End of the trail

You can still buy some pretty horrible unauthorized copies of James Fraser’s work, but few people remember the artist.
End of the Trail, cast 1918, by James Earle Frazer, courtesy of the Metropolitan Museum of Art. We had the smaller version in our house when I was growing up

 When I visit a city, I try to seek out its famous artists. Minneapolis-Saint Paul gave us Prince, Leroy Neiman, and A Prairie Home Companion. However, visual artists are thin on the ground. That’s surprising, because it’s a robust city of great beauty. Moreover, the prairie has given us so much great art, ranging from the novels of Willa Cather to the paintings of Grant Wood, Thomas Hart Benton, and so many others.

1913 Indian Head Nickel, courtesy US Mint (coin), National Numismatic Collection (photograph by Jaclyn Nash)

James Earle Fraser came from tiny Winona in the southeast corner of the state. His name is pretty well forgotten today, but two of his works are iconic 20th century pieces. The Indian Head nickel was struck from 1913 to 1938 as part of the US government’s first attempt to make beautiful currency. “I felt I wanted to do something totally American—a coin that could not be mistaken for any other country’s coin. It occurred to me that the buffalo, as part of our western background, was 100% American, and that our North American Indian fitted into the picture perfectly,” Fraser said about his design.

End of the Trail was intended to be cast in bronze, but wartime shortages prevented that. The original  slowly deteriorated until 1968, when it was obtained by the National Cowboy & Western Heritage Museum  and restored.

Fraser sculpted a monumental plaster version of a Native brave dropping in exhaustion for the 1915 Panama–Pacific International Exposition in San Francisco. End of the Trail was based on his experiences growing up in Dakota Territory. “As a boy, I remembered an old Dakota trapper saying, ‘The Indians will someday be pushed into the Pacific Ocean.’”

“The idea occurred to me,” he later wrote, “of making an Indian which represented his race reaching the end of the trail, at the edge of the Pacific.”
End of the Trail was copied on the cover of The Beach Boys 1971 album Surf’s Up.
The sculpture earned a Gold Medal at the fair. Within a few months, thousands of photographic prints had been sold. In 1918, Fraser began producing bronze miniatures of the statue. They caught the troubled spirit of the times. They were everywhere, including in my father’s study when I was growing up.
You can still buy horrible copies of it, both in bronze and in less permanent forms, like this t-shirt.
Fraser had great sympathy for the plight of the Native Americans, who were being pushed west or restrained on reservations. His father, Thomas Fraser, was a railroad engineer helping to push the great rail lines across the country. A few months prior to James’ birth, Thomas was among a group sent to recover the remains of the 7th Cavalry Regiment after the Battle of the Little Bighorn.
End of the Trail was meant to illustrate the Native American plight. Instead, it became an early piece of pop-art, copied endlessly not only in bronze but in prints, posters, t-shirts, pins, bags, belt buckles, and bookends. It was featured (badly) on the cover of The Beach Boys 1971 album Surf’s Up.
The same is true of the Indian Head Nickel. This is an insulated Whataburger Coffee Mug.
Fraser learned to carve by scavenging limestone from a nearby quarry. He attended the Art Institute of Chicago, the École des Beaux Arts and the Académie Julian. He worked as an assistant to America’s foremost sculptor,  Augustus Saint-Gaudens. Starting in 1906, he taught at the Art Students League in New York, eventually becoming its director.

Who owns the right to reproduce your painting?

You, the artist, do. If a buyer copies it without your consent, he’s liable for damages.

The Monarch of the Glen, 1851, Sir Edwin Landseer, has been used for everything from the Hartford Insurance Company’s stag logo to biscuit tins and butter wrappers. You can read its history here
“A previous customer wants to use the painting they purchased as part of an advertising image. Anyone with experience in this?” an artist asked on Facebook. It’s a confusing subject.
The fact that her client approached her first indicates he knows that royalties are due. The artist needs to research royalties in her discipline before she can negotiate. I don’t envy her; it’s a difficult thing to pin down. 
Copyright law in the United States is different than in other countries. We have some treaty protection for our work, but nothing really protects artists from international freebooters. What I’m about to say is applicable only here. And of course I’m not a lawyer, so my advice is worth exactly what you’re paying for it.
You don’t need to register your copyright with the government for it to be protected. Copyright exists naturally once the work of art comes into existence. For something to be copyrighted, however, you actually have to make it in a tangible form. “I had that idea first!” is not a valid copyright argument, unless you can demonstrate that you actually acted on the idea.
Copyright gives you, the artist, the sole right to reproduce, create derivative works from, make prints from, and display the work publicly. It doesn’t matter if you sell the physical painting or sculpture; the rights to its image remain with you.
The Associated Press sued artist Shepard Fairey for copyright infringement for his Obama poster. The parties settled out of court in 2011, with details remaining confidential.
‘Work for hire’ is an exception to the general copyright rule. It happens when an employee creates art as part of his job or is specifically commissioned as part of a collaborative work. Advertising art done by either a salaried artist or a contracting artist is an example of the former. An example of the latter might be the artists who draw the illustrations in a medical dictionary for a commercial publisher.
An agreement that the work is for hire isn’t sufficient; the project must meet the courts’ narrow definition. Whether or not the artist is attributed makes absolutely no difference to its legal status.
String of Puppies, 1988. Jeff Koons.
Another exception is the fair-use exemption. This permits limited use of copyrighted material without the copyright holder’s permission. Fair use exemptions include research, scholarship, commentary, criticism, news reporting, parody, and search engines. Without it, artistic commentary (including mine) would grind to a halt. 
The fair use exemption doesn’t allow unlimited copying of artwork by other artists, even for self-styled ‘appropriation artists’ like Jeff Koons.
Puppies, 1985, Art Rogers. Rogers successfully sued Jeff Koons for copyright infringement, one of several times the artist has been sued.
Copyright currently lasts through the life of the author plus 70 years. If the work was produced under corporate authorship it may last 120 years after creation or 95 years after publication, whichever comes first.
What should you do if you find your painting gracing a wine label or a set of plastic dishes—or worse, badly reproduced? Consult a lawyer specializing in intellectual property. That’s theft.

Of course, anyone involved in an intellectual exchange should have a lawyer. The law is extremely complex, and expert advice is worth every penny you pay for it.

Ivanka is a problem only for really rich artists

Trump posing in her apartment before the Tony Awards

Trump posing in her apartment before the Tony Awards. (Instagram)
Alex Da Corte, whose small assemblages sell in the $18-25K range, recently tweeted, ““Dear @Ivankatrump please get my work off of your walls. I am embarrassed to be seen with you.” He is part of an Instagram feed called called “Dear Ivanka” in which artists under the umbrella of Halt Action Group (HAG) repost images of Ms. Trump paired with political appeals. The political appeals are perfectly legitimate protest. Demanding that an owner remove a piece of artwork is not.
Bloomberg just saved me a ton of work by figuring out how much the art in Ivanka Trump’s apartment is actually worth:
In one post, Trump shimmies in front of a Dan Colen “chewing gum” painting; a comparable work sold for $578,500 at Phillips New York in 2012. In another post, Trump’s child plays the piano in front of a ‘bullet hole’ silkscreen by Nate Lowman; a bullet-hole painting in the same palette sold for $665,000 in 2013 at Sotheby’s in New York. In yet another post, taken from a Harper’s Bazaar shoot, Trump poses at her dining table in front of a work by Alex Israel. A similar painting by Israel sold for $581,000 in 2014 at Phillips New York.
“It’s a moment of reckoning,” said Alison Gingeras of HAG. “Going forward, we need to think more carefully about how our work gets brought to the world, and who it’s sold to.”
Ivanka Trump-branded purse in front of a work by Christopher Wool.  This painting appears in a lot of photos of her home.

Ivanka Trump-branded purse in front of a work by Christopher Wool. This painting appears in a lot of photos of her home.
Who are these semi-professional sans-culottes? Certainly not struggling artists. The majority of ‘emerging artists’—i.e., the rest of us—sell in the $100 to $5000 range. We are happy to sell our work at all. I, for one, never enquire into my buyers’ politics. I just smile as I cash the check.
The Visual Artists Rights Act of 1990 (VARA) was the first national legislation in which ‘moral rights’ of artists were addressed. However, these are limited to the:

  • right to claim authorship;
  • right to prevent false attribution to works one didn’t create;
  • right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation.
And of course, artists maintain copyright.
The client purchases the right to display and resell a piece of artwork. In other words, Alex Da Corte can’t demand that Ivanka Trump remove his painting from her home; she paid good money for that privilege. Her use of the artworks in tweets, however, sails a little closer to the wind. In considering copyright, the courts factor the effect of the use on the potential market for or value of the copyrighted work. For example, an aspiring Hitler can’t use a landscape to promote the Third Reich, even if he bought the painting. And your painting can’t be used to market whisky unless you get royalties.
Ivanka Trump’s apartment contains works by Nate Lowman, left, and Dan Colen. I’m of course reposting her Instagram photo under the Fair Use Exemption.

Ivanka Trump’s apartment contains works by Nate Lowman, left, and Dan Colen. I’m of course reposting her Instagram photo under the Fair Use Exemption.
And that’s the point on which the question turns. Until a few weeks ago, artists were chuffed to see their paintings in Ivanka Trump’s tweets. She was marketing herself as an urbane, sophisticated collector, and marketing them as the artists being collected by the cognoscenti.
What has changed? Nothing substantive, only the perception that she is part of the smart set. Since they were happy for her to do it last year, I doubt they can stop her from doing it next year.