Copy Right - Copy Wrong

My latest project presented me with a tremendously important question I'd never asked myself or anyone else:

It's clear that when an artist is alive, he or she has the right to choose in which exhibitions to participate, at least when the works on display still belong to him.

But what will happen when a collector lends a certain piece to be included in an exhibition?

Furthermore, what happens with these decisions when the artist is no longer living and therefore unable to pass judgement and make decisions on the projects presented to him?

Who decides whether it is a good idea, that it makes sense to participate in a certain exhibition and not in another one?

This is what happened:

1. I was approached by the Spanish Cooperation Centre in Cartagena to curate an exhibition. Notice was really short. I only had a couple of months to put it all together.

2. I chose to work with Adriana Marmorek (http://www.marmorek.org/esp/inicio.html). I've had a long, fruitful artist - curator relationship with her, and it made sense to me to work with an artist who has dealt with desire from a feminine, heterosexual (but not feminist and militant) viewpoint and exhibit her at a venue that used to be the closed residence of catholic priests.

3. I was informed that the policy of the Centre is to never have solo shows. That generated the conundrum of finding artists who could establish a coherent dialogue with Adriana's work. After a few weeks of thinking hard and literally going through every single catalogue in my library I chose to work with Feliza Bursztyn. She is one of the most important Colombian conceptual artists, but she died in 1982 while at lunch with Gabriel García Márquez; with a brilliant artistic carreer still ahead of her. I came to the conclusion that they are both insular figures in dealing with the subject of desire from that viewpoint and that their work resonates in quite amazing ways, both conceptually and formally.

4. I found the e-mail address of Feliza's widow. I e-mailed him. Described the project. Sent a link to Adriana's portfolio. I sent my brief CV.

5. He e-mailed me back. He said: "Congratulations on your CV. I have a lot going on and don't have time to help you right now. Good luck with your work".

6. I got on with my work. After all, he'd wished me luck. I got two public museums (Museo de Arte Moderno de Bogot'a - MaMBo and Museo de Arte Moderno de Cali, La Tertulia)  to lend me works. In fact, they lent me the most representative work Feliza ever did that dealt with desire and sex openly and clearly. They lent me two of her Beds.

7. I relied in the impeccable logistical coordination of Isabel Ramirez. The works arrived in Cartagena, in pristine crates and perfect packaging, on the afternoon of Friday April 30th.

8. Just before I left my office that afternoon I got a panicked call from Isabel's assistant, telling me that Pablo Leyva, Feliza's widow had called her and treated her quite rudely. He claimed to deny permission to use the artist's name and to use any images of her work. He said they should be thankful it was him and not his lawyer ringing. The phone call came with an e-mail to the Centre's director reiteraiting both claims.

9. Adriana and I arrived in Cartagena on Sunday evening, prepared to begin the set - up process on Monday May 3rd. Just before that I was asked to reply to Pablo Leyva on behalf of the centre. I left him a voice message on the mobile phone he didn't answer, and I sent an e-mail he didn't answer either. I just asked him to elaborate on the reasons of his claim.

10. We ran it all through a copyright lawyer. She explained several things we knew (that we are legally obligated to mention the names of all the artists in the exhibition and that the person or institution owning photographic material must authorize its reproduction in printed media). But she also mentioned things we didn't know (that moral rights are untransferable, that images used for press and communications are exempt of having to attain permissions, that works presented for educational purposes and educational institutions limits the application of copyright restrictions).

11. Having received an e-mail from MaMBo authorizing us to print and publish the only photograph we had in our catalogue, I rang the museum to inform them of the situation. Even though there were no issues with La Tertulia, we also let them know about those recent events.

12. The person at the museum who had sent us the written authorization mentioned that he has known Pablo Leyva for decades and he'd call and convince him of granting permission to publish the work's image.

13. The day before the opening I got a call from MamBo. They had in fact talked to Pablo Leyva and he had said that he'd always openly manifested his opposition to the project (which is fctually incorrect), and that he would not authorize the exhibition to be successful. The museum's director and curator met and decided, at that late moment and after insurance, transportation, conservation and set - up costs had been incurred into, to withdraw the loan.

14. Moments later the Centre received an e-mail from Pablo Leyva saying that the museum had called him to ask him whether he had authorized the exhibition (which is not what the person at the museum vowed to do) and saying once again that he would not authorize the use of Feliza's name or any images of her work.

15. The reaction of the other museum was quite the opposite: They communicated their firm intention of keeping the work on display and their belief in the project.

16. I made the curatorial decision to re-pack the work and exhibit the crate in its stead. However, the Centre's direction acquiesced to Leyva's claims. All the places where Feliza's name appears in the exhibition space are crossed out with a black line, and inasmuch as they decided to still exhibit the withdrawn work, they chose to do so outside of the exhibition space. This was made possible because the museum didn't formally communicate the withdrawal. The Centre's decision is to charge them for all expenses incurred into if this happens.

So: by all means, it's not an easy debate to solve. Feliza donated the work directly to MamBo at a time when it wasn't common practice to leave a written piece of paper describing the conditions under which the donation is made. It's no surprise; after all, this is only begining to become common practice today.

However, Colombian law states that moral rights are intransferable. Moral rights are the rights of any artist to decide what to do, where to exhibit, how to sell or promote their work. If we want to be legally strict, Pablo Leyva has no right to veto the exhibition of works by his dead artist wife. Those rights died with her. They will be forever hers and it is now the decisions are up to the people and institutions who own her works.

The plot thickens: Feliza Bursztyn had three daughters from a previous marriage. Patrimonial rights (the rights to earn money from artwork done) are inherited by genealogical inheritance, not by marital contracts. This means that the ones entitled to Feliza's patrimony are her daughters, not her widow.

Although we could distribute images of her work in the press, we thought we were in a fix as far as the photograph in the catalogue went. We were right to ask for the Museum's permission. They commissioned for the photo to be taken, and therefore we should credit them (as we did). However, we initially thought we also needed the heir's permission. Feliza's daughters are unavailable, living abroad. By default, the person who has been in charge of managing her work has been Pablo Leyva. It's therefore not shocking to learn that since 1982, when she died, her work has been showcased in just 8 group exhibitions (at an average of a work being exhibited just over every three years, but it's important to mention that there was only one exhibition in the 90s) and only 1 solo show (not surprisingly, organized by a group of three curators, including Pablo Leyva's son). I don't want to entirely dismiss this, I now think we need to revise the whole issue because the Spanish Cooperation Centre in Cartagena is devoted to educational promotion and this is one of the circumstances that limits the application of copyright law. I would presume that acting within an educational environment we could therefore promote Feliza's work freely, images included. But I think this is a veredict better emmited by a copyright lawyer.

There is no debate in Colombian and Latin American art circles about the crucial importance of Feliza Bursztyn for the development of contemporary Colombian art. She was a bold, irreverent and highly innovative artist. She pushed boundaries, made fun of the conservative, right - wing colombian society where she lived and worked. The tragedy here is not only that she died so young, but also that her work has been consistently silenced and has therefore been ostensibly absent from the exhibition, promotion, study and consideration of the very important work done by her generation. I guess the most visible contrasting figure would be Marta Traba, the Argentine critic who had the power to sink the careers of several artists but who proved pivotal at studying and promoting the generation of artists Feliza herself was a part of. Traba's work still continues to be published, revisited, studied and read. She is therefore still very much a living figure in Latin American contemporary culture, despite having died just a year after Feliza. 

Another string of questions arise from the whole situation: What kind of credentials does Pablo Leyva have in order to authorize or not the reproduction of images of Feliza's work? Does he have a will, a power of attorney given to him by Feliza's daughters to allow him to do this? These are merely practical questions. I of course imagine Feliza's work is a deeply personal matter to him (and this is something I truly respect), but shouldn't he at least be able to demonstrate his legal ability to action, especially if his intention is to hinder the artistic and cultural promotion and understanding of her work? Has anyone ever asked him to present such documentation?

Done with pragmatics, over to more philosophical questions:

If a cultural institution, such as the Spanish Cooperation Centre hires a curator and specifically commissions an exhibition for them to make, it must surely mean they trust their criteria and ability to do so. Furthermore, two of the most important museums in Colombia, adviced by their professional staff, made an informed decision to lend their works to the project.  How come does someone, alien not only to the art world, but also to the institutional sphere engaged in the production of the project, have the power to intimidate a museum's professional team and become an obstacle in its success? By the number of exhibitions of Feliza's work held in the last 28 years I will assume (and will not be shy at apologizing if my assumption turns out to be wrong) that this is not the first time this happens.

Furthermore, if this can and in fact does happen, couldn't the opposite also happen? Couldn't just someone, anyone, present a written consent for the exhibition to be held? Neither of them will have documentation that contradicts or supports their actions. What would the difference be?

Let's assume that he does have these following rights (propperly documented on paper, signed by Feliza):
- To prohibit the use of her name (technically, that would mean needing to ask his permission for having this discussion)
- To prohibit the reproduction of images of her work, even in non - commercial and educational shperes
- To veto and approve the circumstances where her work can and cannot be promoted and exhibited,

Shouldn't we be taking a really careful look at how we have written our copyright law? Aren't wee condemning artists to oblivion if this is how things were to done?

Again, I will make a conclusion based on assumptions. Let's assume that Pablo Leyva's aim is to preserve the memory and honour the importance of Feliza Bursztyn's work in Colombian art. Wouldn't this be better achieved by fostering its promotion, exhibition and study?

Then, let's assume that maybe he's not motivated by such altruistic intentions, but that he wants financial benefit out of Feliza's work. According to the normal behaviour of the art market, prices of works of art by a given artist will increase proportionally to the artist's recognition and visibility in the art world. Shouldn't he then be able to see that it's a much better option to help promote Feliza's work than to prohibit its exhibition?

Although he never says so himself in his e-mails and I didn't hear it in so many words from MaMBo, I understand Pablo Leyva feels uncomfortable with the subject matter of the exhibition. When Feliza first exhibited her Beds at the MaMBo in 1974 (yes, the same MaMBo that two weeks ago withdrew the same Bed from the exhibition) there were two debates motivated by her exhibition: one, between Marta Traba and Alvaro Medina (Medina claimed that the work was not original and that she had copied the idea from an artist from the United States and Traba defended her); another, about its sexual references, was not present in the pages of newspapers and magazines but in the lips of the colombian conservatives who saw the exhibition. I imagine that Feliza just laughed these considerations off. After all, it wasn't meant to be a serious dissertation about sex and desire. It was meant to be fun.

What's ironic is not that her work could easily be written off to censorship at the time, but that it is now being subjected to the same kind of censorship by the person she chose to be a partner in life (and to her, life and art were one and the same thing).

I've tried to analyze the situation from Leyva's viewpoint. The best conclusion I can reach is that he thinks that studying Feliza's work through her comments on sex and desire will morally harm her work. What I mean by this is that her work could be treated less seriously, lose art market value, become less interesting for art critics and theorists to write about or become less interesting for curators to work with. The other option is that he has dismissed Adriana Marmorek's work as irrelevant.

The day after the exhibition opened, El Universal, one of the most important newspapers in Cartagena published a review. It said that "Feliza Bursztyn's work acquire a new, contemporary dimension, through being presented alongside Adriana Marmorek". Taking into account the very crucial interest of contemporary art in the body and its social construction, the newspaper's cultural section writer makes sense. Feliza's work has been traditionally studied in its formal aspect. She has been widely recognized as a crucial figure in Colombian sculpture and she is always mentioned as the first artist to introduce physical movement in her work. But her stance towards being a woman, towards being an activist, towards the body and sex (which a few of her works refer to) has been seldomly studied. Shouldn't it be therefore beneficial that she is being considered under a contemporary point of view? Doesn't this validate her importance not only in the past but also in the present of Colombian art?

If my assumption about Pablo Leyva hampering other projects is right, why haven't institutions done something about this, why haven't they spoken up? I have always understood that the museum's mission is not only the preservation of culturally relevant objects, but also to promote their understanding for wider audiences accross time. Isn't the museum failing to fulfill its mission if it panics at the slightest sight of a cumbersome situation (but not by any means problematic or paralyzing)? If it chooses to avoid an uncomfortable conversation over standing up to their decision to promote an artist at a given event?

We could start a whole new and very long discussion about how copy right law is interpreted and applied in the visual arts. I believe music and film are art forms with clearer rules to abide by (and the road that led to the establishment of these rules hasn't been less rocky and is certainly not finished), but I think it's about time visual arts professionals start thinking about this.

Museums should hold the rights to reproduce images of artwork in their collection. It is part of their responsibility towards the artists they believe in to do so. But above all, museums should be more aware of what artist's heirs are entitled to and  how far can they go in the surveilance of their dead family member's copy right.

It's really sad to witness how an excessive application of copyrigh (made possible by the deep misunderstanding of simple, basic, publically available copyright laws) can silence and harm an artist instead of protecting their work. This is certainly copyright going copywrong.

Let's start having this conversation right now.

This post is dedicated to Adriana Marmorek and Feliza Burszty. Two corageous, innovative artists never afraid to speak their minds.