Freedom of Expression? Fair Use? Thank These Artists You’ve Probably Never Heard Of

The artists who paved the way for protections for copyright and more.

The offending Marc Morrell piece.
The offending Marc Morrell piece. Courtesy of the artist

Certain artists always get the lion’s share of attention for being great innovators. Pablo Picasso and Jackson Pollock, for instance. Other artists, sometimes the same artists, are lionized for how much money collectors will spend to own their work. Nothing new there. However, there may be a different group of artists who deserve their own separate pantheon—those who have made judicial, rather than art, history—for expanding artistic freedom and enabling other artists to create work without fear of prosecution.

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Freedom of Expression

Few people, for instance, have ever heard of Marc Morrel, a painter who now lives in the Netherlands. Yet it was this former marine’s 1966 exhibition at New York’s Stephen Radich gallery of sculptural assemblages composed of American flags and sections of a Nazi swastika, Vietcong flag, Soviet flag and a gas mask that resulted in an eight-year long odyssey through the courts, the result of a criminal charge of “casting contempt” on the U.S. flag. A conviction—actually, against the gallery owner—in 1967, which was upheld on appeal in 1970 and finally overturned in 1974, tested whether an artist’s freedom of expression should be limited “to insure preservation of the public peace,” in the words of the 1970 court ruling. Perhaps it took the end of the Vietnam War to settle the matter. Flag desecration laws, where enacted, have since been viewed as unconstitutional. Marc Morrel’s little remembered anti-Vietnam War display has led to far more powerful artworks involving the American flag. Kate Millett’s 1970 The American Dream Goes to Pot was denounced in the U.S. House of Representatives, and “Dread” Scott Tyler’s What Is the Proper Way to Display a U.S. Flag led to angry demonstration by members of the Veterans of Foreign Wars in 1990 outside the Art Institute of Chicago, but neither artist nor gallery owner has since been threatened with jail for expressing their ideas.

Another artist better known in the annals of case law than in art history is Tom Forsythe, a photographer in Utah who, starting in 1997, created a series of 78 images called “Food Chain Barbie” in which undressed Barbie dolls were depicted in a wide range of surreal, sometimes sexualized, positions. Some dolls, for instance, were laid out in a blender (Malted Barbie), in a fondue pot (Fondue a la Barbie) or wrapped in a tortilla with salsa on top (Barbie Enchiladas). When in 1999 toy company Mattel brought a lawsuit, charging copyright and trademark infringement, against the artist, Forsythe claimed in court papers that his work represented a critique of “the conventional beauty myth and the societal acceptance of women as objects because this is what Barbie embodies.” It took two courts and four years, but Forsythe was found to have produced parody (“However one may feel about his message—whether he is wrong or right, whether his methods are powerful or banal—his photographs parody Barbie and everything Mattel’s doll has come to signify,” the Appeals Court ruled in 2003), which is a protected “fair use” under the U.S. Copyright Law, and did not diminish the value of the Barbie doll for consumers. Additionally, Mattel’s demands and lawsuits were found by the appellate court to be “groundless and unreasonable,” obligating the company to pay the defendant’s legal fees and court costs.

Winning one’s legal expenses is rare, however. When the studio of San Francisco photographer Jock Sturges, whose work frequently depicts nude women and children, was raided by the FBI in 1990 on the basis of stopping pornography, the artist did not recover the more than $100,000 he spent on legal expenses even though a grand jury refused to bring an indictment.

Two sports artists, Rick Rush and Daniel Moore, also won legal battles for artistic freedom of expression against deep-pocketed behemoths, but the victories also were at great cost—more than $200,000 for each of them—and their ability to earn a living was diminished during their years of litigation. In 1988, Rick Rush painted The Masters of Augusta, which commemorated Tiger Woods’ victory at the Masters tournament the preceding year, collaging images of Woods with portraits of several former golf legends. Rush was sued by ETW (for Eldrick Tiger Woods) Corporation, the exclusive licensing agent for the golfer. ETW claimed that Tiger Woods’ name and face were trademarked and Rush had engaged in unfair competition (since other artists needed to pay a licensing fee), deceptive trade practices (since it would be assumed that the golfer had endorsed this representation) and violation of Woods’ right of publicity. In 2003, the U.S. Court of Appeals in Cleveland affirmed a district court ruling that Rush’s painting contained expressive and informational content, and that the final work is more than a mere likeness of the golfer. “[A]s a general rule, a person’s image or likeness cannot function as a trademark,” the district court declared.

Two years after the final Rick Rush ruling, the University of Alabama brought a lawsuit against artist Daniel Moore to prevent him from selling prints made from his paintings of the university’s Crimson Tide football team in action without first obtaining a license. The university accused the artist of trading on its name and the accomplishment of its football teams, further asserting that school logos and uniforms had attained trademark status, which could be protected by law. Moore asserted his right to paint subjects of his own choosing. In 2013, that right was affirmed, with an appellate judge ruling that a football game is a public event that an artist is free to depict just a journalist has a constitutional right to describe the game in a newspaper article. No licensing agreement is required. Further, the university could not claim as trademarked the team uniforms, writing that “[t]his court concludes that the depiction of the uniforms in the paintings is incidental to the purpose and expression of the paintings; that is, to artistically depict and preserve notable football plays in the history of University of Alabama football.”

Artists as Professionals (Not Lackeys)

Legal costs increase as a case becomes more protracted, as motions are filed and answered, meetings to resolve matters between hearings take place, leading to a trial in a district court, followed by an appellate court and, perhaps, even further (and then possibly sent back down to a lower court to resolve other matters, a process called “remand”). James Earl Reid, a Baltimore sculptor, took his contention that he, not the District of Columbia-based nonprofit organization that commissioned him in 1985 to create a statue depicting a homeless family (“Third World America”), was the sole owner of the artwork’s copyright all the way to the U.S. Supreme Court. The nonprofit claimed that it owned not only the sculpture itself but all rights to it, a source of potential financial revenues, stating in court papers that the artist acted under the direction of the organization in designing and creating the piece and so should be viewed as any other employee, rather than as an independent contractor. A district court sided with the organization, while the appellate court reversed the ruling, a decision the Supreme Court affirmed in 1988. Justice Thurgood Marshall wrote the majority opinion that the artist could in no way be viewed as an employee. “Reid supplied his own tools. He worked in his own studio in Baltimore, making daily supervision of his activities from Washington practicably impossible.” Furthermore, creating sculptures was not the regular business of the nonprofit. “Finally, CCNV did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds.” It took another four years for lower courts to award Reid damages.

Scott Hodes, a Chicago lawyer who has drafted commissioning agreements for both artists and government agencies, noted that since the Reid decision “contracts between artists and those commissioning them have become very specific about who owns what rights and what each side is permitted to do. Everyone has learned the lesson of Reid.”

The current Supreme Court decided in 2014 that it would not weigh in on the validity of appropriation art, thereby affirming an Appeals Court ruling involving the use of a French photographer’s copyrighted images by the painter Richard Prince was not a case of infringement but “fair use.” With the exception of five of the 30 paintings that Prince exhibited at New York’s Gagosian Gallery in 2008, the Supreme Court ended a five-year long battle in the courts even as the issue of what use artists may make with others’ images and what must be done by a second artist to make that use “transformative” is likely to be litigated in the future. At least for now, appropriation art has been deemed OK.

Defining who is an artist may be easier than determining what makes an artist a professional. Seriousness of intent? An art school degree? Membership in an artist association? Sales of art? Back in 1977, a precedent-setting decision was handed down with regard to a painter, Gloria Churchman, who had claimed business deductions of several hundred dollars in her tax filings in 1970 and 1971. For all of her 20-year career, Churchman’s income from art sales never had exceeded her losses, and the IRS also claimed that the artist was supported by her husband, a college professor. As a result, IRS auditors labeled Churchman a hobbyist and her deductions for art-related expenses were denied. However, the artist took her case to Tax Court, which found that Churchman pursued her art career “with a bona fide intention and expectation of making a profit” and the fact that she did not rely on sales of her artwork for her livelihood was irrelevant. Lack of income, the Court ruled, and “a history of losses is less persuasive in the art field than it might be in other fields because the archetypal ‘struggling artist’ must first achieve public acclaim before her serious work will command a price sufficient to provide her with a profit.”

The Churchman decision was cited by the Tax Court in a ruling last October when it overruled the contention of IRS auditors that Cambridge, New York painter and Hunter College art professor Susan Crile was a hobbyist because for most of her 30-plus year career she had spent more on her art materials and other expenses than she earned in sales. Over the years, Crile had received fellowships from the National Endowment for the Arts in 1982 and 1989. The Metropolitan Museum of Art purchased two of her paintings, as did the Hirshhorn Museum and Sculpture Garden and the Phillips Collection, and more than two dozen other museums have her works in their permanent collection. The Tax Court acknowledged that “[i]n a qualitative as well as a quantitative sense, we conclude that the balance of factors favors [Crile] and that she has met her burden of proving that in carrying on her activity as an artist, she had an actual and honest objective of making a profit. We therefore hold that she was…in the ‘trade or business’ of being an artist.”

Who Determines If an Object is a Work of Art?

As opposed to Marc Morrel and Gloria Churchman, Rumanian-born French sculptor Constantin Brancusi is a major figure in Modern art, and so is American photographer Edward Steichen. However, it was a 1923 work by Brancusi, Bird in Space, which was purchased in Paris in 1926 by Steichen and brought to the United States the following year, that became a precedent-setting case the year after that. Works of art are duty-free under U.S. law since 1922, but a customs official viewed Brancusi’s 50-inch abstract polished bronze as just a piece of metal and thus taxable at 40 percent of its $240 sales price. The Customs Court heard from a variety of expert witnesses, pro and con, finally ruling that “[t]he object now under consideration is shown to be for purely ornamental purposes, its use being the same as that of any piece of sculpture of the old masters.” Since that ruling, works of art that may not look like what anyone thinks art should look like have been brought into the U.S. without hassles from customs officials as long as both artist and buyer agree that the thing is a work of art.

Not everything has worked out as it should: In 2008, the London-based Haunch of Venison gallery purchased a group of six video installations by artist Bill Viola and a light sculpture by Dan Flavin from a gallery in New York, which shipped them to the United Kingdom. A British customs official opened the crates that contained the disassembled artworks and decided they were electrical appliances rather than art, As a result, the artworks were assessed a 20 percent value added tax of £36,000 (or $57,646). Haunch of Venison appealed to the European Commission’s Court of Justice, but the court decided in 2012 that the artworks should be classified as “projectors” and “wall light fittings,” since they only operated when one turns on a switch. Pierre Valentin, the lawyer in London who represented Haunch of Venison in its appeals of the U.K. Customs decision, recommended to those sending new media artworks to the European Union that they include in the crate some drawings of how the disassembled artwork is to be reassembled, as well as a certificate of authenticity from the artist, identifying the object is a work of art. “That might help,” he said, but he did not sound convinced. “The problem that occurred with these works by Flavin and Viola will happen again, I just don’t know when.”

Freedom of Expression? Fair Use? Thank These Artists You’ve Probably Never Heard Of