PROTEST OR PROFIT: Could Artists Be Exploiting Victims Who Are Killed By Police?
By Yvonne Bynoe
In 1955 Mamie Till Bradley held an open coffin funeral for her murdered son, Emmit. She made the excruciating decision to allow the world to see her son’s disfigured body to draw attention to the brutality and barbarism of the White supremacists who murdered him.
The 14 year old Chicagoan had been visiting relatives in Money, Mississippi. Emmit was accused of whistling or flirting with 21 year old Carolyn Bryant in a grocery store. Bryant’s husband and his half-brother abducted Emmit from his great-uncle’s home. The two men beat and tortured Emmit before shooting him in the head. The men then dumped the boy’s body in the river. Historian Timothy B. Tyson said that Carolyn Bryant admitted in 2008 that the allegations of sexual misconduct against Emmit Till had been a lie. No one went to jail for Emmit Till’s murder.
Photographs of Emmit Till’s open coffin appeared in the Chicago Defender newspaper and in Jet magazine; two African-American publications headquartered in Chicago. The images were then published in other news publications throughout the country. The photographs of Emmitt Till lying in his casket ignited the modern Civil Rights Movement.
The painting, “Open Casket” (2016) by White artist Dana Schutz referenced Emmit Till’s coffin photograph and sparked controversy when it appeared in the 2017 Whitney Biennial. Schutz said her work was a response to the media coverage of Black men being killed by police. Schutz used impasto to depict Emmit’s mutilated face and to allude to the damage under his white dress shirt.
African-American artist Parker Bright called for the removal of the painting and conducted a silent protest by standing in front of the painting wearing a T-shirt with the words “Black Death Spectacle.” Another African-American artist, Hannah Black, wrote an open letter to the Whitney Museum’s curators and staff that was co-signed by 47 artists and art professionals and posted on Facebook. It stated in part:
“The painting should not be acceptable to anyone who cares or pretends to care about Black people because it is not acceptable for a White person to transmit Black suffering into profit and fun…”
African-American curator Aria Dean wrote an essay titled “The Demand Continues” in The New Inquiry which was a scathing indictment on the racial insensitivity of Whitney curators, Mia Lock and Christopher Lew and artist Dana Schutz
Despite the maelstrom, neither the Whitney Museum nor Schtlz agreed to remove the painting from the exhibit.
Most of the art world critiques of the silent protest and the underlying complaints about the painting defaulted to ahistorical tropes about the freedom of artists to create. The truth is that for centuries, museums, galleries, and art publications excluded the work of Black artists thus impeding their ability to freely express their ideas and perspectives in the public sphere. Consequently, White artists have been able to define social, historical, and political narratives through their work.
Unsurprisingly, the writers didn’t address whether or not a charge of cultural or racial exploitation could ever be legitimately leveled against an artist.
When it comes to race, particularly Black Americans objecting to artwork where they are the subject, curators and museums usually pontificate that declining to exhibit a work is censorship that will have a chilling effect on creativity. It’s a disingenuous response given that curators and museum boards regularly omit works from acquisition consideration or exhibits for a variety of reasons, including subject matter and/or how an artist treated the subject matter.
The core issue isn’t about the right of an artist to create his or her work. Any artist can partner with his/her community to create public art related to the victim or incident; donate related work to an educational institution, civic group or social justice organization; or create art that doesn’t use a victim’s likeness.
The central concern is the need for well-defined legal guidelines that allow the families and estates of victims killed in race-based crimes to protect the likenesses of their loved one from being exploited by artists for financial or professional gain.
Writer and activist James Baldwin said, “Liberal: Someone who thinks he knows more about your experience than you do.”
Schutz’s refusal to remove her work from the Whitney exhibit coupled with her tone deaf responses was an exercise in White privilege. Her actions demonstrated that she wasn’t an ally of Black people. While she correctly stated that she didn’t know what it was to be Black, she nevertheless painted a historically significant Black American allegedly to discuss the killing of Black American men.
If one accepts that Schulz’s explanation that her intent was to tap into her experience as a mother, and how she would feel if her son was killed, then it’s reasonable to ask why she didn’t paint Mamie Till Bradley or any of the countless Black American mothers whose sons were killed by Klansmen or policemen throughout American history.
Emmit Till was a young Black boy who was mercilessly killed by two White men over a lie from a White woman. A strong argument can be made that 61 years later his murder was exploited by an opportunistic artist and abetted by the museum that exhibited her work. “Open Casket” is a cautionary tale about what is on the horizon as the demand for Black art increases: The likenesses of Black people killed by police and White domestic terrorists being commodified, exhibited, and sold with impunity.
For decades primarily Black American artists have created works to protest racial injustice. However, in the last decade art using the likenesses of Black crime victims has proliferated. In 2012, after Trayvon Martin was killed by vigilante George Zimmerman there was an onslaught of artworks using his likeness. Works depicting Trayvon wearing a hoodie became a visual short-hand for racial injustice. Trayvon’s hooded sweatshirt was part of the thug narrative that Zimmerman’s defense attorney successfully used to justify the shooting and get his client acquitted.
In the ensuing years there has been a marked growth in artwork that uses the likenesses of Black Americans killed by White supremacists and police officers, including: Ahmaud Arbery, who was chased by three White men in a pickup truck and fatally shot as he was jogging near his home in Brunswick, Georgia; Breonna Taylor, who was fatally shot by Louisville police while she was asleep in her bed; and most notably, George Floyd, who was killed by former Minneapolis policeman Derek Chauvin who held his knee on Floyd’s neck for more than 7 minutes as the handcuffed man pleaded for his life.
Currently, it’s unclear how these victims’ families can legally stop artists from profiting from the likenesses of their dead relatives. Unlike Mamie Till Bradley, the families of these victims didn’t expressly agree to have their slain loved ones become public symbols of racial injustice.
Under U.S. law, individuals don’t have absolute ownership of their name or likenesses; however, they’re granted certain rights of privacy and publicity to control how their name and likeness is used. For example someone can’t use the image of a public person i.e. a celebrity, politician or industry leader to sell or promote a product, service or cause without their permission. A public figure is usually defined as someone whose profession or voluntary actions thrust them into the public eye. Publicity rights also don’t end when someone dies and can be passed on to their estate.
Under the Fair Use doctrine, a media outlet can legally publish a dead person’s photograph or likeness for news or educational purposes. The legal uncertainty arises once the media shares the victim’s photograph with the public. Artists then have access to the victim’s likeness and can use it as the basis of their artwork.
Although laws vary from state to state, generally an artist can assert his or her freedom of speech rights that are granted under the First Amendment to sell work using the likeness of a dead person. However, depending on the nature of the rendering, selling limited editions may be prohibited by law.
To be immune, a state or federal court has to find that an artist’s rendering is “transformative.” “Transformative” is a highly subjective term premised on the judge ruling that the artist added something unique to the work rather than just replicating an existing image.
Copyright law may provide victims’ families with a way to control the use of the dead person’s likeness by artists. Under copyright law, the person who took a photograph(s) of the deceased victim retains ownership of the copyright even if media outlets disseminated it. This means that a friend or family member could sue an artist for copyright infringement if the artist used his or her photograph of the deceased victim for their rendering without permission.
Pop artist Andy Warhol made his name selling paintings of celebrities, including silkscreens of Marilyn Monroe after she died. Warhol was also personally sued at least three times for copyright infringement. His estate, The Warhol Foundation, was sued in 1996 and 2018 for copyright infringement.
In each lawsuit photographers asserted that Warhol used their photograph for his painting(s) without their consent.
Warhol settled four of the lawsuits out of court. In 1996, The Warhol Foundation reached an out of court settlement with photographer Henri Dauman. In their lawsuit, Time Inc. and Dauman claimed that Warhol used a Life magazine photograph taken by Dauman of a grieving Jacqueline Kennedy at her husband’s funeral without permission for his painting “16 Jackies” (1963). In 2021, a New York federal Appeals Court ruled against The Warhol Foundation finding that Warhol violated photographer Lynn Goldsmiths’ copyright by using her 1981 photograph of the musician, Prince, for his Prince painting series without her authorization.
While people may take exception with this discussion it nevertheless presents serious moral and legal issues that have to be considered. The victims of police killings and modern day Klansmen didn’t elect to become public figures or cause celebres;
but were catapulted into the role after their heinous murders. If artists have unfettered use of these victims’ likenesses, it’s naive to believe that the commercial exploitation of Black death and suffering isn’t a logical consequence.
Since this is brand new legal territory, how or when this matter will be resolved is undetermined. First, a victim’s family would have to sue an artist and then the case would have to go to trial. An out of court settlement doesn’t establish guilt or case law. Even if a victim’s family won their lawsuit, the ruling in their case wouldn’t be definitive. In subsequent cases, different state laws and specifics could result in a variety of outcomes for plaintiffs.
In the future, the art world shouldn’t expect Black families to sit quietly on the sidelines and not use the courts if they feel that an artist, museum, or gallery is exploiting and financially profiting from the murder of their loved one. It’s like asking these people to endure further suffering by watching their son, daughter, husband, wife or father or mother being killed all over again. Hopes and prays isn’t enough.
Yvonne Bynoe is the founder of the online platform @shelovesblackart which highlights visual art from the African diaspora. She is a former attorney and the author of the acclaimed book, Stand and Deliver: Political Activism, Leadership and Hip Hop Culture.
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