noland in Weinmayr 2019
— a status he
set out to challenge in the first place. Therefore Richard Prince’s ongoing
games[52](ch11.xhtml#footnote-474) might be entertaining or make us laugh, but
they stop short of effectively challenging the conceptualisation of
authorship, originality and property because they are assigned the very
properties that are denied to the authors whose works are copied. That is to
say, Prince’s performative toying with the law does not endanger his art’s
operability in the art world. On the contrary, it constructs and affirms his
reputation as a radical and saleable artist-author.
## De-Authoring
A very different approach to copyright law is demonstrated by American artist
Cady Noland, who employs the law to effectively endanger her art’s operability
in the art market. Noland is famously concerned with the circulation and
display of her work with respect to context, installation and photographic
representation. Relatedly, she has also become very critical of short-term
speculation on the art market. Noland has apparently not produced any new work
for over a decade, due to the time she now spends pursuing litigation around
her existing oeuvre.[53](ch11.xhtml#footnote-473) In 2011, she strikingly
demonstrated that an artist need not give up control when her work enters the
commercial art market and turns into a commodity for short-term profit. She
made probably one of the most important stands in modern art history when she
‘de-authored’ her work Cowboys Milking (1990), after it was put up for auction
at Sotheby’s with the consequence that the work could not be sold as a Cady
Noland work anymore.
Swiss-born dealer Marc Jancou, based in New York and Geneva, had consigned the
work to Sotheby’s a few months after having purchased it for $106,500 from a
private collector.[54](ch11.xhtml#footnote-472) Jancou was obviously attracted
by the fact that one of Noland’s works had achieved the highest price for a
piece by a living female artist: $6.6m.
At Noland’s request, on the eve of the auction, Sotheby’s abruptly withdrew
the piece, a silkscreen print on an aluminium panel. The artist argued that it
was damaged: ‘The current condition […] materially differs from that at the
time of its creation. […] [H]er honor and reputation [would] be prejudiced as
a result of offering [it] for sale with her name associated with
it.’[55](ch11.xhtml#footnote-471) From a legal point of view, this amounts to
a withdrawal of Noland’s authorship. The US Visual Artists Rights Act of 1990,
VARA, grants artists ‘authorship’ rights over works even after they have been
sold, including the right to prevent intentional modification and to forbid
the use of their name in association with distorted or mutilated
work.[56](ch11.xhtml#footnote-470) Such rights are based on the premise that
the integrity of a work needs to be guaranteed and a work of art has cultural
significance that extends beyond mere property
value.[57](ch11.xhtml#footnote-469)
Noland’s withdrawal of authorship left Jancou with ‘a Cady Noland’ in his
living room, but not on the market. In an email to Sotheby’s, he complained:
‘This is not serious! Why does an auction house ask the advise [sic] of an
artist that has no gallery representation and has a biased and radical
approach to the art market?’[58](ch11.xhtml#footnote-468) Given that Noland is
a long-standing and outspoken sceptic with respect to speculative dealing in
art, he somewhat naively wonders why she would be able to exercise this degree
of power over an artwork that had been entered into a system of commercial
exchange. His complaint had no effect. The piece remained withdrawn from the
auction and Jancou filed a lawsuit in February 2012 seeking $26 million in
damages from Sotheby’s.[59](ch11.xhtml#footnote-467)
From an economic perspective, both artists, Noland and Prince, illustrated
powerfully how authorship is instituted in the form of the artist’s signature,
to construct (Prince’s Catcher in the Rye) or destroy (Noland’s Cowboy
Milking) monetary value. Richard Prince’s stated intention is to double the
book’s price, and by attaching his name to Salinger’s book in a Duchampian
gesture, he turns it into a work of art authored and copyrighted by Prince.
Noland, on the contrary lowers the value of her artwork by removing her
signature and by asserting the artist-author’s (Noland) rights over the
dealer-owner’s (Jancou).[60](ch11.xhtml#footnote-466)
However, from a legal perspective I would argue that both Noland and Prince —
in their opposite approaches of removing and adding their signatures — affirm
authorship as it is conceptualised by the law.[61](ch11.xhtml#footnote-465)
After all ‘copyright law is a system to which the notion of the author appears
to be central — in defining the right owner, in defining the work, in defining
infringement.’[62](ch11.xhtml#footnote-464)
## Intellectual Property Obsession Running Amok?
Intellectual property — granted via copyright — has become one of the driving
forces of the creative economy, being exploited by corporations and
institutions of the so-called ‘creative industries’. In the governmental
imagination, creative workers are
d even establish perspectives by which a certain distance on the
naturalised world can be had.’[101](ch11.xhtml#footnote-425)
To create such a space for the critique of the naturalisation of authorship as
intellectual property was one of the aims of the Piracy Project: firstly by
understanding that there is always a choice through discovering and exploring
other cultures and nations dealing with (or deliberately suspending) Western
copyright, and secondly through the project’s collective practice itself.
## Collective Authorship, Institutional Framing
The collaborative mode and collectivity within the Piracy Project
differentiates its artistic strategy in principle from Prince’s or Noland’s
approaches, who both operate as individuals claiming individual authorship for
their work.
But how did the Piracy Project deal with the big authorship question? There
was an interesting shift here: when the project still operated within the art
college library, there was not much need for the articulation of authorship
because it was embedded in a community who contributed in many different ways.
Once the library was eventually shut after two years and the project was
hosted by art institutions, a demand for the definition and framing of
authorship arose.[102](ch11.xhtml#footnote-424) Here the relationship between
the individual and the collective requires constant and careful
negotiati
om’, in Andrea Francke and Eva Weinmayr (eds.),
Borrowing, Poaching, Plagiarising, Pirating, Stealing, Gleaning, Referencing,
Leaking, Copying, Imitating, Adapting, Faking, Paraphrasing, Quoting,
Reproducing, Using, Counterfeiting, Repeating, Translating, Cloning (London:
AND Publishing), pp. 91–133.
Biagioli, Mario (2014) ‘Plagiarism, Kinship and Slavery’, Theory Culture
Society 31.2/3, 65–91,
Buchloh, Benjamin (2009) ‘Pictures’, in David Evans (ed.), Appropriation,
Documents of Contemporary Art (London: Whitechapel Gallery), originally
published in October 8 (1979), 75–88.
Buskirk, Martha (9 December 2013) ‘Marc Jancou, Cady Noland, and the Case of
the Authorless Artwork’, Hyperallergic,
Butler, Judith (2001) ‘What is Critique? An Essay on Foucault’s Virtue’,
Transversal 5,
Cariou, Patrick (2009) Yes Rasta (New York: powerHouse Books).
Chan, Sewell (1 July 2009) ‘Judge Rules for J. D. Salinger in “Catcher”
Copyright Suit’, New York Times,
Coleman, Gabriella (2014) Hacker, Hoaxer, Whistleblower, Spy: The Many Faces
of Anonymous (London and New York: Verso).
Corbett, Rachel (14 November 2012) New York S
v Sotheby’s, Inc. (13 November 2012) New York State
Unified Court System, 2012 NY Slip Op 33163(U),
Mauk, Ben (2014) ‘Who Owns This Image?’, The New Yorker 12 February,
McLuhan, Marshall (1966) ‘Address at Vision 65’, American Scholar 35, 196–205.
Memory of the World,
Muñoz Sarmiento, Sergio and Lauren van Haaften-Schick (2013–2014) ‘Cariou v.
Prince: Toward a Theory of Aesthetic-Judicial Judgements’, in Texas A&M Law
Review, vol. 1.
Munro, Cait (10 November 2014) ‘Is Cady Noland More Difficult To Work With
Than Richard Prince?’, artNet news,
Myers, Julian (26 August 2009) Four Dialogues 2: On AAAARG, San Francisco
Museum of Modern Art — Open Space,
Nedelsky, Jennifer (1993) ’Reconceiving Rights as Relationship’, Review of
Constitutional Studies / Revue d’études constitutionnelles 1.1, 1–26,
Open Book Publishers Authors’ Guide,
Piracy Project C
logs.nytimes.com/2014/03/18
/richard-prince-settles-copyright-suit-with-patrick-cariou-over-
photographs/?_php=true&_type=blogs&_r=0)
[50](ch11.xhtml#footnote-476-backlink) Court opinion, p. 13.
[51](ch11.xhtml#footnote-475-backlink) Sollfrank, ‘Copyright Cowboys’.
[52](ch11.xhtml#footnote-474-backlink) In 2016 photographer Donald Graham
filed a lawsuit against Prince with regard to Prince’s use of Graham’s
Instagram pictures. Again, the image shows a photographic representation of
Rastafarians. And similar to the Cariou case Prince appropriates Graham’s and
Cariou’s cultural appropriation of Rastafarian culture.
[53](ch11.xhtml#footnote-473-backlink) Cait Munro quotes Cady Noland from
Sarah Thornton’s book 33 Artists in 3 Acts. Noland gave Thornton her first
interview for twenty-four years: ‘Noland, an extremely talented artist, has
become so obsessed with her old work that she’s been unable to create anything
new in years. She admits to Thornton that ‘I’d like to get into a studio and
start making work,’ but that tracking the old work has become a ‘full-time
thing’. Cait Munro, ‘Is Cady Noland More Difficult To Work With Than Richard
Prince?’, artNet news, 10 November 2014,
[54](ch11.xhtml#footnote-472-backlink) Martha Buskirk, ‘Marc Jancou, Cady
Noland, and the Case of the Authorless Artwork’, Hyperallergic, 9 December
2013,
an-authorless-artwork/>
[55](ch11.xhtml#footnote-471-backlink) Marc Jancou Fine Art Ltd. v Sotheby’s,
Inc., New York State Unified Court System, 2012 NY Slip Op 33163(U), 13
November 2012,
[56](ch1
to the
limitations set forth in section 113(d), shall have the right — (A) to prevent
any intentional distortion, mutilation, or other modification of that work
which would be prejudicial to his or her honor or reputation, and any
intentional distortion, mutilation, or modification of that work is a
violation of that right, and (B) to prevent any destruction of a work of
recognized stature, and any intentional or grossly negligent destruction of
that work is a violation of that right’, from US Code, Title 17, § 106A, Legal
Information Institute, Cornell Law School,
[57](ch11.xhtml#footnote-469-backlink) Buskirk, ‘Marc Jancou, Cady Noland’.
[58](ch11.xhtml#footnote-468-backlink) Ibid.
[59](ch11.xhtml#footnote-467-backlink) Jancou’s claim was dismissed by the New
York Supreme Court in the same year. The Court’s decision was based on the
language of Jancou’s consignment agreement with Sotheby’s, which gave
Sotheby’s the right to withdraw Cowboys Milking ‘at any time before the sale’
if, in Sotheby’s judgment, ‘there is doubt as to its authenticity or
attribution.’ Tracy Zwick, ‘Art in America’, 29 August 2013,
[60](ch11.xhtml#footnote-466-backlink) It might be important here to recall
that both Richard Prince and Cady Noland are able to afford the expensive
costs incurred by a court case due to their success in the art market.
[61](ch11.xhtml#footnote-465-backlink) The legal grounds for Noland’s move,
the federal Visual Artists Rights Act of 1990, is based on French moral rights
or author rights (droit d’auteur), which are inspired by the humanistic and
individualistic values of the French Revolution and form part of European
copyright law. They conceive the work as an intellectual and creative
expression that is directly connected to its creator. Legal scholar Lionel
Bently observes ‘the prominence of romantic conceptions of authorship’ in the
recognition of moral rights, which are based on concepts of the originality
and authenticity of the modern subject (Lionel Bently, ‘Copyright and the
Death of the Author in Literature and Law’, Modern Law Review, 57 (1994),
973
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