CAA News Today

CAA and the National Coalition Against Censorship have co-signed a letter calling for the New York City Parks Department not to adopt a proposed rule banning controversial art.

Alessandro G. Olivieri, General Counsel
NYC Department of Parks & Recreation
The Arsenal, Central Park
830 Fifth Avenue
New York, NY 10021

Re: Notice of Proposed Rule, Title 58, Ch. 2, �2-16

Dear Mr. Olivieri:

On behalf of the National Coalition Against Censorship, an alliance of fifty national nonprofit organizations united in defense of free expression, and the College Art Association, the largest national association of college and university art and art history professors, we are writing to express concern about the proposed new rules governing New York City’s Public Art Program, specifically the proposed ban on art that demonstrates a lack of proper respect for public morals or conduct or that includes material that is religious, political or sexual in nature. In our view, the proposed rule is constitutionally suspect and unsound as a matter of policy, and will inevitably invite litigation and generate more controversy than it will avoid.

As organizations that follow and address censorship-related complaints from around the country on a daily basis, we can attest to the fact that almost any work of art can be construed as being religious, political or sexual in nature. We have recorded numerous complaints against highly regarded, often classical, works of art, couched in just such language. Under this standard, New York would have been deprived of a large number of the public art works that have contributed to the vibrant culture of the city.

The vague language of the new rule creates the potential for arbitrary decision-making as to what might be political, sexual, or religious. For instance, the Maine Monument in Columbus Circle contains partial nudity that some consider sexual or �inappropriate�; the Freedom of Expression National Monument recently reinstalled in Foley Square can be seen as political in nature; Tom Otterness�s whimsical public sculptures frequently provide socioeconomic commentary. Even if such works are approved, the proposed rule would expose the Department to complaints and to requests to remove art that some view as incompatible with its guidelines.

Besides the practical problems it poses, the vague and overbroad language of the proposed rule raises a host of constitutional concerns. Squares, streets, and parks are arenas which the Supreme Court has called �quintessential public forums� that are �used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.� In such places, where the nation�s commitment to the First Amendment is revealed in practice, the Court has declared that �the rights of the State to limit expressive activity are sharply circumscribed.� Perry Education Assn. v. Perry Local Educators� Assn., 460 U.S. 37, 45 (1983).

The department�s proposed rule extends far beyond what the Supreme Court approved in Finley v. National Endowment for the Arts, 524 U.S. 569 (1998). In that case, the Court upheld the NEA�s consideration of �general standards of decency and respect for the diverse beliefs and values of the American public� as one criterion (among many) in making grants for the arts. Finley�s holding is limited to government funding for the arts, and nowhere does the decision authorize the exclusion of entire categories of expression. Indeed, the Court expressly rejected the notion that government can �leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints�. [E]ven in the provision of subsidies, the Government may not �ai[m] at the suppression of dangerous ideas� � (Id. At 587).

It is not our position that the City is precluded from establishing guidelines for the public display of art. What we object to is the clear indication in this proposal that the Parks Department intends to limit public art to that which is purely decorative and deemed �appropriate� for young children. Public art is a crucial part of civic discourse; the limits proposed would impoverish the cultural and intellectual vibrancy of New York�s public spaces.

Surely a city that is home to world-class cultural institutions and is a major capital of the art world would be an object of ridicule if this rule were implemented. And rightly so. Consider the kinds of works that would be off limits: Michelangelo�s David and Piet�, Rodin�s The Kiss, works by Diego Rivera and Picasso and by such contemporary artists like Maya Lin, Hans Haacke, William Kentridge, and Barbara Kruger.

We would be happy to work with your office, as we have with other communities around the country, to help craft a policy that would respect constitutional principles, provide clear guidance to artists and city officials, and strive to make the City a place filled with �accessible� and �appropriate� art. Please let us know how we can be of assistance.

Sincerely,

Joan E. Bertin, Executive Director, National Coalition Against Censorship
Susan Ball, Executive Director, College Art Association

The College Art Association is preparing to file formal comments with the U.S. Copyright Office in support of a proposal to alter the current copyright law to address the problem of "orphan works"— works that are still in copyright, but where the copyright holder cannot be found and the rights cleared.

Scholars and publishers working in 20th-century art are familiar with this problem: You want to publish a picture or quote a text; you are ready to clear permissions and pay any necessary fees, but you can’t find the artist or author, or an estate. What do you do?

CAA needs your anecdotes as soon as possible, detailing specific examples where you were unable to use material in your research or publication because you could not find the rights holder, or where you were obliged to publish without obtaining permission, after making every effort to find a rights holder. Your stories will be cited anonymously, without identifying information, and sources will be kept confidential.

Summary of the U.S. Copyright Office Initiative
The U.S. Copyright Office has begun a proceeding to seek information about "orphan works." Orphan works are works (images/photos, letters, books, works of art, and others) that are still formally protected by copyright, but where a potential user—scholar, teacher, artist, publisher or other person or institution—is unable to clear rights because a) there is no copyright information associated with the work; b) the information is inadequate or inaccurate; or c) attempts to contact possible rights holders have proved futile (no one at last known address; publisher out of business, no responses to letters, etc.). Examples of such orphan works might be unsourced/uncredited photographs in older books; foreign works without copyright information; unsigned works of art; and letters written by persons who died within the last seventy years but who left no (findable) heirs. For CAA members, the problems posed by orphan works can be considerable. The Copyright Office has recognized that there is some value in being able to use these works, even if rights cannot be cleared. The Copyright Office issued a Notice seeking information on the "orphan works" problem on January 26, 2005.

The problem of finding the holders of rights in orphan works has been exacerbated by the recent extension of the term of copyright, which has postponed the date on which certain older works would otherwise enter the public domain (usually if the author has died before 1923). However, the problem of orphan works is certainly not confined to older works; information accompanying far newer and even recent works may also be inadequate for a user today to find the rights holder.

What CAA Is Doing
The College Art Association, with many others (including libraries, museums, public-interest groups and associations), plans to file comments in response to this Notice. CAA will ask the Copyright Office to recognize the substantial problems posed for individual users, publishers, museums, libraries and others by their inability to clear rights in orphan works. As part of the proceeding, the Copyright Office will consider proposals for ways to improve this situation. These might include amending the copyright law to permit uses of orphan works without users being unduly fearful that rightful copyright owners might emerge to claim a copyright infringement. This is an opportunity for us to make our voices heard in Washington on how copyright affects us!