In December of 2008, LaConsay painted what she describes as, “a love letter to my neighborhood,” a sign that on one side said, “You Look Nice Today,” and was followed by a heart, and on the other side said, “I’m So Happy You’re Here,” followed by another heart. LaConsay explains that “It was a small gesture that I genuinely hoped would make my neighbors feel good.”

When LaConsay was alerted to their UNfair use and appropriation of her work, she emailed them and received this message in response: “We employ an independent team of over 100 designers. We can assure you that this design has not been influenced by your work and that no copyright has been infringed.”

I haven’t gone to law school, but I did survive “Law School for Visual Artists,” sponsored by the VLA. And based upon what I learned there, it looks as though H&M is guilty of copyright infringement. First, we should be clear that US law is such that the moment that an artist creates a work, it is copyrighted. There is no need to file any paperwork. So, in December of 2008, when LaConsay first painted the sign in Atlanta, she owned the copyright for that work.

And, it seems obvious that someone from the H&M design team saw LaConsay’s work. It’s improbable that two people would have independently  come up with such a similar design. And, in reading subsequent statements from H& M, they seem to admit that they may have been, “inspired” by her design, but believe that they did not copy it, because they slightly altered the font and the placement of the heart.

On H&M’s Facebook page, in response to many of LaConsay’s supporters’ postings, they first posted this: “We apologies if anyone should think we have copied, which has never been our intention and also not allowed. We have merely been inspired, after seeing many different varieties with different text messages, to create something similar in a different font, with the use of big and small brackets and the placement of the shaped heart. We are truly sorry if we have led someone to believe that we intentionally should have copied someone else’s creation.” (Grammatical errors in original posting)

So the issue of copyright infringement then hinges on the following:

1) The heart of the matter: is the new work transformative?

2) What is the purpose and character of the use? Educational? Commercial?

3) What is the effect on the market/ value of the copyrighted work?

In their Facebook post, H&M basically argued that by slightly changing the font, eliminating the period, and slightly moving the heart shape, they had transformed the work. I would argue that this is not enough to transform the work, and it’s obviously derivative. What’s more, they’re using their derivative design for commercial purpose. (One more strike against them). And finally, Tori LaConsay is an artist and DESIGNER. Her profile on Yatedo identifies her as “a freelance production manager, copywriter, illustrator, designer.” H&M’s product definitely negatively impacts her market. If she wants to print that design on apparel and household items, they’ve already done so, and sold it, so they’ve devalued her work, and cut into potential customers.

Later, on Facebook, H&M posted again, saying, “We are very sorry for our customer service team’s reply, it is very unfortunate and we apologize for it. We are in contact with LaConsay and will continue  the dialogue with her directly.” We’ll see what they offer her. I’ll be rooting for Tori.

Picasso's "Nude, Green Leaves and Bust" sold for a record $106.5 million on Tuesday

The recent record-setting price for Picasso’s “Nude, Green Leaves and Bust,” on Tuesday night at Christie’s has left the art world abuzz– questioning the method through which it was sold, and musing as to what this indicates about the state of the global economy and how that affects art sales. Indeed, Marc Porter, chairman of Christie’s America’s proclaimed, “I think the Picasso illustrates what has been true in good and bad economic times — the very best works of art continue to sell at a premium.” But that’s not true. What Porter should have said was that the BEST KNOWN works continue to sell at a premium. And this is bad news for artists and the economy, not to mention bad business sense on the part of art patrons.

The Two-Way, NPR’s news blog, asks readers, “When you hear about a huge amount of money being paid for a work of art, do you wish it had been spent on something else?” In fact, I do wish that the $106.5 million that was used to purchase this painting was spent on something else: more art, from contemporary, emerging artists, especially as support for new, public projects. This would be a far more culturally, economically and socially responsible way to spend such a large sum of cash.

$106.5 million could fund a lot of projects at various scales. This not only perpetuates artmaking, it also brings income to artists and their assistants (often other artists), who make up a large part of the self-employed/ freelancers/ entrepreneurs who are struggling most in the current economic climate. And artists need materials and tools to make works, so they funnel money back into the economy. We buy software, computers, electronics, cameras, reciprocating saws, wood, nails, bolts, paint, metal– the list goes on. (We also fuel the livelihood of art journalists, critics, gallerists and consultants, although they often seem to forget that.) This week, my collaborative partner and I each spent almost $300 on an Epson projector that we need for a project. We scavenge so that we can repurpose materials, but we also spend hundreds each month on supplies (paper, ink, hardware, books, building materials) and real estate (rent for a studio space).

Picasso is great, but Picasso is dead. He’s not using the money for anything, and, realistically, neither the Brody family nor Christie’s will re-invest as large a percentage of the money back into the economy as contemporary artists or arts organizations supporting new work would. What’s more, the Picasso auctioned was exhibited only once, in 1961. It’s been sold to an anonymous private collector. Who knows how many times, if ever, it will be available for the public to see again? Even if new works that are commissioned are ultimately not as artistically great or important as this Picasso painting, they will likely have a greater cultural value, especially if they are public works, or become a part of public collections.

Furthermore, a patron of new works stands a chance (although, truthfully still not a great one) on seeing a fiscal gain to his or her investments. However, work from Old Masters or “Modern Masters” like Picasso, rarely appreciate substantially in value. It’s already sold for millions; it’s unlikely that a new collector will be found who will spend significantly more than the high price that has already been paid– certainly not enough to offer a large return once the fees of consultants, auction houses, etc have been paid. But, a patron who purchases a new work from a relatively unknown artist, or lots of new works from lots of emerging artists, might find the NEXT Picasso. There’s the possibility that the work will appreciate exponentially.

So if you have a hundred million or so to spend on art, or even if you have significantly less, consider making a culturally significant, yet economically and societally responsible purchase– spend on something new.

Yesterday, Roberta Smith wrote about the proposed Whitney Expansion in the NY Times. The City Planning Commission just unanimously approved the proposed Whitney Downtown Expansion Project, which would create a new space for the museum in the city’s Meatpacking District, near the southern entrance of the Highline. The Whitney Board, concerned about financing, remains divided about the project.

But, one of the most complicating factors in play is the 2008 $131 million dollar donation from Leonard Lauder to the museum. This donation requires that the Whitney Museum of American Art not sell its current space on the Upper East Side for an undisclosed period of time. The new downtown Whitney  isn’t scheduled to break ground until 2014, but most are speculating that the museum will be required to operate two spaces for a period of time.

In her column, Smith seems (rightly) concerned about the space itself, arguing:

“A new downtown Whitney has to make art look good, make people feel good in it, inspire curators to do their best and give the place some kind of identity — a profile — the way Dia’s old building did. Which is to say that it doesn’t have to have tourist-attracting bells and whistles, as is the case with the Guggenheim (no disrespect intended). It just has to give people a breathtaking, vision-expanding experience of art. This is as much a matter of proportion, openness and light as square footage, as the old Dia proved repeatedly. Its spaces set a standard for display that seems to have been lost in Manhattan, and it was lost, again, because of trustee arrogance and administrative mismanagement that put too many of the Dia’s eggs in its Beacon, N.Y., basket.”

All of what Smith says is true. However, perhaps it’s more important to determine whether this is an additional space, or, in fact, a brand new Whitney. Based on Mr. Lauder’s past comments, I’m inclined to believe that the Whitney building on Madison Ave is here to stay for a while.  “Like so many architecture lovers,” he declared,  ”I believe the Whitney and the Breuer building are one.”

Additional locations for museums that are within the same city don’t have a particularly good success rate. The Guggenheim’s SoHo location ultimately didn’t last, and neither did the Whitney’s own Altria branch. (Although to be fair, that was because the Altria Group left New York City.) But the Whitney’s branch at 55 Water St also didn’t last. Neither did their space at the Federal Reserve Plaza. Their branch at the Equitable Center in Midtown did not survive either.

When the Whitney announced its plans for expansion in the Meatpacking district, it distinguished this project from the previous additional locations, as a “satellite” not a “branch,” and many speculated that the Whitney would ultimately relocate entirely to the new space. Now that it is apparent that this is not going to happen (at least not in the foreseeable future), it’s important that the Whitney create distinct identities for the two locations. They have the advantage that, unlike with their previous branches, they are building an entirely new space for this new location.What will compel someone to visit both Whitneys? How will they complement each other? What, besides their architecture, will be unique about each? This is something that MoMA and PS1, which MoMA partnered with in 2000, seem to struggle with, and, this will also be the Whitney’s challenge.

In its handbook, the Association of Art Museum Directors (AAMD) states:

It is unprofessional for a museum director to use his or her influence or position for personal gain. A director shall not deal in works of art or be party to the recommendation for purchase by museums or collectors of works of art in which the director has any undisclosed financial interest. The director shall not accept any commission or compromising gift from any seller or buyer of works of art.

If the director collects art, extraordinary discretion is required to assure that no conflict of interest arises between the director’s personal collecting activity and the concerns of the museum. If there is perception of a conflict, the museum’s governing board should be granted first option in acquiring for the museum the work or works in question. Gifts of works of art to the director by artists whose work is or may be shown or acquired by the museum can compromise the position of the director and of the institution and should be accepted only in special circumstances and with full disclosure. In such cases where there is the possibility of a perception of conflict of interest, the museum’s governing board must be granted first option to accept these gifts for the museum.

Jeffrey Deitch is plainly violating the code of ethics for museum directors. He is supposed to take care that there is no appearance of impropriety when merely COLLECTING art– selling it is off the table. And now, the SVA Continuing Education blog reports that Deitch’s inaugural exhibition at LA MOCA will be a survey of works made by or about blonde American women titled Gentleman Prefer Blondes, clearly another desperate, attention-grabbing gesture for the museum. I wonder how many of the artists whose work will be included comprise Deitch’s personal and/ or gallery collections…

It’s not your typical Barbara Kruger show– there is no white-on-red Futura Bold Oblique over black and white photography. Instead, the New York artist who was honored at the 51st Venice Biennale with a Golden Lion, uses video to explore contradictions and duality in the commonplace.

For The Artist is Present, the title piece of the Abramović retrospective, Marina Abramović sits in silence at a table in the middle of a large, taped off square. Viewers  may participate by entering the square, one at a time, and sitting silently across from her for whatever duration they choose. Abramović remains there every day that the museum is open, (six days a week), from the time the museum is open until the last visitor leaves, an exercise in meditation, in endurance, in control and perception of the passage of time. On March 27th, Liftig arrived at the museum dressed in a long blue dress, similar to the one that Abramović wears each day, with her long dark hair styled just as Abramović’s is. She was the first visitor in line, and she took her place across from the artist and remained there for the entire day.

Although I don’t doubt Liftig’s sincerity, I have trouble separating her from the masses who have been visiting the Tim Burton show dressed in the black and white stripes of Beetlejuice, or as Helena Bonham Carter, Johnny Depp or Winona Ryder characters. And in fact, several people have viewed the Abramović piece as an opportunity to create their own performances: one woman caused a stir when she sat down, removed her coat, and revealed that her shirt had two large holes cut out of it, so that Abramović was forced to stare at her breasts. Amir Baradan staged a four part performance that he titled The Other Artist is Present, in which he first appears in a long red dress similar to the artist’s and proposes marriage to her bodies of work. He then dons a series of canvas-veils with various messages. Next he chants in Arabic. Finally, he leaves the table, but also leaves his wallet on it, which the security guards remove and take to him. These interventions reduce Abramović’s performance to a challenge: they are an attempt to startle  the artist, perhaps to even temporarily break her performance– to move her to speak or stand (which she never has). Indeed, as I’ve watched Abramović sit across from viewers, I’ve cringed as I listened to parents explain to their children that “Yes. It’s a staring contest.” These interventions feel like that– who will blink first?

I said in my last post about the Abramović show, that the difference between performance art and theater is that in performance art, the blood is real. These interventions feel like theater. When curator Klaus Biesenbach spoke about The Artist is Present, he explained,”It’s an act of extreme generosity. You are completing the piece together with the artist on an equal basis.” Marina Abramović is present as herself, but these interventions fail because her counterpart-performers are present as characters. They aren’t genuinely giving. Thus, the artist as imitator fails as anything more than a stunt.

The American Association of Museums (AAM) has created a form letter that you may use to urge your senator to sign on to the Gillibrand Museum letter. Another form letter has been generated to encourage Congress to support the $50 million in funding for the IMLS. Use the online fields to enter your contact information, which will then select your senator/ representative’s name and address. You can then download (as an .rtf) and print the letter to mail or fax, or choose the email option to send your letter right away. You can edit and personalize your missive before sending.

Tonight, the reception for Rochelle Toner takes place at the Stella Elkins Tyler Gallery at Tyler School of Art.

Also check out Medium Resistance at the Ice Box in the Crane Arts Building, curated by Richard Hricko, Philip Glahn and Nick Kripal, three Tyler professors. The show explores contemporary works of print and craft that defy the traditional divisions of fine art vs artisanship.

The Widener Gallery at Moore College of Art also has a reception this evening.

Tomorrow afternoon, drop by the Morgan building at U Penn for the Common Press Open House letterpress celebration.

William Kentridge: 5 Themes at MoMA

A painter, draughtsman and printmaker for over twenty-five years, William Kentridge is most well-known his animations, which he began creating in the 1980’s.   In a process he refers to as “stone-age filmmaking,” he photographs charcoal drawings and collages as he gradually adjusts them by erasing and drawing more.  Thus, each new frame contains traces of the previous drawing, and new objects transform from earlier landscapes.  The result is an animation, or as the artist refers to it, a projected drawing. His works address apartheid, memory, the universal and the collective unconscious. This show, which travels from SFMOMA, explores five themes in Kentridge’s work from the 1980′s to the present, and includes his animations, drawings and prints.

Kiki Smith: Sojourn at The Brooklyn Museum

An eighteenth-century silk needlework by Prudence Punderson, The First, Second and Last Scene of Mortality, provided the inspiration for Kiki Smith’s installation at The Brooklyn Museum, which includes playful interventions in two of the adjacent eighteenth-century period rooms. The works– large drawings and prints on  Nepalese paper as well as paper sculptures– explore ideas of femininity, the body, ritual, and mortality.

This past week I saw the Marina Abramović show at MoMA.Thrice. (Once on Tuesday, for the opening, again on Friday, because I had the day off, and again with friends on Sunday.) Originally from Yugoslavia, and now based in New York, Abramović is one of the pioneers of performance art, and she continues to perform, long outlasting her peers of ordealism– Vito Acconci, Chris Burden, Bruce Nauman– who have ceased performing and moved onto other media. She uses the body and her body to explore ritual, endurance, state of consciousness, and the relationship between artist and audience.

The show begins on the second floor with the title piece, “The Artist is Present,” a performance in which Abramović sits in silence at a table in the middle of a large, taped off square. Viewers  may participate by entering the square, one at a time, and sitting silently across from her for whatever duration they choose. Abramović remains there every day that the museum is open, (six days a week), from the time the museum is open until the last visitor leaves, an exercise in meditation, in endurance, in control and perception of the passage of time.

Curatorially, I found the second part of the show, on the museum’s sixth floor, somewhat problematic. The galleries include archives of Abramović’s past performances in chronological order. Photographs, videos and objects– remnants of performances– are included in addition to reenactments of five pieces by other performers. In 2005, Abramović performed “Seven Easy Pieces” at the Guggenheim– reperformances of five significant works by others, and two of her own. The work addressed the inherent ephemeral quality of performance, and the difficulty that exists when attempting to archive it, but breaks with the “purist” view that the immediate nature of performance means that it should not be documented at all; instead she treats performance as one would treat a musical score. Abramović’s decision to have her own works reenacted is consistent with her message from this past work, and I am personally interested in the idea of archiving ephemera. However, I found it distracting to have these reperformances side by side with the videos and photographs of the original performances. It took away much of the power that comes with a live performance; often the performance is only thing in the room—the audience comes specifically to view it. But this was not the case here. Thus, the energy that is so much of what Abramović’s works are both about and rely on, was missing. I don’t object to the reperformances themselves, but I think that they would have been more powerful if they were separated from the relics of the original performances– in their own rooms, or even together in one room.

Additionally, I wondered why they chose to reenact “Nude with Skeleton” at all. In Abramović’s original performance, she lies nude, a skeleton draped across her body, rising and falling with her breath. A video at MoMA (the quality jarringly different, clearer, than the other video shown, perhaps because it’s on LCD screens rather than projected) shows her cleaning the original skeleton. But the skeleton used for the reperformance appears to be plastic, and upon inspection of the wall text, it’s revealed to be a “replica.” Why not go further? Why not replace the nude performer with a mannequin? The difference between performance art and theater is that in performance art, the blood is real. The reenactment of “Nude with Skeleton” was theater.

That said, go see “The Artist is Present.” Sit across from the artist and focus on your breathing, your consciousness, and on hers. Exchange energy. Look at archives from previous works. Watch the video of “Rest Energy,” in which Abramović grips a bow with the arrow pointing toward her, and ULAY, her partner and collaborator, holds the arrow to the bowstring with his fingers, and then they both lean back until the bowstring is taut and the arrow points at her heart, the sound of their breathing, further intensifying the experience. Look at the collection of seventy-two objects that Marina allowed audience members to use on her in “Rhythm 0,” which include wine, scissors, a whip, a single bullet, and a gun. Watch the “The Lovers: The Great Wall Walk” in which Abramovic and ULAY, collaborators, friends, and lovers from 1976-1988, each walk the entirety of the wall, starting at opposite ends of the wall, meeting in the middle and having an emotionally intense goodbye, after which they never saw each other again, until ULAY, now Frank Uwe Laysiepen, sat silently across from Abramović on the opening night of “The Artist is Present.”  Wow.