(Note: I believe the issues involved here will clarify themselves within the first few paragraphs below. As a member of AICA-USA, the U.S. branch of the International Association of Critics of Art, I found myself perturbed in 1996 to read in the organization's newsletter a lament from Max Kozloff accusing Richard Avedon and the University of New Mexico Press of censorship. I found Kozloff's position professionally unethical, legally arguable at best, and repellently whining in tone; so I raised the issue before the membership and board of directors of the organization, which has since formally repudiated any appearance of support for Kozloff's actions. This response to Kozloff's position was initially sent to Alexandra Anderson-Spivy, President of AICA-USA, the stateside chapter of the International Association of Critics of Art, on August 20, 1996. After some consultation with her, I re-drafted it as an open letter and resubmitted it on December 16, 1996. -- A.D.C.)
To the President, Board and General Membership of AICA-USA:
I'm writing this open letter in response to the "Cautionary Tale" offered up by our colleague Max Kozloff in the Spring/Summer '96 issue of the AICA-USA Newsletter ("'AICA-USA Wall of Shame': A Cautionary Tale About Fair Use").
In a nutshell: According to this missive, Kozloff and his publishers, the University of New Mexico Press, reproduced without permission three Richard Avedon images in a 1994 book of Kozloff's essays, Lone Visions, Crowded Frames. These illustrations were submitted to UNM Press by Kozloff in the form of prints that Kozloff claims were "supplied to me as 'press glossies,'" and Kozloff claims that using them to illustrate his book constitutes "fair use" and necessitates no permission from, nor even notification to, the photographer.
Avedon, learning of this unauthorized usage only after publication of Kozloff's book, effectively enjoined distribution by threatening UNM Press with a lawsuit; as a result, UNM Press ceased distribution of the book without consulting with Kozloff. For this, the article's headline proposes that those involved at UNM Press -- and, I suppose, Avedon too -- deserve listing on AICA-USA's "Wall of Shame," and Kozloff implicitly solicits his "dear colleagues" to censure them. And all of this appears to have the unequivocal endorsement of AICA-USA's counsel, Barbara Hoffman (whom Kozloff indicates he engaged to represent him in this matter) and, of course, the support of AICA-USA as well.
I disagree entirely. If Kozloff's contract with UNM Press in any way resembles a current contract of mine with them, he (a) undertook to supply them with the necessary illustrations for his book; (b) obligated himself to secure any necessary rights and permissions thereto for the purpose of that particular publication; and (c) indemnified and held harmless the publisher for any consequences of his violation of those warranties. If that's the case, then, since he failed to fulfill the second obligation, he breached his contract and is appropriately subject to the strictures of item (c).
The terms to which Kozloff agreed are standard terms in book-publishing contracts for people in our field. Nowhere does Kozloff propose that either (a) or (b) -- both of which he presumably signed off on -- are reprehensible; what he objects to is that, upon his apparent violation of (b), UNM Press chose to protect itself by simply warehousing the book (thus, not incidentally, absorbing all of its production costs as a dead loss) without telling him about it. Surely those involved did not make that decision lightly. The alternative to withdrawing the book from circulation was risking, and then probably engaging in, a lawsuit in which the plaintiff -- who has a record of pursuing these matters doggedly, having successfully sued, and threatened suit, on previous occasions -- clearly has the copyright law on his side.
While berating me publicly at a conference in Mexico City on the morning of September 25 of this year for not siding with him on these matters, Kozloff told me that he had offered -- not in advance of publication, as was his ethical responsibility (in my opinion), but well after the fact -- to fulfill his obligations to UNM Press under (c) above by picking up the tab for the ensuing legal battle if they ignored Avedon and went ahead with distribution, as he, and Hoffman, urged them to do. How nice of him. There's no telling what such costs could add up to, of course, so I'd certainly want that assurance in writing if I were his publishers.
Moreover, such a litigation involves extensive hidden costs -- such as the time necessary for employees of UNM Press to gather relevant documents, make depositions, prepare testimony, testify in court, perhaps travel to an out-of-state courtroom -- as well as such intangibles as the possible damage to the press's reputation, whether it wins or loses. Kozloff, I gather, did not volunteer to cover those expenses also.
Furthermore, his posture of injured innocence ill befits a writer who, arguably, breached contract by deliberately withholding from his publisher the vital information that he had not bothered to obtain permissions for those pictures -- and, perhaps, for the other illustrations in his book as well -- as his contract most likely obligated him to do. (That same morning in Mexico City, our colleague let slip the fact that he left his publishers entirely unaware of the fact that he and they would be risking litigation by reproducing those images.) Seems to me that, if he did deceive them thus, he voided his right to protest their not disclosing to him their subsequent response to the situation.
At the very least, it's the pot calling the kettle black, since Kozloff launched this debacle by choosing not to consult with his publishers on his unilateral decision to use this book as a vehicle for testing his eccentric interpretation of the "fair use" clause of the copyright law -- an interpretation which (he told me) even Hoffman acknowledges has no firm legal precedent to sustain it.
Kozloff's rationale for having submitted these press prints without first obtaining permission to reproduce them in a book or even inquiring about the availability of such license is that this reproduction without permission by definition constitutes "fair use," and that, on a photographer's part, such acts as requiring formal written permissions for book reproductions, refusing sometimes to grant them, charging for reproduction rights, and threatening or taking legal action as a last recourse represent the "suppression of unfavorable opinions." Apparently (and surprisingly), all these notions have been supported, verbally and in writing, by Hoffman.
What nonsense. Kozloff and UNM Press were in no way prohibited from publishing the text of his "negative essay" (his description of it), no matter how savage it may have been. Had he and they simply done so without using Avedon's copyrighted images as illustrations, nothing short of Kozloff's straying into the terrain of defamation and/or libel could have been used by the photographer to even attempt to prevent publication or distribution of his book. Kozloff and his publishers were only constrained, after the fact, from using Avedon's images to illustrate his text -- and, of course, to help to sell his book as a whole. And Avedon's intervention took place ex post facto solely because Kozloff chose not to solicit permission beforehand, which could have spared everyone this grief.
Press prints often come with a copyright notice and some indication of the conditions under which they can be used. Even if such information isn't included on a press print, all writers on art for periodicals should know (and, whether knowledgeable or not, are bound by) the copyright law, which nowhere says that copyright is voided by the distribution of press prints, or that permanent license for re-use thereof in any form of publication is thereby granted. What part of this doesn't Kozloff understand?
Not incidentally, at one juncture during his Mexico City diatribe Kozloff told me that -- contrary to his disingenuous assertion in our newsletter that the prints submitted to UNM Press "had been supplied to me as 'press glossies'" -- he in fact fished them out of the files of Art in America while putting his book together, long after they were originally made available for publicity use. Thus he acknowledges using that publication's files as a kind of stock agency for free illustrations. (He did not indicate whether he'd notified the editors of the magazine that their files were serving this function for him.)
These prints, he said, bore the label of Pace-MacGill Gallery, including the gallery's phone number and address, plus a prohibition against cropping. According to Peter MacGill, this indicates that they came from that gallery during the debut of Avedon's project, "In the American West" -- a project that was presented publicly in 1985, nine years before Kozloff's reprinted essay appeared in his UNM collection.
Avedon's refusal to illustrate without recompense that review's republication in a book almost a decade after his own project's initial appearance does not constitute "censorship." Richard Avedon didn't owe Max Kozloff blanket permission to reproduce his images in a book, free of charge or even for a fee, to support Kozloff's arguments, regardless of whether those opinions on his work were pro or con.
In my opinion, what Kozloff and his publishers did, plain and simple, was to violate Avedon's copyright blatantly and disregard standard practice in the field. They did so by using not just one but three pictures provided for one-time usage in one type of medium (occasion-driven, exhibition- or book- or event-related commentary in periodicals and news media like TV -- that's precisely the reason they're called press prints) as illustrational material in a project produced in a quite different context and medium: that of the book-length anthology of critical essays.
Did UNM Press knowingly publish these pictures by a famously litigious photographer without permission? According to Kozloff's account in Mexico City, they did not. So, in my opinion, they don't share exactly equally in the responsibility for this situation. Rather, someone at UNM Press fell asleep at the wheel, Kozloff snookered them, and it backfired on all.
Be that as it may, one implication of Kozloff's position here -- and Hoffman's too -- is either that photographers (and, by extension, all artists) automatically grant critics the right to reproduce in any context any and all of their works, free of charge, or else that distribution of press prints and/or slides in conjunction with an exhibit or publication somehow makes those particular images public-domain material (at least for use by critics) in perpetuity, free of charge in any context any critic chooses.
A second implication is that it is automatically and always cowardly and wrong of a publisher to cease distribution of a published book -- even upon discovering that, unbeknownst to its management and staff, an author has placed that publisher in legal danger by insinuating unlicensed but copyright-protected material into a published book, in possible violation of his contractual obligation with said publisher.
If Kozloff wants to adopt what I consider a posture of unmitigated arrogance and recklessness, that's his business. But is this truly the position that AICA-USA intends to advocate? By allowing Kozloff to use the organization's newsletter to grind his axe in this matter without presenting any simultaneous discussion or counter-argument, AICA-USA appears to lend its support to his stance, and thereby lends it credence. And, by placing a clearly condemnatory headline -- "AICA-USA Wall of Shame" -- on his account, the organization considerably encourages the perception that this represents an organizational position on this matter, although this matter has never come before the membership for discussion, much less for a vote.
Furthermore, while I assume that Hoffman represented Kozloff as an independent lawyer, calling in her own name and writing on her own letterhead, her credential as AICA-USA's counsel clearly played a role in her contact with Avedon and UNM Press, and is cited (along with quotations from her) in Kozloff's one-sided account, thus implicating this organization even further in endorsement of Kozloff's actions.
I have spent my entire working life as a professional writer fighting against such cavalier treatment of my work and that of my colleagues in the field. I object no less strenuously when such fundamental disregard of intellectual property rights is used to strip photographers and other artists of control over their imagery and a share of any benefits and profits that accrue from its use.
Let's not forget that this problem was easily preventable. Had Kozloff taken the trouble merely to lift up his phone for a local call or send a one-paragraph query to the Avedon studio across town from his loft, or had UNM Press bothered to ask to review their author's mandatory permissions prior to publication, this situation would never have arisen. Perhaps it was even rectifiable after the fact, had Kozloff and UNM Press not (with the inexplicable encouragement and assistance of AICA-USA's counsel) stone-walled the rightfully aggrieved photographer by informing him that they'd make no changes and no amends, and he'd have to sue.
I would be fascinated to hear Hoffman's rationale for the assertion that Kozloff (or any of us) have a legal right to reproduce from press prints up to three examples (if not more) of any artist's work in any textual context of our choosing without any obligation to obtain written permissions or pay fees for such use. Kozloff and Hoffman are of course free to argue, individually or in tandem, for any position they choose to support in this regard. They are also free to propose that AICA-USA and its members take a public position in agreement with their own and/or work toward a change in the laws governing such matters.
What they have done, however, goes far beyond that. Through telephone and written communication with Avedon, UNM Press, and the Freedom-to-Write Committee of PEN American Center, and by the publication of Kozloff's "cautionary tale" in our newsletter under a condemnatory headline, Kozloff and Hoffman -- with the unwitting assistance of AICA-USA's president and the editors of our newsletter -- have put this entire organization on record as at least appearing to support a position of theirs whose legality and ethicality seem questionable at best.
AICA-USA has thus come to back a form of what I propose is extremely unprofessional behavior, and appears to be advocating casual violation of photographers' and artists' intellectual property rights as well. As an AICA member, I think that this puts at risk my own credibility with my present and future publishers, who -- seeing my AICA membership among my credentials -- are likely to assume that I subscribe to these peculiar notions and may act as irresponsibly as Kozloff did. Hence I want my objections to all this on the record.
Not only that, but this has taken place without the agreement or even the knowledge of the full membership. As a long-time rank-and-file member, and a former Board member and Executive Vice-President, I ask for an official investigation and explanation of all this.
For reasons of professional ethics, I would have to resign formally from any organization that knowingly and by majority vote advocated the position on copyright that AICA-USA has (in my opinion) stumbled into in this case without thoughtful examination, as that position violates the rights of visual artists in all media, and the underlying principles or lack thereof undermine the hard-won and always embattled rights of writers and other producers of intellectual property, myself included.
Additionally, I would have to dissociate myself from any organization's tacit encouragement of seemingly unprofessional and irresponsible behavior towards publishers and one's contracts with them. (Let me add that I'm a member of the Authors Guild, the American Society of Journalists and Authors, the National Writers Union, and PEN American Center -- all of which, I'm sure, would hesitate to support Kozloff's actions, and our ostensible endorsement thereof, if fully apprised of the facts in this case.)
Respectfully submitted,
/s/ A. D. Coleman
(Postscript: I'm told that, as of spring '97, the book was once again in distribution from UNM Press, without any permissions from Avedon. According to the Avedon Studios, which learned of this in May, no decision has yet been made by them in regard to pursuing this matter further. A version of Kozloff's complaint can be found at ZoneZero.)
© Copyright 1996 by A. D. Coleman. All rights reserved. For reprint permissions contact Image/World Syndication Services, POB 040078, Staten Island, NY 10304-0002 USA;T/F (718) 447-3091, imageworld@nearbycafe.com.
