The Barnes Foundation and Ownership: Outsmarting Albert Barnes

James Panero sets forth the historical detail on Albert Barnes and his foundation, much discussed on this blog, in his article Outstmarting Albert Barnes:

All in all, the same brilliance that created a legacy for Albert Barnes would ultimately undo his legacy. Since the time of Barnes’ death in an automobile accident in 1951, the Barnes Foundation has been a case study in how an institution, created by a brilliant mind with clear intentions, can become irrevocably damaged through overly restrictive operating guidelines, unanticipated leadership problems, and the competing missions of other organizations and institutions. Much attention has been paid to the forces at work against the foundation, but in fact the seeds of destruction were sown by the hands of Barnes himself. As history has proven, decisions he made in life imperiled the perpetuity of his collection after death.

Barnes made every effort to preserve the vision of his creation after his death. For the past 60 years, what we have seen at the Barnes is what Barnes put there himself. At this moment, however, Barnes’ art collection is being removed forever from the walls he built for it. Barnes knew he was creating something unique in the annals of American art. He was also right that outside forces would emerge to alter his project after his death. What he never anticipated was that the very defenses he put in place to preserve his collection would eventually contribute to its undoing.

I can’t help but feel that part of the problem in the Barnes Foundation dispute was the way we glorify ownership. As Panero reports, Julian Bond, the son of Barnes compatriot and Lincoln president Horace Mann Bond, expresses the view of those who opposed the move of the Barnes Foundation collection to urban Philadelphia by stating: “The art belonged to him. He had the right to do with it as he chose, and these people, these vandals, stepped in and took it away from him.”

But do we really want someone controlling the fate of $30 billion of art (much of it bought from desperate sellers during the Depression) 60 years after his death pursuant to instructions that make no sense at all if one is concerned about the art as culture?

Who owns Franz Kafka’s papers?

I’ve written before about my skepticism over allowing the dead to exert control over the living to a sufficient degree that we the living are deprived of cultural riches. And just last week I discussed this point with a student in connection with copyright. She expressed disappointment in Douglas Adams’ posthumously published work and wondered whether it wouldn’t have been better for him if nothing he hadn’t authorized for publication had been published. I explained that I don’t think it affects Douglas Adams, a dead man, one bit whether or not stuff he didn’t want published is published but that it might affect us a great deal. Not being the greatest fan of Adams, I brought up Franz Kafka, who legendarily told his friend Max Brod to burn his papers upon his death. Brod, of course, ignored the request. It seems to me it would’ve been an undeniable tragedy if instead Brod had obeyed his friends wishes.

My real point — and the point that drives a lot of what I write on this blog — is that we confuse things and act to our cultural detriment when we treat intellectual “property” like we treat real property. And that confusion of course extends to the ways we give dead people continued influence over their intellectual and artistic creations. So it seems serendipitous that in this coming Sunday’s New York Times Magazine Elif Bautman has an article about the ongoing legal battle in the Israeli courts over the fate of Franz Kafka’s personal papers.

Bautman asks precisely what I would:

The situation has repeatedly been called Kafkaesque, reflecting, perhaps, the strangeness of the idea that Kafka can be anyone’s private property. Isn’t that what Brod demonstrated, when he disregarded Kafka’s last testament: that Kafka’s works weren’t even Kafka’s private property but, rather, belonged to humanity?

But Eva Hoffe and Ruth Wiesler, the daughters of Max Brod’s secretary and presumed lover, are claiming that Kafka’s paper are their property and that they should be permitted to sell them. They are being opposed by the National Library of Israel, which is claiming a right to the papers under Brod’s will. Brod brought the papers along with him when he emigrated to Palestine after Kafka’s death.

It’s an interesting legal case — there are Brod’s inconsistencies, including words that indicate he meant to convey the papers to public authorities in Israel and actions that might seem to indicate otherwise; the eccentric daughters of Brod’s secretary/lover, the more important of whom in this battle seems to fit the caricature of a batty old cat lady; and, of course, the overarching presence of Kafka himself, over whose legacy this kind of legal battle seems, in retrospect, well . . . almost inevitable.

As one Israeli writer interviewed in the story explains:

If Brod could see what was happening now, . . . he would be horrified.” Kafka, on the other hand, might be O.K. with it: “The next best thing to having your stuff burned, if you’re ambivalent, is giving it to some guy who gives it to some lady who gives it to her daughters who keep it in an apartment full of cats, right?”

RIP Ian Macneil: a lawyer, law professor, landlord, and mensch.

From the Times of London, the obituary of Ian Macneil, a lawyer, law professor, and landlord who embodied the ideal that ownership may be more about proprietorship than about sucking every last dollar (or pound) out of your property:

Ian Macneil, 46th chief of the Clan Macneil and 26th Macneil of Barra, was a much-respected American-born contract lawyer who gave his tenants and neighbours on the Outer Hebridean island of Barra security of tenure on the most favourable contract terms imaginable.

As one of the world’s leading scholars in the field of contract law Macneil was particularly associated with the invention, development and exposition of “relational contract theory”, which posits that all contracts belong in the context of complex webs of exchange relations.

As laird of Barra, though, he was so popular a landlord that when he first offered the islanders part of his island estate for a nominal sum in 1981 they declined, saying they were quite happy and saw no need for change.

In 2003 he did transfer his 9,000 acres in the southern half of Barra into public ownership on condition that the islanders could choose, at any time, to take over the land themselves without cost. Macneil, who was at that time 74, said he was giving up the property because running a crofting estate was a time-consuming business and he was “beginning to slow down”.

He expressed confidence that the Scottish Executive’s Rural Affairs Department would run the property in the crofters’ best interests, but ensured that if the islanders, many of them Gaelic-speaking, ever chose to take over the islands they would be given both Barra and its neighbour, Vatersay, without charge. The islands were, in effect, put in trust for their inhabitants. . . .

One other incident stands out from his professional career: in 1988, while on a visiting professorship at Harvard, Macneil taught the young Barack Obama, and was so impressed that he told his wife he thought he might have America’s first black President in his class. Macneil was invited to President Obama’s inauguration in Washingtonlast year but was unable to attend because of failing health.

From his father’s death in 1970 Macneil was much involved in Barra, running the estate, arguing for the interests of the island’s fishermen and crofters, and protecting the island’s air service from proposed cuts. His father had restored the ruined family seat, Kisimul Castle in Barra, but in 2000 Macneil, who had a home in Edinburgh and occupied a croft on Barra, donated the castle, which is now run by Historic Scotland, to the nation for a peppercorn rent of a bottle of malt whisky and £1 a year. It was a typically practical gesture by a notably kind and learned man

Photographing public art: a persistent fair use problem

I have a friend, a sculptor, who has sold several of his pieces as public art. He laughs at the idea that he could somehow recover more money than he has already received for any use the public makes of his sculptures. And he’ll soon be a lawyer. The way he figures it, he’s sold unlimited public use of the art for whatever uses the public will make of it — even money-making uses.

But his view is a generous one. Often the creators of public art will pursue anyone who uses images of their public art under the copyright laws. To my mind, it’s one more of an infinite  number of  manifestations of our collective obsession with converting everything we can into a marketable commodity. Nevertheless, the efforts of artists to restrict others from making and using images of their public art is far from frivolous. Donn Zaretsky and I had a couple of go rounds last year in connection with the use on a postage stamp of a photograph of the Korean War Veterans Memorial in Washington, D.C. I am still convinced that the postage stamp in that case makes fair use of the image of the memorial, but we’ll have to wait and see whether my conviction that it isn’t even a close case is vindicated.

But now from the Citizens Media Law Project comes word of a similar, and perhaps more difficult, case, from Seattle, where photographer Mike Hipple is being sued by sculptor Jack Mackie over the photo Hipple took about 10 years ago of a woman standing near the “Dance Steps on Broadway” sculpture in Seattle’s Capitol Hill. As the Citizens Media Law Project explains:

The lawsuit has outraged scores of residents who find Mackie to be out of step with the public’s interest. Mackie installed the eight sets of inlaid bronze shoe prints, mapping out well-known dances such as the waltz and rumba, in 1982 when the city rebuilt the neighborhood’s sidewalks. Despite receiving public financing for the project, Mackie retained rights to the artwork. Those rights, according to § 106 of the U.S. Copyright Act, include the exclusive right to reproduce the work or to create derivative work from it.

Finally, I agree with the following sentiments: “any scheme that involves paying to photograph seems antithetical to the public interest. The most reasonable solution is to keep public artwork completely open to the public. Until cities do this, however, commercial photographers may want to think twice about incorporating public artwork into their photographs.”

Nevertheless, I also agree with Hipple that the photo constitutes fair use of the sculptures image? Why? Because the photo stands on its own as a creative work. Hipple has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions. I don’t know how often I can say it: art builds on art. Culture builds on culture. And the sooner we ease up on our madness to monetize everything the sooner we’ll be sane.