on indigenous epistemologies to examine the future of shared resources. Others investigate the meaning of food in socio-political and cultural context on a local and global scale. Elia Nurvista reflects on concepts within food discourse related to “globalization, material extraction, exploitation and exotification.” Mirna Bamieh’s work in the Old Al Jubail Vegetable Market, Sour Things (2023), uses fermentation “as a metaphor for zooming into micro-words of encapsulated multitudes in order to look at life, cities, people, relationships and culture.” Joiri Minyaya’s work investigates colonial hierarchies particularly in reference to the repetitive fixation of the global north on the tropics as an “abundant land and society poised for extraction and servitude, visually linking ethnobotany and exoticism, tropical identity and its commodification” (ie: Gaugin). Joiri Minaya Performance in Old Al Jubail Vegetable Market. Mandla is a queer and agender writer performer who presents a video installation taken from As British as A watermelon (2019), a performance examining frameworks of systemic racism through the bounds of a structure of fluorescent lights and watermelons. Mandla, As British as a Watermelon (2019) at the Africa Institute. Carolina Caycedo’s Agua Pesada / Alma Althaquil [Heavy Water] (2023) is inspired by the aludeles, bottomless-pot furnaces of the Almadén mercury mines in Spain, the largest and most prolific mercury concentration in the world. The work is intended to “contribute strength of environmental historical memory considers fundamental force in defense of human and nonhuman entities against destructive violence. Carolina Caycedo, Agua Pesada / Alma Althaquil [Heavy Water] (2023) on view at Calligraphy Square. Felix Shumba explores social trauma in an attempt to interrogate ways in which history is constructed. Researching in the historic archives of his native Zimbabwe, he presents Ruwa River (2022) and Nocturnal Body (2022) revealing from his research the lethality of the government’s suppression of the insurgency through the use of chemical weapons. For Shumba, the materiality of charcoal parallels the suffocation of black lives. Felix Shumba, Ruwa River (2022) and Nocturnal Body (2022) at the Old Al Dhaid Clinic. Nari Ward presents Duty Colossus (2023), a site-specific installation in a former fish factory composed of two elements, a dhow and a Jamaican fish trap. For Ward, one important element is the space in between. Even more important, Ward told me is the fish trap as a metaphor for time. The portal functions through an interplay of seduction and entrapment. With reference to time, Ward quotes from Jimmie Durham: “we live with our experiences always in the past as echo and reverberation of the present.” Artist Nari Ward in front of his work, Duty Colossus (2023) at Kalba Ice Factory. Doris Salcedo presents Uprooted (2020-2022), 804 dead trees that are sculpted and assembled to depict a house. “Structurally uninhabitable, the work symbolizes the refugee’s predicament—a seemingly permanent state of impermanence… attributing the cause of this forced movement of people most fundamentally to the capitalist destruction of the environment, Salcedo manipulates organic material into monumental sardonic artefact.” Doris Salcedo, Uprooted (2020-2022) at Kalba Ice Factory. Maria Magdalena Campos-Pons “grapples with the coordinates of diasporic identity formation: migration, displacement, collective memory, spirituality and gender.” In her work, Murmullo Familiar [Family Whisper] (2021-2023), “alongside beds of red sand collected from Mleiha, a desert in Sharjah that is reminiscent of the soil in Mantazas, Cuba, a set of glass stools, cast from one passed down by Campos-Pons’ family across generations, operate as metaphors of absence, representing those lost or unaccounted for by the ruptures of Afro-Cuban history …” Campos-Pons will have a solo exhibition at the Brooklyn Museum at September 2023. Maria Magdalena Campos-Pons, Murmullo Familiar [Family Whisper] (2021-2023) at Al Mureijah Square. Rachid Hedli’s performance of Gueles Noires (2016), a French term used as slang for soot covered miners is a brilliant work of choreography superbly executed by his company Cie Niya, composed of a composer and performers, sons and grandsons of immigrant miners from the French Pas de Calais region. The atmospheric dance blends narrative and hip hop elements with breaking and popping movements to emulate the rhythm of hard labor set to a soundtrack of heavy machinery the piece pays tribute to Hedli’s father who died of lung cancer. Tania El Khoury is a live performance artist. Her work is drawn from the political realities of the Lebanese Civil war and its aftermath. I attended El Khoury’s performance The Search for Power (2018), limited to an investigation around a dinner table for thirty people inviting us to track her research into power figures in Lebanon which interfered with her wedding celebration at which we are recreating the investigation and experience. During the Biennial, “an audio guide helps audiences navigate the dense archives amassed during El Khoury’s … transnational research, locating electricity at the intersection between colonial legacies, political and economic hierarchies and everyday acts of resistance, survival and sabotage.” Tania El Khoury, The Search for Power (2018) at the Old Jubail Vegetable Market. Each Biennale has its own character and traditions as each varies within its own paradigm from biennial to biennial. From what I have heard of attendees of the past, Sharjah 15 is at the pinnacle, benefitting from the collective wisdom and experience of the past. One must acknowledge the stunning curatorial success of Hoor Al Qasimi in both the selection of artists and the installation of the works in each exhibition, including the selection of sites. Each artist is represented by multiple works and located in conversation with adjacent artists. While there is a denial of a single curatorial voice, the El Quasim’s decades of experience is reflected in this important edition of the Sharjah Biennial. Notwithstanding this singular curatorial excellence, the spirit of being guided by one another, another stated aim, is achieved, “by our ever evolving cross cultural solidarity.” A Practical Guide to the Sharjah Biennial 15: Thinking Historically in the Present Recommended Artists**** The Sharjah Art Museum There are numerous retrospective historical photographs, indigenous artists, in addition to numerous other excellent creations and works by known and some lesser-known artists. Anybody visiting the museum should carefully choose, in accordance to the Sharjah Biennial Guidebook, to their personal taste. Bait Al Serkal Wangechi Mutu Helina Metaferia Manthia Diawara David Hammons Hassan Hajjaj Bank Street Building Tania El Khoury Lee Kai Chung Calligraphy Square Carrie Mae Weems Isaac Julien Mithu Sen Carolina Caycedo Al Mureijah Square Mona Hatoum Maria Magdalena Campos-Pons Vivan Sundaram John Akomfrah Hajra Waheed*** Bouchra Khalili*** Old Al Jubail Vegetable Market Tania El Khoury Elia Nurvista Mirna Bamieh Joiri Minaya Khalid Bin Mohammed School (The Africa Institute) The Living and the Dead Ensemble mandla The Flying Saucer Kambui Olujimi Al Hamriyah Studios Mary Sibande Veronica Ryan Hank Willis Thomas Nabil El Makhloufi Old Al Diwan Al Amiri Kerry James Marshall Yinka Shonibare Joiri Minaya Barbara Walker Old Al Dhaid Clinic Cao Fei Felix Shumba Laura Huertas Millán Ibrahim Mahama Rehab Eldalil Pushpakanthan Pakkiyarajah Kalba Ice Factory Nari Ward Doris Salcedo*** Khorfakkan Art Centre Coco Fusco Theaster Gates Hotels The Chedi Al Bait Sharjah Sheraton Sharjah Beach Resort & Spa Coral Beach Resort Sharjah Food The Saturday Night Taste of Arab Buffet is Extraordinary! * Barbara T. Hoffman is a preeminent international art lawyer with an undergraduate degree in art history. She has been a passionate follower of the contemporary art scene for years and a regular attendee at the Venice Biennale, Documenta, and other international art events since the early 1980’s. She writes frequently on law, art and politics for a variety of publications and is a member of the International Association of Art Critics. She serves on the Board of Performa, the Visual Performance Biennale, founder State Volunteer Lawyers for the Arts and is on MoMA's Contemporary Arts Council and Black Arts Council. She serves on the board of several artist endowed foundations and advises museums and artist foundations on issues of governance, including board development and conflict of interest and intellectual property. www.hoffmanlawfirm.org. ** Quotes included in the article, unless otherwise stated by the author, are taken from the Guidebook to the Sharjah Biennial 15: Thinking Historically in the Present. ***Artists who received the Sharjah Biennial Prize at Sharjah Biennial 15: Thinking Historically in the Present. *** This by no means reflects artists not included in the list. Notwithstanding, the author dedicated only five days to viewing the Sharjah Biennial and Inevitably some artists may have been overlooked. It is a matter of time. I would return in a minute for another experience of the Historical Present.

The Art Lawyer’s Diary July 2022

2023-06-13T11:34:04Z

The Art Lawyer's Diary: Venice Art Biennale & documenta fifteen - Icons of the International Art World Question the Role of Art and the Artist in Times of Global Crisis

Jun 22, 2022 The Venice Art Biennale: The Milk of Dreams Barbara T. Hoffman, Esq.* The 59th edition of the Venice Art Biennale, under the title of “The Milk of Dreams,” opened to the public on April 23 - November 27, 2022. The exhibition takes place in the Central Pavilion of the Giardini and Arsenal. There are also 88 National Pavilions throughout the city. The curator Cecilia Alemani, the first Italian woman to curate the Venice Art Biennale, responds to the convulsions of our time: Covid 19, climate change, disruption of war, loss of community and culture – by asking us to imagine new forms of co-existence with society and its social structures, technology, and nature: how is the definition of the human changing? What constitutes life and what differentiates plant and human? What is the human relationship to technology? In an interview, Alemani stated: “There is a lot of spirituality in the show, especially in the historical micro-exhibitions, which I call ‘time capsules’. One of the pillar themes is the “post-human” inspired by authors like Donna Hardway, who challenges the idea of the individual being at the center of the world. These ideas are about imagining other kinds of relationships, rooted in togetherness and symbiosis. At Venice Art Biennale, I was looking at artists who were trying to break with the familiar polarities and dualities that came out of the Enlightenment – mind and body, nature and culture, feminine and masculine and so on – to imagine a world that is more fluid and in-between. That is where the occult and the spiritual come in. The Milk of Dreams takes its title from a book of Lenore Carrington (1917-2011) in which the surrealist artist describes a magical world, which is constantly reenvisioned through the prism of imagination where everyone can change, be transformed, become something or someone else.” Alemani states, “In this climate many artists envision the end of anthropocentrism… Others react to the dissolution of universal systems, rediscovering localized forms of knowledge and new politics of identities. Still others practice what feminist theorists call the ‘re-enchantment of the world’, mingling indigenous traditions with personal mythologies in much the same way as Carrington.” Notwithstanding, it is a paradox that Alemani’s focus remains so rooted and anchored in the Western paradigm: the individual artist and the power of art and the artist to help “us” (the viewer) imagine new modes of co-existence and infinite powers of transformation. Alemani’s curation is brilliant, well researched and the source of new discoveries. Women artists of all generations dominate and others without voices are heard. However, spirituality and magic did not start with the Surrealists. Alemani’s focus is on adding overlooked artistic voice and identities to broaden the western aesthetic canon. Images from Milk of Dreams Illustrate Alemani’s Curatorial Perspective at Venice Art Biennale Simon Leigh, USA (2022). The entrance to the Milk of Dreams Exhibition at the Arsenal. Central Pavilion. Barbara Kruger, Untitled. Beginning, Middle End. Homage to Belkis Ayon. La consagracion, Havana, Cuba. Arsenales. documenta fifteen Founded in 1955 in Kassel, Germany, documenta is a quinquennial international art exhibition that carries heavy intellectual weight in the art world, customarily programmed for a duration of 100 days in venues throughout Kassel. While held in high regard among artists, curators and institutional directors, perhaps less so among collectors and dealers given its often more academic, intellectual and less market-friendly nature. Normally, the artistic director is a well-recognized international curator: Adam Szymczyk (14); Catherine David,Pompidou Paris 1997 (10); and Okwui Enwezor 2002 (11). Breaking with this tradition, documenta fifteen poses a radical artistic response to the world’s crisis, at first encounter, a seismic shift in envisioning not only the role of the site and the exhibition, but the very role of the artist and the systems of art production. documenta fifteen is not theme based. It is about process and practice: how do people create the material and immaterial infrastructure they need to nurture and sustain themselves and their ecosystems? documenta fifteen takes place from June 18 to September 25, 2022, under the Artistic Direction of ruangrupa at 32 venues in Kassel, Germany. The Jakarta-based artist collective has built the foundation of documenta’s fifteenth edition on the core values and ideas of lumbung, the Indonesian term for a communal rice barn. The Indonesian word ruangrupa loosely translates as “art space.” ruangrupa’s work is based on a holistic social, spatial and personal practice that is strongly rooted in Indonesian culture, where friendship’s solidarity and community are of central importance. lumbung as an artistic and economic model is rooted in principles such as collectivity, communal resource sharing, and equal allocation and is embodied in all parts of the collaboration and the exhibition. lumbung is the concrete practice adopted by ruangrupa and the Artistic Team, lumbung members and lumbung artists and all participants on the path towards documenta fifteen, throughout its 100 days and beyond. The focus is on art as process, and the artist as social activist who mediates between the artist’s engagement with social issues and the community. “We want to create a globally oriented, collaborative and interdisciplinary art and culture platform that will remain effective beyond the 100 days of documenta fifteen. Our curatorial approach strives for a different kind of collaborative model of resource use–in economic terms but also with regard to ideas, knowledge, programs and innovations.” - ruangrupa The artist is seen as mediator, and “now we are looking back and asking, ‘what is harvest?’” 14 lumbung members or artists collectives and 53 lumbung artists participate in documenta fifteen. In turn, these artists have been to include their networks. ruangrupa and the artistic team are aware of the paradoxes in this event. In documenta fifteen, lumbung is still approaching the economy using old paradigms. documenta fifteen is still using the language of and can be understood as a conventional/mega event despite the artistic attempts to approach it as more bottom up. Notwithstanding, the aim here is ultimately the community,ruangrupa stated “lumbung is not only ours now… Own it, and make your own lumbung – ultimately, then, the energy and power of becoming and being is transmitted by the artistic experience transcending the boundaries which divide us to connect us in spirit. The practices and methodology are different.” Thus, in the opening press conference, the artist Agus Nur Amal PM Toh informs us of his project with students in Kassel which facilitates a series of storytelling sessions based on the Sudanese life principles, Tri Tangua: “Public space contains a multitude of narratives, all competitions for how they can function as truth within the context of an authoritarian state or one where the powerless have no media access, native histories become a site to find answers.” Press conference performance documenta fifteen takes place in three geographic zones of Kassel: (1) Mitte, the central city part – museums, Fridericianum***, documenta halle***, WH 22; (2) Fulda – Hafenstrasse 76 and (3) Bettenhausen*** – The Fondation Festival Sur le Niger*** (Hubner-Areal) and Atis Rezistans | Ghetto Biennale *** (St. Kuniqundis). *** Don’t miss these. Fridericianum (Mitte) For the duration of documenta fifteen, the former exhibition building has become Fridskul (Fridericianum as school) and is being used by artists and collectives to apply and demonstrate different models of horizontal education that are rooted in life. ruangrupa see it as a – a practice of sharing and a form of architecture often used to store harvests in Indonesian. As a lumbung, as both a domestic place and a social space where all can gather, the cold museum space of the Fridericianum becomes a warm and dynamic place. Artists are sleeping at Fridericianum, eat there communally and hold student encounters at the space. documenta Halle (Mitte) Wajukuu Art Project documenta fifteen advocates for the collective to substitute for art institutions. However, the idea of the collective making individual artworks is more complex and nuanced and warrants further discussion based on each collective's processes. Wakjuu Art Project. Wakija Kwetu (When they come to our place), 2022. Mixed-media installation. Artists in the Wajukuu Art Project have created not only as a collective but as these images reveal, have created powerful works of artistic authorship based on a new aesthetic of the slum and its materials. Wajukuu Art Project’s architectural installation is a tunnel inspired by both Makuru traditional housing and informal aesthetics of the slum. Aesthetic values rest on cultural heritage, cultural attitudes and accessibility of materials. Britto Art Trust The Bangladesh-based Britto Arts Trust creates a bazaar, a family kitchen and a large-scale mural all exploring geopolitics, land rights and food. The small-town bazaar recreation rasad 2022 underscores how each hand made object becomes precious to the contrary of the reality where food stuffs are divorced from natural origins and survive only through chemical conditioning and false environments. Bettenhausen La Fondation Festival Sur le Niger (Hubner-Areal) At this time of dislocation and social upheaval, global pandemic, the crumbling of our international legal order and its institutions, immigration, destruction of cultures in the wake of globalization, documenta provides guidance. The Fondation Festival Sur le Niger, founded in 2009 by Mamau Daffe and its individual artists, look to traditions, music and social practices as a means of identity and social cohesion. Guest and hosts at the presentation of the Maaya bulon and tea ceremony: Yaya Coulibaly, Abdoulaye Konate, Salia Male, Adama Keita, Mamou Daffe, founder. The degree of local support for the festival and the spirit of entrepeneurship is evident by the presence of the mayor of Sekou. Performa, the New York performance Biennale introduced in its last biennale the importance of the role of architecture and architectural space as an element of visual performance artists. Traditional Malian culture recognized the bulon as a sacred space and social structure as early as 1653 with the founding of the Mali empire. The Bulon symbolizes the heart, the past, and the present of the family, a place of decision making and community with the ancestors. It is also a space for teaching and transformation. In this sense the Fridericianum also becomes a Bulon space. “True art,” writes Andre Breton, the Surrealist, “is the one that strives to give expression to the inner needs of man and humanity.” While Alemani's inquiry begins with and credits the Surrealists, for this new art aesthetic, documenta fifteen takes us to more ancient cultures. The Maaya is an integral concept of humanity based on the relationship of the individual and the community. This is a convergence of views where the function of art and social practice are the same. Atis Rezistans | Ghetto Biennale (St. Kunigundis Church) One of the most powerful installations is created by the collective Atis Rezistans from Haiti. A fluid collective of artists, working in the Grand Rue neighborhood of Port au Prince, Haiti, the collective was founded by sculptors Andre Eugene and Jean Herald Celeau in the late 1990’s. Coincidentally, my client in the famous case of AFP v. Morel was with Andre teaching art students during the 2010 earthquake that sparked the case that established photojournalist rights on the internet based on the Twitter TOS. The sculptures embody the spirit of the collective – the style derives from popular culture, Haitian history and voodoo using a range of found objects, mostly what is available in this country for artistic production. Barbara Hoffman with Evel Romain and founder Andre Eugene There will be those who ask is this a proper role for documenta? This small sized town in Germany of under 250,000, for more than 75 years has provided intellectual content to the art world as an agent of thought and discussion. Could this have been a conference or a symposium? Maybe. But it is a work and experiment in art making that is important. It is, as was said, not the last documenta but the first lumbung. The seeds of what is germinated here have yet to fully harvest. However, kernels can be found in artist activism in the U.S as either the practice or a practice of sharing with the community. One has only to look at the number of artist-endowed foundations, the renewed study and importance of archives, and the focus on artist residencies and leisure time, conversations and storytelling. Black Quantum Futurism, based in Philadelphia, is a documenta lumbung inter lokal member represented by three projects sourced in African diaspora, nonlinear temporalities, quantum physics and housing futures as framework. Numerous artist-endowed foundations supplement individual artistic practice to use foundations as a community-centered artistic practice or to provide artistic residencies for artists to think and reflect. Derrick Adam’s Charm City Cultural Cultivation Inc. embodies such lumbung themes as the importance of leisure time and conversation and the power of archives as identity to regenerate and cultivate the rich traditions and culture of Baltimore. Its Last Resort Artist Retreat residency subscribes to the concept of leisure as therapy for the black creative, Titus Kaphar’s NZTHVN, provides an arts model that empowers artists and curators, education and access to a vibrant ecosystem to create a sustainable art community in New Haven. Art as social practice and process - the spirit of lumbung- may not replace biennales or art fairs, but it is a present and a future and awaits the harvest.

The Art Lawyer’s Diary: Venice Art Biennale & documenta fifteen – Icons of the International Art World Question the Role of Art and the Artist in Times of Global Crisis

2023-08-09T20:47:25Z

The Venice Art Biennale: The Milk of Dreams

The 59th edition of the Venice Art Biennale, under the title of “The Milk of Dreams,” opened to the public on April 23 - November 27, 2022. The exhibition takes place in the Central Pavilion of the Giardini and Arsenal. There are also 88 National Pavilions throughout the city. The curator Cecilia Alemani, the first Italian woman to curate the Venice Art Biennale, responds to the convulsions of our time: Covid 19, climate change, disruption of war, loss of community and culture – by asking us to imagine new forms of co-existence with society and its social structures, technology, and nature: how is the definition of the human changing? What constitutes life and what differentiates plant and human? What is the human relationship to technology? In an interview, Alemani stated: “There is a lot of spirituality in the show, especially in the historical micro-exhibitions, which I call ‘time capsules’. One of the pillar themes is the “post-human” inspired by authors like Donna Hardway, who challenges the idea of the individual being at the center of the world. These ideas are about imagining other kinds of relationships, rooted in togetherness and symbiosis. At Venice Art Biennale, I was looking at artists who were trying to break with the familiar polarities and dualities that came out of the Enlightenment – mind and body, nature and culture, feminine and masculine and so on – to imagine a world that is more fluid and in-between. That is where the occult and the spiritual come in. The Milk of Dreams takes its title from a book of Lenore Carrington (1917-2011) in which the surrealist artist describes a magical world, which is constantly reenvisioned through the prism of imagination where everyone can change, be transformed, become something or someone else.” Alemani states, “In this climate many artists envision the end of anthropocentrism… Others react to the dissolution of universal systems, rediscovering localized forms of knowledge and new politics of identities. Still others practice what feminist theorists call the ‘re-enchantment of the world’, mingling indigenous traditions with personal mythologies in much the same way as Carrington.” Notwithstanding, it is a paradox that Alemani’s focus remains so rooted and anchored in the Western paradigm: the individual artist and the power of art and the artist to help “us” (the viewer) imagine new modes of co-existence and infinite powers of transformation. Alemani’s curation is brilliant, well researched and the source of new discoveries. Women artists of all generations dominate and others without voices are heard. However, spirituality and magic did not start with the Surrealists. Alemani’s focus is on adding overlooked artistic voice and identities to broaden the western aesthetic canon. Images from Milk of Dreams Illustrate Alemani’s Curatorial Perspective at Venice Art Biennale Simon Leigh, USA (2022). The entrance to the Milk of Dreams Exhibition at the Arsenal. Central Pavilion. Barbara Kruger, Untitled. Beginning, Middle End. Homage to Belkis Ayon. La consagracion, Havana, Cuba. Arsenales. documenta fifteen Founded in 1955 in Kassel, Germany, documenta is a quinquennial international art exhibition that carries heavy intellectual weight in the art world, customarily programmed for a duration of 100 days in venues throughout Kassel. While held in high regard among artists, curators and institutional directors, perhaps less so among collectors and dealers given its often more academic, intellectual and less market-friendly nature. Normally, the artistic director is a well-recognized international curator: Adam Szymczyk (14); Catherine David,Pompidou Paris 1997 (10); and Okwui Enwezor 2002 (11). Breaking with this tradition, documenta fifteen poses a radical artistic response to the world’s crisis, at first encounter, a seismic shift in envisioning not only the role of the site and the exhibition, but the very role of the artist and the systems of art production. documenta fifteen is not theme based. It is about process and practice: how do people create the material and immaterial infrastructure they need to nurture and sustain themselves and their ecosystems? documenta fifteen takes place from June 18 to September 25, 2022, under the Artistic Direction of ruangrupa at 32 venues in Kassel, Germany. The Jakarta-based artist collective has built the foundation of documenta’s fifteenth edition on the core values and ideas of lumbung, the Indonesian term for a communal rice barn. The Indonesian word ruangrupa loosely translates as “art space.” ruangrupa’s work is based on a holistic social, spatial and personal practice that is strongly rooted in Indonesian culture, where friendship’s solidarity and community are of central importance. lumbung as an artistic and economic model is rooted in principles such as collectivity, communal resource sharing, and equal allocation and is embodied in all parts of the collaboration and the exhibition. lumbung is the concrete practice adopted by ruangrupa and the Artistic Team, lumbung members and lumbung artists and all participants on the path towards documenta fifteen, throughout its 100 days and beyond. The focus is on art as process, and the artist as social activist who mediates between the artist’s engagement with social issues and the community. “We want to create a globally oriented, collaborative and interdisciplinary art and culture platform that will remain effective beyond the 100 days of documenta fifteen. Our curatorial approach strives for a different kind of collaborative model of resource use–in economic terms but also with regard to ideas, knowledge, programs and innovations.” - ruangrupa The artist is seen as mediator, and “now we are looking back and asking, ‘what is harvest?’” 14 lumbung members or artists collectives and 53 lumbung artists participate in documenta fifteen. In turn, these artists have been to include their networks. ruangrupa and the artistic team are aware of the paradoxes in this event. In documenta fifteen, lumbung is still approaching the economy using old paradigms. documenta fifteen is still using the language of and can be understood as a conventional/mega event despite the artistic attempts to approach it as more bottom up. Notwithstanding, the aim here is ultimately the community,ruangrupa stated “lumbung is not only ours now… Own it, and make your own lumbung – ultimately, then, the energy and power of becoming and being is transmitted by the artistic experience transcending the boundaries which divide us to connect us in spirit. The practices and methodology are different.” Thus, in the opening press conference, the artist Agus Nur Amal PM Toh informs us of his project with students in Kassel which facilitates a series of storytelling sessions based on the Sudanese life principles, Tri Tangua: “Public space contains a multitude of narratives, all competitions for how they can function as truth within the context of an authoritarian state or one where the powerless have no media access, native histories become a site to find answers.” Press conference performance documenta fifteen takes place in three geographic zones of Kassel: (1) Mitte, the central city part – museums, Fridericianum***, documenta halle***, WH 22; (2) Fulda – Hafenstrasse 76 and (3) Bettenhausen*** – The Fondation Festival Sur le Niger*** (Hubner-Areal) and Atis Rezistans | Ghetto Biennale *** (St. Kuniqundis). *** Don’t miss these. Fridericianum (Mitte) For the duration of documenta fifteen, the former exhibition building has become Fridskul (Fridericianum as school) and is being used by artists and collectives to apply and demonstrate different models of horizontal education that are rooted in life. ruangrupa see it as a – a practice of sharing and a form of architecture often used to store harvests in Indonesian. As a lumbung, as both a domestic place and a social space where all can gather, the cold museum space of the Fridericianum becomes a warm and dynamic place. Artists are sleeping at Fridericianum, eat there communally and hold student encounters at the space. documenta Halle (Mitte) Wajukuu Art Project documenta fifteen advocates for the collective to substitute for art institutions. However, the idea of the collective making individual artworks is more complex and nuanced and warrants further discussion based on each collective's processes. Wakjuu Art Project. Wakija Kwetu (When they come to our place), 2022. Mixed-media installation. Artists in the Wajukuu Art Project have created not only as a collective but as these images reveal, have created powerful works of artistic authorship based on a new aesthetic of the slum and its materials. Wajukuu Art Project’s architectural installation is a tunnel inspired by both Makuru traditional housing and informal aesthetics of the slum. Aesthetic values rest on cultural heritage, cultural attitudes and accessibility of materials. Britto Art Trust The Bangladesh-based Britto Arts Trust creates a bazaar, a family kitchen and a large-scale mural all exploring geopolitics, land rights and food. The small-town bazaar recreation rasad 2022 underscores how each hand made object becomes precious to the contrary of the reality where food stuffs are divorced from natural origins and survive only through chemical conditioning and false environments. Bettenhausen La Fondation Festival Sur le Niger (Hubner-Areal) At this time of dislocation and social upheaval, global pandemic, the crumbling of our international legal order and its institutions, immigration, destruction of cultures in the wake of globalization, documenta provides guidance. The Fondation Festival Sur le Niger, founded in 2009 by Mamau Daffe and its individual artists, look to traditions, music and social practices as a means of identity and social cohesion. Guest and hosts at the presentation of the Maaya bulon and tea ceremony: Yaya Coulibaly, Abdoulaye Konate, Salia Male, Adama Keita, Mamou Daffe, founder. The degree of local support for the festival and the spirit of entrepeneurship is evident by the presence of the mayor of Sekou. Performa, the New York performance Biennale introduced in its last biennale the importance of the role of architecture and architectural space as an element of visual performance artists. Traditional Malian culture recognized the bulon as a sacred space and social structure as early as 1653 with the founding of the Mali empire. The Bulon symbolizes the heart, the past, and the present of the family, a place of decision making and community with the ancestors. It is also a space for teaching and transformation. In this sense the Fridericianum also becomes a Bulon space. “True art,” writes Andre Breton, the Surrealist, “is the one that strives to give expression to the inner needs of man and humanity.” While Alemani's inquiry begins with and credits the Surrealists, for this new art aesthetic, documenta fifteen takes us to more ancient cultures. The Maaya is an integral concept of humanity based on the relationship of the individual and the community. This is a convergence of views where the function of art and social practice are the same. Atis Rezistans | Ghetto Biennale (St. Kunigundis Church) One of the most powerful installations is created by the collective Atis Rezistans from Haiti. A fluid collective of artists, working in the Grand Rue neighborhood of Port au Prince, Haiti, the collective was founded by sculptors Andre Eugene and Jean Herald Celeau in the late 1990’s. Coincidentally, my client in the famous case of AFP v. Morel was with Andre teaching art students during the 2010 earthquake that sparked the case that established photojournalist rights on the internet based on the Twitter TOS. The sculptures embody the spirit of the collective – the style derives from popular culture, Haitian history and voodoo using a range of found objects, mostly what is available in this country for artistic production. Barbara Hoffman with Evel Romain and founder Andre Eugene There will be those who ask is this a proper role for documenta? This small sized town in Germany of under 250,000, for more than 75 years has provided intellectual content to the art world as an agent of thought and discussion. Could this have been a conference or a symposium? Maybe. But it is a work and experiment in art making that is important. It is, as was said, not the last documenta but the first lumbung. The seeds of what is germinated here have yet to fully harvest. However, kernels can be found in artist activism in the U.S as either the practice or a practice of sharing with the community. One has only to look at the number of artist-endowed foundations, the renewed study and importance of archives, and the focus on artist residencies and leisure time, conversations and storytelling. Black Quantum Futurism, based in Philadelphia, is a documenta lumbung inter lokal member represented by three projects sourced in African diaspora, nonlinear temporalities, quantum physics and housing futures as framework. Numerous artist-endowed foundations supplement individual artistic practice to use foundations as a community-centered artistic practice or to provide artistic residencies for artists to think and reflect. Derrick Adam’s Charm City Cultural Cultivation Inc. embodies such lumbung themes as the importance of leisure time and conversation and the power of archives as identity to regenerate and cultivate the rich traditions and culture of Baltimore. Its Last Resort Artist Retreat residency subscribes to the concept of leisure as therapy for the black creative, Titus Kaphar’s NZTHVN, provides an arts model that empowers artists and curators, education and access to a vibrant ecosystem to create a sustainable art community in New Haven. Art as social practice and process - the spirit of lumbung- may not replace biennales or art fairs, but it is a present and a future and awaits the harvest.

The Art Lawyer’s Diary September 2020

2023-05-16T08:52:18Z

Art world insider Barbara T. Hoffman’s guide to navigating the implications of current developments in art law as they relate to artists, collectors, galleries and museums, as well as a forum for the discussion of the implications of current events at the intersection of art, law, politics, and culture for the art world and beyond. An art world friend with more than 50,000 thousand followers on Instagram, advised me to stick to writing on art law: that is why people look to you. Admittedly, I have not followed the advice: a focus on politics, culture and the survival of artists, friends and clients in this unprecedented period of political brinkmanship and COVID 19 involves sharing information and strategies for what is literally survival of our institutions, our values, and of course our humor and equanimity in the face of it all. This newsletter refocuses on an area of expertise and passion: the subject of artists, copyright, and the contours of various judicial doctrines implementing or detracting from those protections. The subject is provoked by a webinar in three parts I was invited to present via Zoom in May and June to the American Society of Media Photographers entitled “Know Your Rights, Monetize Your Assets: Copyright and Other Legal Issues for the Professional Photographer.” Since that webinar series, a number of other significant developments involving art, artists, social media, copyright, and fair use make this a timely and important subject for all creatives and those who license creative works. Of course, the newsletter concludes with some humor with some useful information and resources in the middle.

A Social Media Victory in the Courts for Photojournalists

The past few years have seen a plethora of lawsuits brought by professional photographers against news websites alleging that the websites' use of Instagram's embedding API to display images originally posted by the photographers on their personal Instagram accounts constitutes copyright infringement. Sinclair v. Ziff Davis, LLC, and Mashable, Inc was one of such cases. In 2016, Mashable republished National Geographic photographer Stephanie Sinclair's photograph without her consent and permission in an article by embedding her photo from Instagram. In 2018, Judge Kimba Wood dismissed Sinclair's Second Amended Complaint, finding that Mashable had used Sinclair's photograph pursuant to a valid sublicense from Instagram, and that using Instagram’s embedding API was not infringement. In a similar case brought in 2020, McGucken v. Newsweek LLC, a photographer posted on his Instagram account a photograph of an ephemeral lake that had appeared in Death Valley, California. The following day, Newsweek published an article about the ephemeral lake, embedding the photographer's Instagram post of the lake as part of the article. The photographer sued Newsweek for copyright infringement. In that case, Judge Katherine Polk Failla found on June 4, 2020 that though Instagram's various terms and policies clearly foresee the possibility of entities such as Newsweek using web embeds to share other users' content, none of them expressly grants a sublicense to those who embed publicly posted content.

Ars Tecnica, in an article with the headline "Instagram just threw users of its embedding API under the bus," reported that in answer to an email it sent following Judge Failla’s decision, a company spokesperson for Facebook (which owns Instagram) has stated, on the record, that Instagram's terms of use do not grant permission to users of its embedding API to display embedded images on their websites without additional permissions from the copyright owners

On June 24, 2020, Judge Wood granted Sinclair’s motion to have the Court reconsider and reverse the motion to dismiss her Second Amended Complaint for copyright infringement. On the basis of Judge Failla’s decision, Judge Wood found insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable. Judge Wood found that while the platform’s policy might be interpreted to grant API users the right to use the API to embed the public content of other Instagram users, that is not the only interpretation to which that term is susceptible, quoting Judge Failla in McGucken v. Newsweek. The Court then relied on Agence France Press v. Morel, my case involving AFP’s theft of my client Daniel Morel’s iconic photographs of the earthquake in Haiti in 2010 based on false reliance on the Twitter TOS, (the jury awarded him over one million dollars) for the proposition that the platform’s policy terms are not sufficiently clear to warrant dismissal of Sinclair’s claims on a motion to dismiss. While the good news is that Instagram’s Terms of Service are no longer seen as granting rights to an embedded image, it is still unfortunate that the status of embedding in the Second Circuit remains unclear, with Judge Wood and Judge Failla finding no infringement for embedding, and Judge Katherine Forrest, in my view correctly, finding that embedding itself constitutes copyright infringement (Goldman v. Breitbart News Network, LLC).Goldman is correctly decided and has I have previously argued in another case, the Second Circuit (New York) , should not follow the Silicon valley friendly, Ninth Circuit and such cases like Perfect 10 which find embedding and framing not to interfere with the copyright holder’s right to display/ transmit a work.

FAIR OR FOUL: PROTECTING CELEBRITY ARTISTS AT THE EXPENSE OF A CREATOR’S RIGHTS. ANDY WARHOL FOUNDATION v GOLDSMITH (2nd Cir. 19-2420)

Oral argument in the Second Circuit Court of Appeals in the Andy Warhol Foundation v. Goldsmith took place on September 15, 2020. In the lower court case (The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al,) Judge Koeltl of the SDNY, incorrectly in my opinion, decided on a motion for summary judgement (there were no disputes as to the facts), that Andy Warhol’s silk screen images of Prince which copied noted portrait photographer Lynn Goldsmith’s image of Prince, did not constitute copyright infringement. On July 1, 2019, Judge Koeltl ruled that when Andy Warhol copied an unpublished photographic portrait of the late singer Prince, (allegedly provided to him by Vanity Fair as a resource), and created 16 different variations of the unpublished photo, that these were “fair use” and not copyright infringement. Plaintiff, Andy Warhol Foundation for the Visual Arts, immediately praised the decision saying “Warhol is one of the most important artists of the 20th century, and we’re pleased that the court recognized his invaluable contribution to the arts and upheld these works.” “Fair use” is a statutory affirmative defense to copyright infringement. 17 U.S.C. § 107. “The four factors identified by Congress as especially relevant in determining whether the use was fair are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect on the potential market for or value of the copyrighted work.” The critical question in determining fair use is whether copyright law’s goal of “prompt[ing] the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” To make that determination, the Supreme Court has articulated in the case of Campbell v Acuff Rose that one work transforms another when “the new work … adds something new, with a further purpose or different character, altering the first with new expression, meaning or message. Although transformation is a key factor in fair use analysis under factor one, whether a work is transformative is often a highly contentious topic, more often applied it appears to justify a conclusion, than it is a bright line rule of law. And recently the direction seems to be in the direction of denying to photographers the copyright protection to which their work is entitled, thus, upsetting the delicate balance between the promotion of the artist’s creativity by providing to artists the rewards of their creations and promoting the ability of secondary users to create using freely the seeds of their creation. Of course, an artist’s celebrity status is not written into the copyright law under Section 107, the section on fair use. For that misunderstanding, one needs to look at a sharply criticized and debated 2013 Second Circuit decision in the case of Cariou v. Prince, the most recent articulation of the muddled and murky fair use doctrine. Plaintiff Patrick Cariou published Yes Rasta, a book of portraits and landscape photographs taken in Jamaica. Defendant Richard Prince was an appropriation artist who altered and incorporated several of plaintiff’s photographs into a series of paintings and collages called Canal Zone that was exhibited at a gallery and in the gallery’s exhibition catalog. The issue was whether defendant’s appropriation artwork, which incorporated plaintiff’s photographs, must comment on, relate to the historical context of, or critically refer back to the plaintiff’s original work to qualify for a fair use defense. The question was of course raised, because in Acuff, 2 Live Crew did just that.

The Second Circuit found Prince’s uses to be fair. A secondary use does not need to comment on or critique the original in order to be transformative as long as it produces a new message. In this case, while Cariou’s book of 9 ½” x 12” black-and-white photographs depicted the serene natural beauty of Rastafarians and their environment, Prince’s work featured enormous collages on canvas that incorporated color and distorted human forms to create a radically different aesthetic. Therefore, even though Canal Zone did not comment on or critique Yes Rasta, the court still held that it was a transformative fair use of Cariou’s photographs. Whether or not art is transformative depends on how it may “reasonably be perceived” and not on the artist’s intentions. As a District Court Judge, Koeltl was bound to follow Cariou: “In sum, the Prince Series works are transformative. They ‘have a different character, give [Goldsmith's] photograph[] a new expression, and employ new aesthetics with creative and communicative results distinct from [Goldsmith's].’ See Cariou, 714 F.3d at 708. They add something new to the world of art and the public would be deprived of this contribution if the works could not be distributed. The first fair use factor accordingly weighs strongly in AWF's favor.” The court also found no evidence that the defendant’s work usurped either the primary or derivative market for the plaintiff’s photographs. Even if a secondary use damages or destroys the market for the original material, it can still be fair use as long as its nature and target audience are different from those of the original.

In finding Warhol’s use transformative, the court denies protection to those elements of a photographic portrait that are protected by copyright law, as if the fair use defense to copyright infringement and the concept of celebrity transformative use literally erases “substantial similarity” and fails to appreciate how extensively Warhol’s silkscreen is derivative of and misappropriated protected expression from Lynn Goldsmith’s photographic portrait of Prince. It is perhaps because of the Second Circuit’s decision in 1992 in Rogers v. Koons, finding that protectible elements of originality in a photograph may include “posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved,” Judge Koeltl did not consider the Warhol Foundation’s argument that the works were not substantially similar. Notwithstanding, the court’s lack of solicitude for such camera-related choices in Goldsmith’s portrait of Prince seemed to erase these copyrightable protected elements to support the finding of transformative use. His analysis of factor one seems to consider photographs as raw material facts or ideas which are not the subject of copyright protection.

Rentmeester v. Nike, Inc: Photographs Are Imbued with No Less Creativity Than Any Art Form

The idea that "photographs are imbued with no less creativity, depth, and meaning than any other art form, and as such should be entitled to the full protection of copyright law" is an essential concept to consider when examining the scope of copyright protection for a photograph. Notwithstanding, in Rentmeester v. Nike, Inc., the Ninth Circuit affirmed the district court's dismissal of a copyright infringement claim filed by Jacobus Rentmeester ("Rentmeester") against Nike, Inc. ("Nike"), holding that Nike's photograph was not "substantially similar" to Rentmeester's photograph as a matter of law. The Ninth Circuit's misguided application of copyright law in finding that the works were not “substantially similar” has serious implications for photographers' development of creative works in the future because that legal conclusion means that there is not copyright infringement even though as in this case, Nike had access to the image. The determination that this iconic pose was the equivalent of an unprotected idea which flows from basketball threatens the ability of photographers to be remunerated through license revenues for their creativity.

In 1984, Rentmeester photographed Michael Jordan ("Jordan") for an issue of Life Magazine that highlighted athletes who would be competing in the Summer Olympic Games. The photograph featuring Jordan in "an artificial dunk pose inspired by ballet" is revered "by TIME Magazine as one of the most influential images of all time." In addition to the unique ballet pose, Rentmeester largely orchestrated many of the elements of the photograph, including the camera position, strobe lights, and shutter speed. Subsequently, Rentmeester and Nike executed a licensing agreement that allowed Nike to use the color transparencies of his photograph. However, Nike violated this agreement when it hired its own photographer to shoot a photograph of Jordan that was "obviously inspired by Rentmeester's" photograph. Nike's photograph captured many visually similar elements to the Rentmeester photograph, notably the leaping position towards the basketball hoop and the camera angle. Then, Rentmeester allowed Nike to use its photograph on billboards and posters for two more years for $15,000. In 2015, Rentmeester filed suit for copyright infringement because Nike continued to reproduce the photograph after the original two-year term expired. The Ninth Circuit held that even though the two photographs are similar, the photographs are not substantially similar because Nike's photograph displays distinct and creative photographic choices. Additionally, the court reasoned that there was no copyright infringement because Rentmeester cannot prevent other photographers from capturing the idea "of Jordan in a leaping, grand-jete-inspired pose.” The First, Second, and Eleventh Circuits award copyright protection for a photographer's "artistic judgment" in contributing "original elements" to a photograph. If the photographs were analyzed in one of these circuits by considering Rentmeester's creative choices in the "selection and arrangement" of photographic elements, the court would most likely have found that the photographs are substantially similar. Unlike the Ninth Circuit, these circuits would have found that a ballet-inspired pose is both original and protectable under copyright law, and therefore, “substantially similar” as did Judge Koeltl, with some reluctance in Warhol. An Amicus brief submitted by a group of law professors on the Warhol side, “Brief of Amici Curiae Law Professors in Support of Appellees and Affirmance,” is particularly troublesome in this regard. It states that “Warhol’s Prince Series has similarities with the underlying photograph of Prince taken by Lynn Goldsmith, but inspection reveals that the overall aesthetic impression of the Warhol Prince Series is completely different from the Goldsmith photograph. The dramatic divergence in visual rendition makes the two works not substantially similar. Although the district court was correct to grant summary judgment in favor of Warhol, Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d 312, 331 (S.D.N.Y. 2019), traditional infringement analysis is a more fundamental ground on which to decide this case than fair use.” Their arguments would totally eviscerate copyright protection for photographers, both artistic and photojournalists, effectively depriving one category of creators of the ability to earn a living for the interests of celebrity artists and corporate America. Patrick Cariou and Lynn Goldsmith provide photo documentation and narratives which might not otherwise be told. To deprive them of their licensing revenues from derivative works, display and reproduction is to cut at their means of livelihood and artistic production. Equally as troublesome is the argument of the Rauschenberg Foundation in the Amicus Curiae brief it submitted on the side of the Warhol Foundation. Rauschenberg himself appropriated, without paying the customary price, the work of photojournalists on the front lines, depriving them of licensing revenue. The Rauschenberg Foundation argues “that two observers may perceive different messages while looking at a secondary work that borrows from an original one. But if one of those observers may reasonably perceive a 'new expression, meaning, or message' in the secondary work, the work should be deemed sufficiently 'transformed' for fair use.” That is an even bigger stretch than Cariou. The arguments of these two wealthy foundations who state a mission to support artists clearly do not include the photographer or photojournalist amongst the worthy of their support. Judge Sullivan, sitting by designation at oral argument, asked the right questions. He seemed to understand issues like licensing and the rights of a copyright owner, including the right to control derivative works. Let’s hope this leads to a remand but if not, a rejection, of the broad interpretation of fair use requested by the Warhol Foundation and its supporters and which lurks in the lower court decision balancing of the fair use factors.

Barbara London’s Book and New Podcast

Barbara London, the prescient curator who founded MoMA's video program, has published with Phaidon, January 22, 2020, Video/Art: The First Fifty Years. The book now in a second printing recounts the artists and events that defined the medium's first 50 years and is a bible to video as Roselee Goldberg’s Performance Art, also by Phaidon, is to that field. Not one to rest, Barbara, less than six months after publication, is engaged in a new endeavor to share her abundant knowledge, energy and creativity. She launched an exciting new podcast series, Barbara London Calling, where she portrays “media art as the farthest-reaching, most innovative art of our time—a kind of art, and artist, that plays an essential role in the study and understanding of contemporary art in general.” Her podcast is worth the listen and a complement to the book. I look forward to future episodes, which, like Performance Art, was almost a Cinderella, until through efforts of Barbara, the majesty and influence of the medium has been recognized. Her most recent episode features Cao Fei, an “artist who works across film, digital media, photography, sculpture, installation and performance. She has a keen interest in documenting the social impact of technological developments over the last two decades. Cao Fei is interested in how the virtual world contradicts and coincides with reality, resulting in something ambiguous and complex. Her starting point is China and how people, especially young people, navigate the rapidly changing social and technological landscape.” This is an exceptional listen, and a complement to the book. I look forward to future episodes about media art, which, like Performance Art, was almost a Cinderella, until through the efforts of Barbara, the majesty and influence of the medium has been recognized. You can find the Cao Fei episode at https://www.barbaralondon.net/cao-fei/ . I encourage you to find other episodes and learn more about the podcast series at https://www.barbaralondon.net/barbara-london-calling-podcast/ .

Howardena Pindell at The Shed

In some exciting news, Howardena Pindell’s latest exhibit Rope/Fire/Water will open at the Shed on October 16, 2020. In her first solo exhibition at The Shed, Pindell presents her first video in twenty-five years, an extraordinary and thought-provoking piece “examining the violent, historical trauma of racism in America and the therapeutic power of artistic creation.” Timed tickets are available free through October 31. https://theshed.org/program/143-howardena-pindell-rope-fire-water To learn more about Howardena and her remarkable life and artistry, I wholeheartedly encourage you to read the interview she did with the New York Times in July, which discusses her 1990 work “Scapegoat.” https://www.nytimes.com/2020/07/24/t-magazine/howardena-pindell.html.

For Your Consideration...

I don’t know whether to laugh or cry, I do know after the “debate,” I intend to vote early and in person. Vote and encourage everybody you know to vote in person and early!!!

The Art Lawyer’s Diary June 2020

2023-05-16T10:34:13Z

The Hoffman Law Firm's The Art Lawyer's Diary by an art world insider is a guide to navigating the implications of current developments in art law as they relate to artists, collectors, galleries and museums, as well as a forum for the discussion of the implications of current events at the intersection of art, law, politics, and culture for the art world and beyond.

Witness to a Murder, a Movement, and Democracy on the Brink

This Art Lawyer's Diary is inspired to speak out by the recent events regarding systemic racism and inequality in our country, provoked by the murder of George Floyd by police officers in Minneapolis, as well as the murders of Ahmaud Arbery, Breonna Taylor, and so many others; by the stark inequality revealed by the disproportionate number of deaths of African Americans from COVID-19, and the higher unemployment rates among African Americans. This weekend, after the first edition of this newsletter went out on Friday, June 12, an African American man, Rayshard Brooks, was murdered, shot in the back by a policeman, having done nothing more than fallen asleep in his car in a drive-in lane at Wendy's. As the district attorney said, there is no reason that their initial encounter - the officer's cam-corder shows twenty-two seconds of courteous conversation - should have ended this way. This incident supports the idea that the mentality and consciousness of policing today is ill-suited to the problems we have. That this initially peaceful encounter turned violent and ended with Rayshard Brooks being shot in the back is the result of sociological and psychological factors: the stereotyping of African American men as criminals; the trauma and harm of lawlessness and systemic racism for 400 years experienced by African Americans; and in the last weeks, witnessed almost daily in the media, a law-and-order president who does not understand the absurdity and consequences of a policy to “dominate the streets with compassion,” the very notion of compassion being at odds with domination. When Colin Kaepernick took a knee to protest police brutality during the national anthem, that was compassion in action. Domination in action is the knee in the neck of George Floyd by police officer Derek Chauvin, and the shot in the back of Rayshard Brooks by police officer Garrett Rolfe. These actions are the result of the racist mindset of police who want to dominate. It is for that reason, the police's broken mentality, that there have been calls to defund the police as it currently exists, and to substitute for systemic violence a communal mentality of compassion, empathy and love. As Trevor Noah said, “People always say the same thing: ‘If you didn’t do that, you’d still be alive.’ They say this shit all the time. ‘If you didn’t do that.’ But the truth is, the ‘ifs’ keep on changing… There’s one common thread beyond all the ‘ifs.’ If you weren’t black, maybe you’d still be alive.” Sheltering in place, working remotely, removed from the tragedies engulfing my hometown of New York, and at the same time intimately connected to all these events, pondering them intellectually with words rolling over in my mind, I encountered the evening news on May 25, live-streaming the capture in handcuffs, the torture, and cold-blooded murder of an African American citizen, George Floyd, who 9 minutes before had been a beautiful human being. This was not an event I regarded intellectually. It was a traumatic and emotional experience that struck my soul, as if I had been watching from only ten feet away, complicit in not offering assistance. The image of a white police officer, hands in his pockets, in broad daylight on a public street, calmly torturing and killing George Floyd, is indelibly imprinted on my soul. As one commentator remarked, we witnessed the banality of evil, sanctioned by a system that had long countenanced it. A second terrifying image days later also struck at my very core, as a former youthful protestor in Washington DC, a former civil rights lawyer and constitutional law professor: the image of peaceful protestors in Washington DC being teargassed and pelted by rubber bullets by armed police wielding batons and shields, and attacked by mounted police, so that the President could have a photo op outside a DC church, holding a bible. To be silent is to be complicit. We are witnessing a perfect storm, but are no longer sheltered. (Some of us never were.) This is a time to reimagine our future as Americans, going forward together to build a just and inclusive society. This newsletter is a call to action. If you find it useful as a resource, pass it on. © Derrick Adams 2020 Derrick Adam's illustration above was born out of a collaboration with award-winning restaurateur, philanthropist and food activist Marcus Samuelsson, who shared the image on his Instagram, writing: The Black community is battling two pandemics right now — coronavirus and racism. My friend @derrickadamsny and I created Take 3 to act as a guide for keeping your head straight and pushing through. The steps we feel are most imperative are: MOURN - COVID-19 has killed Black folks 3x more than anyone else. Not only that, we continue to see race related killings and unjust police brutality. What we’re going through is a travesty. It’s extremely important that you give yourself time to grieve. REFLECT - Think about how we got here. Consider the 400+ years of injustice that lead us to this place. Lastly, think about how we all as people and as communities can create positive change for ourselves and our country. COMPASSION - Empathy and love for all people is a must, especially during these trying times. Think about what you can do for someone else — we have to be a positive influence for our family, our neighbors, and our community. We are watching American history right in front of our eyes. I’m so inspired by the diversity of all the peaceful protesters, the different ages, cultures, and backgrounds. It’s been incredible to watch the response on a global scale as well — thank you Stockholm, Paris, London, and others. If you can’t hit the streets, one of the most impactful things you can do is VOTE! You don’t want to be on the sidelines and tell your (future) children that you didn’t contribute. Just like Sam Cooke said, a change is gonna come. Please share this post and urge someone to Take 3 steps in order to stay well and keep going. What steps are you taking to push through during this time? Friends have asked me to link again to my February 2018 edition of The Art Lawyer's Diary, A Call to Action and an Opening, which was inspired by attending a screening of the film 13th by Ava DuVernay, and the opening that evening of Derrick's exhibition Sanctuary at the Museum of Arts and Design in January 2018. Derrick's work always presents a positive view of Black culture - in this case, leisure travel. The exhibition is inspired by The Green Book, which Derrick discovered at the Schomburg Center: "From 1936 to 1966, Victor Hugo Green, a postal worker who worked in New Jersey and lived in Harlem, published the directories known today as the Green Book. The books listed hotels, restaurants, beauty salons, nightclubs, bars, and gas stations where Black travelers would be welcome. In an age of sundown towns, segregation, and lynching, the Green Book became an indispensable tool for safe navigation." See History of the Green Book: Ways to Explore the Schomburg Center's Collection of Victor Hugo Green's Green Books. A brilliant conversation with Pulitzer Prize -winner Isabel Wilkerson organized by MAD discussing her book, The Warmth of Other Suns: The Epic Story of America's Great Migration, gave factual depth to the theme of Derrick's exhibition, and is a timely read for a deeper understanding of this moment. I look with anticipation to her forthcoming book Caste: The Origins of Our Discontents, scheduled for release in August, a study of the unspoken caste system that has shaped America and shows how our lives today are still defined by a hierarchy of human divisions. 13th is Ava DuVernay's powerful, not to be missed documentary, explaining how we got from the 13th amendment, which provides that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted," to mass incarceration by way of consistently branding African American men from its enactment to the present as criminals. According to 13th, the costumes for white supremacists in D.W. Griffith's 1915 Birth of a Nation inspired the garments of the Klu Klux Klan.

The digital release poster of Ava DuVernay's 2016 film 13th, available on Netflix.

Also not to miss is the timely docu-drama Just Mercy about injustice in the criminal justice system and the efforts of civil rights lawyer Bryan Stevenson, founder and Executive Director of the Equal Justice Initiative in Alabama, to defend Black Americans on death row. Stars Michael B. Jordan, Jamie Foxx, and Brie Larson. Streams free during June. Link from Letty Cottin Pogrebin's newsletter.

Law and Order is Not the Rule of Law

Our constitutional democracy is undergirded by three fundamental premises: (1) the rule of law, (2) an independent judiciary, and (3) one person, one vote. The rule of law is distinct from the concept of law and order. The rule of law is based on the tenet that no person is above the law. As DuVernay's 13th makes clear, law and order has been a frequent rallying cry to various degrees by numerous US presidents, beginning with Richard Nixon. Bill Clinton was not immune, and our current President has taken the abuse of the former, and advocacy ("dominate the streets with compassion") of the latter, to steroidal heights. Trump's law and order tactics are straight from Nixon's playbook, including his references to the "silent majority." 13th makes clear that mass incarceration and the prison-industrial complex are a direct result of "law and order" politics, which since Nixon have focused on legislation that has the effect of incarcerating Black Americans at a much higher rate than white Americans, and destroys communities on the false premise of law and order. One can also recall Kent State and Jackson State, and the protests of May 1970.

The Lawyers' Committee for Civil Rights Under Law is doing important work. On Monday I joined their webinar on "Police Reform Now: An Overview of New Federal Legislation to Reform and Overhaul Policing in Our Country." The Justice in Policing Act of 2020, introduced by the Congressional Black Caucus that day, is winding its way through Congress, and our elected representatives should be encouraged to support it. Subscribe to their email list to stay up to date with their continued conversation on equal justice and the vote. One of their most important programs, in which I have participated, is the Lawyers' Committee's Election Protection program, which works directly in the field to combat voter suppression at the polls. For example, to combat efforts of voter suppression by Republicans during the voting debacle in Georgia this week, the Lawyers' Committee went to court and secured an extension of poll hours in Gwinnett County. They sent pre-litigation demand letters to officials in Cobb, DeKalb, and Fulton Counties, threatening legal action if they did not extend poll hours. The 3 counties complied, resulting in longer hours for voters. Cobb County obtained a 1 hour extension for 40 polling places, DeKalb voters got a 2 ½ hours extension, and voters in Fulton County secured a 2 hour extension. Voting is a fundamental right, guaranteed to all by the Fourteenth and Fifteenth Amendments. Other rights also are under attack at this time. As essential as the right to vote are the rights to free speech, freedom of assembly, and free press, with their source in the First Amendment of the Constitution. In this vein of thought, I invite you to read Art Journal's 1991 issues Censorship I and Censorship II, which I co-edited with Robert Storr. See also the ABA Rule of Law Initiative.

Act to Support and Increase Voting, and Combat Voter Suppression I want to bring attention to the work of my friend, entertainment lawyer Laverne Berry, former president of New York Women in Film and Television. Berry is the producer of Capturing the Flag, an award-winning documentary film about voter suppression in North Carolina. "Capturing The Flag is an urgent cautionary tale that documents what’s in store for the fast approaching election of 2020, and a close-up look of American democracy at its most vulnerable point." Further voting resources that Laverne has provided to me:

The Untold History of America's Non-Voters
"Souls to the Polls" resource

Two other organizations that are important in terms of both voting activism and contributions are the Florida Rights Restoration Coalition, "committed to ending the disenfranchisement and discrimination against people with convictions, mostly African Americans," and One for Democracy, a collaboration between our country’s leading donors focused on defeating Donald Trump and strengthening our democracy. Desmond Meade, a formerly homeless returning citizen, overcame many obstacles to become the president of the Florida Rights Restoration Coalition. Mr. Meade led FRRC to a historical victory with the successful passage of Amendment 4, a grassroots initiative which restored voting rights to 1.4 million formerly incarcerated Floridians. Amendment 4 represented the single largest expansion of voting rights in the US in half a century, and brought an end to 150 years of a Jim Crow -era law in Florida. On May 24, FRRC celebrated a historic win after U.S. District Judge Robert Hinkle ruled in favor of Florida’s returning citizen community in a far-reaching ruling that creates a pathway to voting for hundreds of thousands of Florida citizens. Judge Hinkle ruled that SB 7066, a state law requiring returning citizens to pay all restitution, fines and fees before they are eligible to vote, is unconstitutional. Hundreds of thousands of returning citizens can now get immediate relief from the court and register to vote. It is imperative that we mobilize to vote. For New York voters - there is early voting for the ten days before both the primary and the general election. Find your polling location here from June 13 to June 23 for the primary election. If you are sheltering in place somewhere other than your registered address as a voter, so you did not receive your absentee ballot application, you can fill out an online application to receive your ballot by mail and have your ballot sent to you wherever you are. There is also a greater need for people to work the polls for both the primary and the general election, given that many of the retired people who often volunteer for that position are at high risk for COVID-19. If you are a low risk individual interested in that work, here is the city-wide application, and here is the state-wide application.

State of Affairs, 2020. © Chester Higgins Archives. All Rights Reserved. My friend Chester Higgins, an award-winning New York Times photographer, shared the above image with me. He writes: "for me, [this image] illustrates the State of Affairs where too often African Americans exist behind the borders of indifference and extensive hatred. Congress needs to pass laws that take away the immunity that police have for lethal force." You can find Chester Higgins' photography here.

"Omar Tate’s Honeysuckle pop-up project

is revolution in a takeout box"

Omar Tate, photograph by Clay Williams for the Inquirer.

In April's The Art Lawyer's Diary, I profiled Chef Omar Tate and his Honeysuckle project. This is what Chef Omar is presently up to, as recounted in an article in the Philadelphia Inquirer by Craig LaBan on June 5th. The revolution in a takeout box that is his Honeysuckle pop-up project out of South Philly Barbacoa last week was "a onetime-only menu, a four-course homage to his grandfather imbued with pit smoke and personal history... the taste of his culinary activism couldn’t have been more timely." In the article, Omar is quoting as stating: “Eventually the pot boils over and that’s what we’re seeing right now. The people are speaking, proving what I’ve always said to be true: The central message permeating Honeysuckle is that our existence alongside white supremacy has always been a confrontation, whether it’s joy, pain, or we’re being murdered. And it’s coming to a head.” Juneteenth (June 19th) is a holiday dating back to June 19, 1865, when the Emancipation Proclamation was read aloud to enslaved Black Americans in Texas. Texas was the last Confederate State to have the proclamation announced, which had come into effect on January 1, 1863. Juneteenth has been celebrated since 1866, and food has always been at the heart of Juneteenth celebrations. Last year I celebrated Juneteenth with Omar at the James Beard House in New York, along with other noted African American chefs Adrian Lipscombe, Joi Chevalier, David Thomas, Chris Williams, Enrika Williams and Shannon Mustipher. I have no doubt that Omar's celebration of Juneteenth this year, while respecting social distance, will have another striking manifestation, albeit without the shared intimacy of the James Beard House celebration. You can find his website here.

Omar Tate at the Juneteenth celebration at the James Beard House last year.

I am on the board of Performa, and urge you not to miss this Juneteenth live, Friday June 19^th at 12 pm EST, an Instagram live talk between artist Sanford Biggers and chief curator RoseLee Goldberg. A screening of Biggers' Performa 07 Commission, The Somethin' Suite, a live performance originally presented at The Box in 2007, and one of my many favorite Performa commissions, will follow. “The Somethin’ Suite was my way of going back into history and looking at the minstrel show—America’s first form of musical theater, a truly American form of live entertainment that later appeared in films like The Birth of a Nation and The Jazz Singer, but a form based on making a mockery of African Americans.”

The Looting of SoHo and the SoHo Artist Response

An artist-activist friend shared this image with me of a Frederick Douglass quotation she painted as part of the Art 2♥SoHo project, which brought together over 100 artists last weekend and this weekend to paint the boarded-up storefronts in SoHo. Maxi Cohen wrote of the project: "Over 100 artists showed up, from UNLOK artist Gordon Kindlon to a founder of the Guerrilla Girls to Bobbi Van sending artwork from Mexico. Painters included an 8-year-old spanning to a 78-year-old, from Egypt, Greece, China, Harlem, and Brooklyn, people of every color, artists from the neighborhood who were here since the early 70s to their children and grandchildren. People were so happy to have some relief painting and the images were all longings of the heart." See also the work of We Make America, a group composed of activist-artists committed to making artwork, banners and signs for marches, actions, and other projects. Tuning in to how artists are responding to this moment is a source of great inspiration. Live at Lincoln Center is doing amazing programming right now, tying present events to the history of the civil rights movement. See Freedom by Celisse, a song Celisse wrote in July 2016 following the deaths of Philando Castile and Alton Sterling, which remains a rallying cry to fight systemic injustice, and Soundtrack '63, a live, multimedia musical performance about the African-American experience in America. See also Asia Society's Diversity and Inclusion program. Click here to register directly.

Justice and Right Action in Field and Scientific Exploration

The morning of the same day of George Floyd's murder, a noted African American birder, Christian Cooper, who was birding in Central Park, asked a white woman, Amy Cooper, to leash her dog. Her reaction was to call the police and tell them that “there's an African American man threatening my life.” If Mr. Cooper hadn’t been filming the encounter, he might have been arrested. News coverage of this incident has expanded to encompass the extant conversation on birding while being Black. One resource on this topic is the book Black and Brown Faces in America's Wild Places by Dudley Edmondson (Adventure Publications, 2006). In the CNN article linked above, Corina Newsome, a biology graduate student at Georgia Southern University, is quoted as saying: “For far too long, Black people in the United States have been shown that outdoor exploration activities are not for us. Whether it be the way the media chooses to present who is the ‘outdoorsy’ type, or the racism Black people experience when we do explore the outdoors, as we saw recently in Central Park. Well, we’ve decided to change that narrative." Corina Newsome, with the organization BlackAFinSTEM, founded an inaugural "Black Birders Week" as part of the effort to change that narrative.

The Instinct to Explore Belongs to No Race

“The lure of the arctic is tugging at my heart. To me the trail is calling!

The old trail, the trail that is always new.”

- Matthew Henson

I have been a member of the Explorers Club since 1985, women having only been admitted since 1982. The original founding members in 1905, were noted Arctic explorers, all white and all male. A fellow member of the Explorers Club, my friend J.R. Harris, an African American former fortune-500 marketing executive and club member of 25 years, wrote an excellent memoir titled Way Out There: Adventures of a Wilderness Trekker, Mountaineers Books (2017). It is an account of his exploits while backpacking in some of the most rugged and remote places on earth. Prior to the pandemic, J.R. was retained as part of a U.S. Forest Service initiative, and traveled to North Carolina and Texas to interview African Americans and Hispanics about their experiences, or lack thereof, in spending time in national forests and other public lands. With this information he intends to develop a marketing and advertising plan to get more people of color, including children, into the great outdoors.

An issue of National Geographic, published in 2018, contains the headline “For Decades, Our Coverage Was Racist. To Rise Above Our Past, We Must Acknowledge It.” The editor states in her introduction to the edition: “until the 1970s, National Geographic all but ignored people of colour who lived in the United States – rarely acknowledging them beyond labourers or domestic workers – while picturing ‘natives’ elsewhere as exotics, famously and frequently unclothed, happy hunters, noble savages, every type of cliche.” Dr. Allen Counter, a friend from the Explorers Club, was a distinguished African American explorer and a fellow of the club who passed away in 2017. He received a 2013 Lowell Thomas Award, recognizing “the principle of justice and right action in field exploration." It took his personal efforts to reclaim the reputation of African American explorer Matthew Henson, who reached the North Pole with Robert Peary in 1909, but received little credit until Dr. Counter dedicated his field research to gaining recognition for him. Dr. Counter's book on Henson is North Pole Legacy: Black, White, and Eskimo (Invisible Cities Press, 1991).

Photo from Ebony Magzaine in 1947 of the explorer Matthew Henson speaking with members of the Explorers Club in conjunction with the release of his book Dark Companion in 1947.

His life is also explored in greater detail in the book The Adventure Gap by James Edward Mills, published in 2014 by the Mountaineers Books; incidentally, the same publisher as for J.R.'s memoir. See also this National Geographic article.

Dr. Counter, a professor of neurology at Harvard Medical School and inaugural director of the Harvard Foundation for Intercultural and Race Relations, successfully tracked down Henson’s descendants in Greenland, and succeeded in having Ronald Reagan authorize bringing them to New York and then to Boston to meet the Peary family. He then succeeded in having Henson’s tomb moved to Arlington National Cemetery, where he is now buried. Dr. Counter, right, with Anaukaq, second from right, at the grave of Anaukaq’s father, Matthew A. Henson, a black explorer on Robert E. Peary’s 1909 expedition to the North Pole, at Woodlawn Cemetery in the Bronx in June 1987. Photo by David Bookstaver, Associated Press

Matthew Henson’s grave in Arlington National Cemetery.

Matthew Henson was born in Maryland in 1866 to parents who were free people of color before the Civil War. He was born to explore. By some accounts, including his own, he was the first man to stand on the geographic North Pole. He and Robert Peary travelled together on seven voyages to the Arctic over a period of nearly 23 years. When they returned from their voyage to the North Pole, Peary was given the credit, and received the highest metal of the Explorers Club, the Explorers Medal, in 1914. Henson was not recognized or celebrated for decades, except in the African American community. He wrote his own account, The Negro at the North Pole published in 1912. In 1937, he was the first African American to be made a life member of The Explorers Club, and in 1948 he was elevated to the club's highest level of membership. In 1944, he was awarded the Peary Polar Expedition Medal, and received at the White House by Presidents Harry Truman and Dwight Eisenhower. In 2000 Henson was posthumously awarded the Hubbard Medal by the National Geographic Society, the same award which Peary had received in 1906. As a part of the ongoing conversation about race within the scientific and academic community, I recommend reading Neil deGrasse Tyson's recent essay, "Reflections on the Color of my Skin." Tyson was the first African American to receive the Explorers Medal in 2015.

In a time of re-imagining our future, that re-imagining needs to include our relationship to nature. No one more eloquently advocates for this necessity by observing the behavior of animals than author and biologist Carl Safina. In his book Becoming Wild: How Animal Cultures Raise Families, Create Beauty, and Achieve Peace (Henry Holt and Co.), published in April 2020, Carl observes the behavior of sperm whales, parrots, and chimpanzees. Carl, a MacArthur grant recipient and a neighbor from the East End, runs the Safina Center at Stony Brook University. Don't miss the republication of his review of the relevance of Moby Dick for our times, coming out in print this Sunday in the New York Times Book Review: Melville’s Whale Was a Warning We Failed to Heed. In the review, he writes: “Moby Dick is called a great American novel... Melville broke through American myopia... seeing civility in savages, savagery in the civilized and ruinous obedience to mad tyrants. Melville’s years on ships sowed what his biographer Newton Arvin called “a settled hatred of external authority... by the 1840s, having ventured half the world away from America, Melville cast a frigatebird-like perspective on the American character’s deepest congenital malignancy, then called Negrophobia. In the early 19th century, sperm whale hunting was never far from slave trading. Thomas Beale’s 1839 'The Natural History of the Sperm Whale' included this telling dedication to the British shipowner Thomas Sturge: 'Your character may be estimated by the incessant efforts you have made to liberate the Negro from the condition of the slave.'”

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It is the 50th anniversary of Toni Morrison's book The Bluest Eye, and Canios Bookstore is doing a discussion of the book over Zoom, co-sponsored by the Eastville Community Historical Society, which I have been attending and highly recommend. It is Friday, June 12 at 6 pm.

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A Non-Exhaustive List of Resources Organizations for Social Justice, Community Activism, Civil Rights, Police Reform: Black Lives Matter NAACP Legal Defense and Educational Fund American Civil Liberties Union Black Art Futures Fund Community Justice Exchange Color of Change Reclaim the Block Southern Poverty Law Center Eastville Historical Society Weeksville Heritage Center Black Visions Collective Push Black The Schomburg Center for Research in Black Culture Voting Rights Organizations: Fair Fight Florida Rights Restoration Coalition Lawyers' Committee for Civil Rights Under Law One for Democracy Acronym

A shoutout to my legal assistant, Hannah Story Brown, without whom this newsletter wouldn't be possible.