7 lessons learned while doing public art through the RACC
Over the last few months, I’ve been thinking a lot about right and wrong as well as about the nature of truth, and much of this reflection comes from interactions I have had with the Regional Arts and Culture Council. I’ve talked openly about the situation numerous times on my blog, starting last year right after the first part of the exchange happened. Most recently, I even spoke to the press about the situation.
But, in all this talking, I’m not certain that I translated my experiences into something useful for other artists. And that’s unfortunate, because my intention in talking about everything I talk about on my blog is to help other artists navigate art-making and the business of art better. Being as transparent as I am about all aspects of my process keeps me centered and forces me to evaluate my own actions thoughtfully. It’s a good exercise for me, but it’s important that it to be useful to others as well.
Today, I’m going to try to do things right. Today, I’m publishing a portion of the correspondence between me and the RACC. It’s some of the stuff that documents the RACC’s repeated request that I break the law, its refusal to back me up if I got caught, and the way it responded when I gave it feedback.
When I first thought of publishing these emails, I worried that no one who didn’t already trust me would believe that they were real. They just seemed so misguided to me that I was certain people wouldn’t want to believe that the RACC had written them. This still worries me a bit, but, with some perspective, it occurs to me that people might not view these emails as misguided at all. Clearly, the RACC didn’t think what it was saying was wrong, so it’s likely others won’t either.
I’ve come to realize that what’s most important to me in this situation is that each reader be allowed to decide for themselves what they think about the RACC’s behavior and about my reaction. What really matters when disagreements like this one occur is that we all get the chance to learn something about our world.
The story began in summer 2013 when the RACC offered me yet another opportunity. This time, the RACC was presenting me with a public art project—my first! I was informed that, as a result of City ordinance, a particular wall was in need of art, and I was advised that I shouldn’t charge more than $5000 as a first-time muralist. I was also told that the building’s owner liked my work and that he wanted me to paint a composition with multiple faces, anonymous people with a we-are-the-world feel.
Instead, I showed up to my meeting with the owner with this drawing of Kirk Reeves, the street performer who passed away a few years ago. Kirk was my friend and I wanted to create a memorial for him. I also wanted more than $5000 dollars to do so. When I named a fee that followed logically from my commission price list, the owner was visibly surprised by the number I quoted. In response, I handed him a print-out of my price list, explained that portraiture was not something every artist could do, and told him I was open to talking about the price.
But the owner decided to have a chat with the RACC instead. Afterwards, the RACC called me to tell me that I was asking for too much money. I explained my logic, pointed to my price list, and lamented the fact that the RACC was brought into negotiations between two mature people who both run businesses. What’s more, I pointed out that a portrait was not what the owner had asked for, so I would understand if he wanted to go with a different artist.
After my conversation with the RACC, I did end up negotiating directly with the owner. At that time, he asked me to paint former Mayor Bud Clark instead of Kirk. I replied that I could do Clark’s portrait or that I could paint Kirk for $1000 less—I really wanted to do a memorial for Kirk. The owner didn’t make up his mind, but informed me that we would be presenting two complete applications to the City…
...one with the image of Clark…
...and one with Kirk’s portrait.
Much to my relief, the mural committee decided that Kirk’s portrait was more interesting. That said, it wanted me to alter the image. Among other things, it wanted me to portray Kirk wearing a Mickey hat, as he sometimes did.
The first time I heard of the City wanting me to infringe on Disney’s copyright, I was on the phone with the RACC. I was surprised that I’d be asked to break the law, and more than a little intimidated by the whole thing, just as most artists are when dealing with institutions. Still, I managed to stop the conversation and communicate that I wouldn’t be taking on that kind of legal and financial risk on my own. I have Mickeyed around in my studio practice now and again, but I wasn’t going to do it in a mural—too many factors, too much money involved, too public.
The RACC wasn’t worried about my copyright concerns, but I insisted, so we compromised. I ended up submitting two new mock-ups for the mural committee to review…
...one with the ears…
...and one without. When I sent these new mock-ups to the RACC, that email began a written conversation with the institution, and it’s this conversation which documents much of the situation that’s caused so much tension and reflection for me over the last few months.
At the end of this email, I was saying “no” for the second time to breaking the law without someone backing me up. The first time was on the phone, which is what I was referring to when I say “as we discussed a few weeks ago.”
On reading “I would think that unless this image turns into a commercial enterprise for you, you are safe,” I had two reactions:
1) I’m not sure how being paid thousands of dollars to paint a mural is not a commercial enterprise.
2) The RACC is not my lawyer.
This was the third time I was presenting my very reasonable request that the people who wanted me to break the law should also be the ones who pay if I get in trouble.
In this email, the RACC acquiesced to involving a lawyer and, for the first time, it did so without dismissing the importance of my question about liability.
The juxtaposition of the sentences “I am not in a position of offering any legal advice on this issue” and “remember, this image is temporary and you are not selling it for commercial purposes” made me very uncomfortable.
Nevertheless, I followed with the RACC’s recommendation and spoke with the intellectual property lawyer. And as an attorney, he definitely gave me lots of advice that sounded official, but, because I wasn’t paying him, none of his advice actually counted as advice. He wasn’t being an expert in IP as it related to me, and he wouldn’t start being my expert unless I coughed up some money. As intimidating as his knowledge of IP may have been, I wasn’t going to change my mind unless he offered to represent me pro bono if Disney sued, and he never did make me that offer.
By this point, I had said “no” to breaking the law once on the phone and two more times in writing, but the pressure from the RACC was still coming in the form of a request that I speak with someone who not only was not my lawyer but who also had some pretty strange ideas about what I should be willing to do in the name of art. (See below in my email from 13 December 2013.)
I determined that the one way to be sure that the RACC wouldn’t continue to ask me to break the law is if I asked the arts council to follow the law to the letter. Copyright law doesn’t automatically stop you from using artistic material: it only requires that you request permission of the copyright owner before doing so.
Before moving on to my reaction, I should first say that, since there was no credit line for the attached image in the email, I don’t know whose work this is. Please let me know if you recognize the piece and I’ll give proper credit.
In response to this email, I got nothing. There was complete silence for six weeks. I assumed that the project wasn’t going to happen, and I moved on with my life. Then, suddenly, I got an email asking me when I was planning on doing the mural.
And this was something that happened numerous times. The RACC would ignore my feedback, take no action, and keep on doing its thing like everything was fine. I tried several more times to broach these issues with the RACC. I did so at a meeting in February 2014 with a couple of RACC employees, in my final report after the piece was done at the beginning of August, and then by email with a few other members of the RACC’s staff. In response, mostly what I got was silence.
Until, that is, I wrote to the RACC’s director.
I’ve published our full exchange below, and, as I look at the emails now, it’s clear to me just how angry I was. The RACC’s view that the mural was not a “commercial enterprise” had colored every subsequent interaction for me. I’d spent months working with an institution that I knew did not take artists seriously even though it kept up the public appearance that it did, and I was not happy that I’d had to do so. But, against all odds, I had finally managed to create the memorial for Kirk that was important to me on a deeply personal level. Now I no longer had a reason to put up with anything from the RACC, and, as I’ll explain below these emails, I’d already put up with one too many things from this institution.
The precise moment when I decided I wouldn’t let the RACC off the hook occurred right as the mural was getting underway in mid-July. I’d sent out a number of press releases about the project and the RACC had as well, and I quickly noticed a big difference between the journalists who came to me as a result of my press release and those that approached me because of the RACC’s. The latter all thought that the City had decided to honor Kirk and that it had picked me to do it.
To be fair, I don’t think that the RACC intended to claim credit for the idea to do a memorial for Kirk. Certainly, its press release didn’t say that the City commissioned me. Rather, people just seemed to take for granted that this mural was something that had originated at the RACC.
That said, when I alerted the RACC to the problem, they seemed unfazed. In an email exchange with their communications associate that was cc-ed to another employee, I said:
“[L]ots of people (press people and other people) seem to be assuming that the City chose me to do the painting, the [sic] it chose the building the mural is being painted on, and that the City is paying for this project. This is an issue because many Portlanders have very strong ideas about what should be done to honor Kirk, so there’s some frustration about what they perceive as the City/Trimet not doing enough to honor him or not doing the right thing. I don’t know how you want to handle this, but, when it comes up, I’ve been telling people exactly how this project is funded and that it came about because I suggested it when I was offered the wall and the money.”
In response, the RACC thanked me for my comments and said “we will keep that in mind.” To my knowledge, it never tried to correct anyone’s mistaken idea that the City of Portland was finally doing something for Kirk.
I’m pretty liberal when it comes to credit and my art, but this was different. The City had not wanted to be responsible for the mural if it had Mickey ears and Disney came calling, but it was okay with taking full credit for the idea. That was what made me crack.
After all I’d been through to make this project a reality—I haven’t even told you half the stuff—I wasn’t going to let the RACC crush me under its massive institutional weight. I wasn’t going to pretend that I was okay with any of what had happened just for the sake of staying in the RACC’s good graces. The moment the RACC allowed everyone to think I was just a hand it had hired to carry out its vision was when I decided to make sure that the RACC understood that it couldn’t treat artists like they don’t matter.
Despite everything I’ve just revealed, I’m still grateful to the RACC. I’m grateful for the money and opportunities it’s given me over the last decade and I’m even grateful for everything that happened with my first public art project. Navigating the many issues I had with the RACC taught me a lot about the way artists are seen in our world and about other things as well.
These are seven of the lessons I learned:
1) The gatekeepers who work for institutions are not fairy godparents who only have artists’ interests in mind. They’re people with power and sometimes they don’t recognize the power they have. Artists need to be prepared for that possibility.
2) Institutions will sometimes be acting as an artist’s advocate but they might also be acting as a broker between the artist and their community. It’s important for artists to recognize the difference, even when the institution does not.
3) An artist can think that copyright law and the system it engenders are deeply flawed, but, if the artist chooses to follow that law rather than breaking it in a particular situation, it doesn’t mean they lose their status as a free culture advocate or as a transgressive artist. It only means that they are a person with enough life experience that they can make decisions about risk in an adult manner.
4) Just because someone is an expert in their field doesn’t mean that their advice pertains to an artist in particular, and that’s especially true when that someone is a lawyer and the artist is not paying the lawyer.
5) When an artist is the only one taking on legal and financial risk for doing something that’s against the law, the decision about whether or not to do it belongs to that artist alone. When someone else tries to influence the artist’s decision without taking on any risk, their advice may be interesting, but it cannot have the same weight as advice coming from a party who is willing to stand by the artist.
6) It’s okay for a person to say “no” when they’re not comfortable with what’s being asked of them, and it’s okay for them to keep saying “no” until they are heard.
7) No matter how much an institution does for artists, those artists don’t owe it anything more than gratitude. An institution may have given an artist lots of opportunities, but that doesn’t mean an artist should allow themselves to be pressured into doing anything that they perceive of as harmful to their art or to their future.