Cady Noland, Log Cabin (1990)
On July 18, 2017, the artist Cady Noland filed a copyright infringement action in the United States District Court for the Southern District of New York relating to her work Log Cabin (1990). The defendants are Wilhelm Schürmann, a German art collector, art advisor Chris D’Amelio, gallery owner Michael Janssen, and two galleries: Galerie Michael Janssen and KOW. A copy of the complaint is here. Noland's action is only the latest salvo in an ongoing dispute between Noland and Schürmann, as related by Artsy and Artnet.
In a nutshell, Schürmann purchased Log Cabin from Noland in 1990 for an undisclosed sum. In 1995, Schürmann loaned the work to the Suermondt-Ludwig-Museum in Aachen, Germany, which exhibited it outside, placed directly on the ground. In 2010, a conservator examined the work and determined that all of the wood was rotten and should be replaced. The work was recreated with new wooden parts, and the original wooden parts were discarded.
In July 2014, Galerie Michael Janssen sold the reconstructed work to Ohio art collector Scott Mueller for $1.4 million. Noland learned of the reconstruction and sale on July 18, and faxed a handwritten letter to Mueller stating, “This is not an artwork” because "THE ARTIST WASN’T CONSULTED.” The purchase agreement included a buyback option if Noland repudiated the work, which Mueller invoked, filing an action for breach of fiduciary duty, which was ultimately dismissed. Noland filed this copyright infringement action exactly three years after learning of the restoration, on the last day before the statute of limitations applied.
Noland's claims are interesting because they present fundamental questions about the ontology of copyrighted "works of authorship" and "copies," as well as integrity and attribution under the Copyright Act.
First, Noland claims that the Log Cabin sold to Mueller was an unauthorized reproduction of her copyrighted work of authorship, because all of the wooden parts - the overwhelming majority of the work - were replaced. There are two potential issues. For one thing, it is possible that Noland's work - or at least the reproduced elements of the work - are not protected by copyright at all. According to the Supreme Court, copyright can only protect "original" works of authorship, and "originality" requires both "independent creation" and "some degree" of "creativity." We can set the "creativity" requirement aside. As I've argued, it is irrelevant anyway. But Noland's may have trouble with independent creation, which provides that an element of a work is "original" only if it is "not copied" from a preexisting work. The "reproduced" element of Noland's work, by her own description, is the facade of a generic log cabin: "Log Cabin consists of wooden logs and other wood components assembled to look like the façade of a classic log cabin." If an element is generic or copied from elsewhere, it can't be protected by copyright, and therefore reproducing it can't be infringing. Of course, Noland removes elements common to most log cabins (e.g., everything but the facade), and the Second Circuit has held that removing elements of a public domain work can create an original work of authorship. But it isn't obvious that Noland's choices here necessarily qualify.
Moreover, Noland's claim runs up against the "first sale doctrine," which provides that copyright owners can't control the disposition of particular copies of a work of authorship after the initial sale of the copy. Under the Copyright Act, every fixation of an intangible "work of authorship" is a "copy," so even though Log Cabin is unique, Schürmann still purchased a "copy" for the purpose of the Copyright Act. Ownership of a copy of a work doesn't permit the owner to create additional reproductions of the work. But surely it permits owners of a copy to repair and restore their own copy.
Noland's infringement action literally presents a version of Theseus's Paradox: If every wooden part of a thing is replaced, is it still the same thing? In other words, is Schürmann entitled to own a copy of Log Cabin, or is he only entitled to own the particular copy Noland sold him, exactly as constituted? If any part can be repaired or replaced without infringing the reproduction right, how much can be repaired or replaced? Why not the entire copy? And if the entire copy can be replaced gradually, why not all at one? What if it had burned down.
But Noland makes an additional "integrity and attribution" claim under Section 106A of the Copyright Act, which was added by the Visual Artists Right Act of 1990 ("VARA"). VARA provides that "the author of a work of visual art— (1) shall have the right— (A) to claim authorship of that work, and (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create" and "(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation."
So, Noland claims a right to prevent attribution of the "restored" copy of Log Cabin to her, as it is not the "work" she created. There are certain weaknesses to her claim. For one, VARA provides for certain exceptions: "(1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification" and "(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification . . . unless the modification is caused by gross negligence."
The Copyright Act provides that a "work of visual art" is "a painting, drawing, print, or sculpture, existing in a single copy," but does not include "any work not subject to copyright protection under this title." So the question remains, is the protected "work of visual art" the intangible work of authorship embodied in a unique copy, or the unique copy itself? And how does the "restoration" of Log Cabin by replacing all of the wooden parts affect Noland's VARA rights?
Of course, whatever the courts say, the real question is how Noland's disavowal of the work affects its market value. If the court ultimately says that she can prevent formal attribution of the work to herself, it doesn't change the facts of what happened. Will the art market still value the work, as embodied in Schürmann's restoration? And if the court says that Section 106A does not apply and Noland cannot prevent attribution of the work, it won't change the fact that she repudiated it. Will the market follow the court? I suspect there is good reason to think it may not.
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