Grossman LLP | Prince’s Disavowal of Ivanka Trump Work Raises Questions About An Artist’s Role In Defining His Oeuvre
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  • Prince’s Disavowal of Ivanka Trump Work Raises Questions About An Artist’s Role In Defining His Oeuvre
    Richard Prince is no stranger to controversy; indeed, it’s arguably an essential element of his art.  We’ve written in recent years about several copyright infringement cases against Prince involving his practice of “appropriation” of others’ artworks as part of his own.

    But last week, Prince made waves for a very different reason.  In contrast to his usual style of putting his own name on artworks that copy or borrow heavily from other creators, he is now effectively trying to take his own name off one of his creations.  According to the New York Times, Prince, in protest against President-Elect Donald Trump, publicly announced that a 2014 work he had created for and sold to Trump’s daughter Ivanka was “fake,” tweeting, “This is not my work.  I did not make it.  I deny.  I denounce.  This fake art.”  He later followed up with another tweet: “Not a prank. It was sold to IvankaTrump & I was paid 36k on 11/14/2014. The money has been returned. SheNowOwnsAfake.”  He has said of the decision, “This should not B confused with aesthetics. This is not a gesture. This is an action. Something I have control over. A yesOrNo”.  These actions raise important questions concerning the contours of an artist’s ability to define his or her own body of work.

    Taking him at his word, Prince seems to be disavowing his authorship of a work that was previously considered undisputably authored by Richard Prince.  The work was part of Prince’s “New Portraits” series, meaning that, like others in the series (see our previous posts for more on “New Portraits”), the work’s basis is a screenshot of a photo and comments from someone else’s Instagram feed—here, a “selfie” taken by Ms. Trump while getting her hair done), which Prince printed on canvas.  Press reports indicate that the piece came about initially because an unnamed art advisor approached Prince with a request to create a work based on a photo from Ms. Trump’s Instagram feed; Prince apparently obliged and the resulting work became part of Ms. Trump’s considerable contemporary-art collection.  (She even thanked him for it.)  But now, Prince has explained of his disavowal, “It’s a way of me saying to them [the Trump family] I don’t want my work in your possession.”

    The Visual Artists Rights Act of 1990, which is part of federal copyright law, codifies certain “moral rights” regarding an artists’ creations, including, among other things, the right to prevent the use of his or her name as the author of an artwork “which he or she did not create,” as well as “in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”  See 17 U.S.C. § 106A.  But neither of those circumstances seems to apply here, at least not literally.  It’s difficult to see any colorable argument that Prince didn’t actually create the piece, given that Prince himself has explained how and why it came into existence.  And there is no serious charge that there has been any distortion, mutilation, or modification “of the work” itself, physically speaking; what has changed is Prince’s feelings about the work residing in the collection of its current owner.  (And, as another legal commentator has pointed out, courts would likely be loath to read VARA’s text in a non-literal manner, so as to hold that the work’s association with the Trumps and their politics had “modified” the work in a way that gives Prince the right to disavow it under VARA.)

    The situation has some key similarities to—and distinctions from—other recent authorship debates that have been in the art-world spotlight recently.  For example, because there has been no assertion that the Prince work has been physically altered, this fact likely places Prince’s disavowal in a different light, legally speaking, than artist Cady Noland’s recent decisions to disclaim at least two of her works that purportedly had been damaged or restored in ways that were unacceptable to her.

    In another example, this summer, we wrote about the strange case brought against famed artist Peter Doig by a plaintiff who owned a work the plaintiff believed had been painted by a teenage Doig in 1975; when Doig denied authoring the work, the owner sued the artist for destroying the work’s value, asserting that Doig really had painted the work but later denied doing so because he was embarrassed by it.  Doig eventually had to testify at trial to prove that the work could not have been executed by him and in fact was likely the work of another individual with a similar name.  The court’s ultimate ruling was a factual one—i.e., Doig did not paint the disputed work.  But the case raised the specter of a different question; what if Doig had painted the work as a teen, but later in life did not wish it to be considered part of his oeuvre?  Note that this is not a completely far-fetched hypothetical; artist Gerhard Richter has effectively disowned a segment of his early works and has caused them to be omitted from his catalogue raisonne.  Indeed, Prince himself has omitted from his biography his work prior to 1980, and prominent museum retrospectives have followed his lead in this post-hoc editing of his legacy.

    And still other artists have struggled with related issues regarding works that were literally created by their hand, but which were never intended to become part of their oeuvre.  What happens if such works reach the market anyway—for example, if they are plucked out of the trash and sold (a question at issue in a lawsuit that we recently filed against a New York gallery in connection with the sale of dozens Jasper Johns works that the artist had intended to be destroyed).

    Unsurprisingly, several commentators on the Prince/Trump situation have speculated about how Prince’s pronouncement might impact the work’s monetary value.  Prince himself told the New York Times that any effect on value was “not the point,” and that his goal was rather to convey his rejection of the Trumps.  But other observers have suggested that the controversy will not harm, and might even increase, the work’s monetary value.  Interestingly, still others have pointed out that Ivanka Trump may have gotten a bargain on the work in the first place; Prince says he received $36,000 for the work, but he reportedly sold other “New Portrait” pieces for six figures.

    It’s also been pointed out that, separate from the legal and financial ramifications of Prince’s statements, they are equally fascinating from an artistic and theoretical perspective.  One writer has mused that, in the context of appropriation art, which often hinges on an artist’s alchemical pronouncement that a given object is art, Prince is engaging in the reverse: a sort of un-pronouncement withdrawing a work’s status as art.  Another notes the irony of Prince calling one of his works “fake,” given that “[n]othing he does is entirely original” and his oeuvre is in some ways marked by a gamesmanship with fame and money, and “a relativist attitude to truth,” that arguably echo the president-elect’s own.

    At this writing, despite the fascinating issues raised by Prince’s rejection of the Ivanka Trump work, there is no actual litigation looming.  And a lawsuit seems unlikely, given that Prince is returning the purchase price of the work, meaning the Trump side of the transaction would have to proceed on a theory of relief that would entitle them to something more than what they initially paid.  But we’ll continue to keep tabs on the controversy, which, if nothing else, adds a new and complex element to the art world’s ongoing conversation about authenticity and authorship.