April 01, 2020 Profiles in IP Law

An Interview with Theodore H. (Ted) Feder: Founder of Artists Rights Society

Adrienne R. Fields

©2020. Published in Landslide, Vol. 12, No. 4, March/April 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Dr. Theodore H. (Ted) Feder has had a vast and impressive career advocating for the rights of visual artists. Ted founded Art Resource in 1968, an art historical photo archive that represents many U.S. and foreign institutions, including the Metropolitan Museum of Art, MoMA, the Morgan, the Guggenheim, and all the French National Museums. In 1987, Ted established the Artists Rights Society (ARS), an organization that licenses, protects, and defends the intellectual property rights of artists and estates from around the world. Ted is an inspiring leader, an informed speaker, and a passionate supporter of artists’ intellectual property rights. Landslide® magazine’s former Editor-in-Chief, Adrienne R. Fields, recently sat down with Ted to share some of his experiences and wisdom as a leader in the industry with our readers.

Please tell us briefly about Artists Rights Society, known by its acronym ARS, and why you decided to found it in 1987.

Actually, in some respects it found me. Through my other company, Art Resource, I had been representing the image rights of many museums in the U.S., the U.K., and France. It happened that in 1987 the then two quasi-governmental artists rights organizations of France, SPADEM and ADAGP, were looking for a representative in the U.S. To make a long story short, they came to me, almost certainly because of my work with museums. Of course, I agreed to be their outpost in the U.S., and established ARS for that purpose. At once I found myself representing the intellectual property rights in the U.S. of the Picasso, Matisse, Chagall, and Miró families, among others. In the months and years that followed, every other nation in the European Union (EU) appointed ARS as their U.S. agent for their own artists. It then followed that ARS would develop a U.S. artist repertory of its own. Today ARS’s U.S. member artists include the estates or foundations of Jackson Pollock, Willem de Kooning, Alexander Calder, Georgia O’Keeffe, Andy Warhol, Helen Frankenthaler, Mark Rothko, Edward Steichen, Jasper Johns, and Robert Rauschenberg, among others. We do have numerous living members as well: Jenny Holzer, Bruce Nauman, Frank Stella, Faith Ringgold, Richard Serra, and Mickalene Thomas being notable examples.

You have shared many entertaining and inspiring stories with me about your background and your experiences as a translator, playwright, professor, and author (with numerous published writings). What was your career path, and how did it lead you to head ARS?

This is curious. In my early 20s, I had worked intermittently as a French translator and French radio broadcaster. My objective however was to be a playwright, and finding little success in that endeavor, I wound up directing plays. Withal, I was not putting bread on the table (the more regrettable as I had just gotten married), so I did what every impractical person might do in that situation: I studied art history at Columbia University, earning my doctorate in 1975 and teaching there for a while. I also enrolled in Rutgers Law School during this period in an effort to do my parents proud, which entailed a nightly trek to Newark from Manhattan. The coincidental thing about my studies at Columbia was that I wrote my doctoral dissertation on late medieval artists guilds. Although once highly protective of artists rights, the guild system has faded in Europe. Becoming head of ARS, I find myself as close as one could come to acting collectively on behalf of artists, somewhat reminiscent of the old system.

As my mentor, you have shared your knowledge and expertise in being an effective advocate for artists and estates. Were there any turning points in the history of ARS that stemmed from your ceaseless efforts?

An important turning point concerned ARS interactions with museums. Although we have had excellent relations with museums for the past 22 years, it was not always so. Up to the mid-1990s, museums took the position that if an artist’s work did not fulfill the U.S. formalities of registration at the Copyright Office, and notice thereafter, the work was in the public domain, free for the institution to reproduce, or merchandise, as it saw fit. They applied this rule even to foreign works. The artist or estate was neither consulted nor compensated for such behavior. Many would never have approved the T-shirts, mugs, and magnets commonly featured in museum shops.

This U.S. attitude contradicted the Berne Convention (Article 18) and the national legislations of all the EU states, which held that a work is automatically copyrighted at the instant of its creation, and requires no formalities. The U.S. attitude deprived creators of all stripes—visual artists, writers, composers—of copyright recognition. ARS considered this to be the primary obstacle to the advancement of artists rights in this country, and set about, if possible, to change it.

Our first serious opportunity to do so arose when a major New York museum decided to mount a retrospective of Henri Matisse’s work. The museum held that Matisse’s work was in the public domain, as it had not fulfilled the U.S. formalities. During almost five weeks of fruitless negotiations, we could not budge the museum. When all was unavailing, I had a meeting with the Matisse heirs, during which it was decided that the family would refrain from lending 41 Matisse works that were in their possession, coveted by the museum for the retrospective. Further it would discourage all friendly museums to refrain from lending their Matisse works for the show. When I apprised the museum of these decisions, it turned 180 degrees and agreed to respect the Matisse prerogatives of review, permission, and compensation. This was a lesson—that when rational argument might not prevail, strong leverage would. That pattern was repeated at the museum’s Picasso and Miró exhibitions in the immediately following years. By the late 1990s, the museum had contracted to respect the rights of all ARS artist works in their keeping.

A similar opportunity, also involving Matisse, presented itself at another major New York museum. It sold reproductions of a Matisse work on multicolored scarves, without consulting the estate, on the theory that the original painting was in the public domain. The estate wanted the scarves pulled as they also disapproved of the reproduction of the work on silk, as well as the liberty the museum took with colors. The museum refused. It happened that the museum maintained a shop at the Carrousel du Louvre, in Paris, where they also sold the scarves. It was arranged for the Paris police to raid the shop and to confiscate the illicit goods, and this did occur. Thereafter, the museum complied with the estate’s requirements. Here too, leverage—and not any moral imperative—changed the situation completely, and today that museum respects artists rights.

Seeking to extend protection on a wider level, we initiated an active campaign, called the CLA Berne 18 Project. It was placed under the auspices of the Center for Law and the Arts at Columbia Law School. The happy result was that Congress adopted the Copyright Restoration Act, effective January 1, 1995, which restored copyright protection to all works that had fallen into the public domain in the U.S. while still enjoying this protection in their countries of origin.

Vanity Fair referred to ARS and quoted you in a 2016 article about the complexities of the estate of Pablo Picasso’s “Multi-Billion-Dollar Empire.” What is it like for you to work with prominent artists estates like Picasso, Matisse, Chagall, Calder, Rothko, and others?

A privilege, occasionally demanding, extremely satisfying.

In 2012, you were quoted in an article in the New York Times about the unauthorized use of a work by Pablo Picasso in the James Cameron film Titanic. Please elaborate.

This was some time ago. At the outset of the film, the heroine establishes her love of art, and artists, by proudly withdrawing her new acquisition, Picasso’s Les Demoiselles d’Avignon, from her trunk. Cameron’s people requested permission to show Les Demoiselles in two scenes. The Picasso estate declined authorization because the second scene showed the painting sinking beneath the waves as the Titanic founders. Of course, Les Demoiselles is still with us and has been housed at MoMA for many decades.

I saw the film three weeks after its release, and was surprised to find the scenes still in it. We deduced that the scenes had already been shot when authorization was sought from us. Cameron must have made the decision that it would be too costly to reshoot the scenes, preferring instead to bear the displeasure of the Picasso estate. The matter was settled out of court, and I note that the later release of the film did not include the scene of the painting sinking.

Has your outlook on artists rights changed over the years, perhaps with the onset of new technologies?

We represent a number of artists who have embraced technology and create digital and interactive works of art. ARS has had to learn about new media in order to license works of art today, which may include use in augmented reality exhibitions, digital displays (such as Meural), and social media ad campaigns. The flip side of this technological advancement is the fact that works of art are now too easily copied, manipulated, and infringed. This shift has required us to be more vigilant in protecting our members’ works and maintaining the value of their intellectual property.

What are the most challenging aspects of running an organization like ARS? Which aspects are the most rewarding?

Making sure that each artist or estate gets the individual attention it deserves. What is acceptable to one artist may not be to another, and ARS has to be certain to tailor its work to the requirements of each. Success in doing so is the reward.

The French Minister of Culture knighted you with a Chevalier of the Order of Arts and Letters in 2016 to recognize your contribution to the arts thus far. What do you hope to see in the future for ARS?

We have many objectives, all aimed to protect and reinforce the rights of artists. A chief goal is to get the U.S. Congress to pass a Federal Resale Royalty Act for artists. It is a shame that such a right exists in some 75 countries around the world, including all the EU states, yet not in the U.S. We have stumped for this right, so far without success, for nine years, maintaining Washington legislative counsel for the purpose, Bruce Lehman, former commissioner of the U.S. Patent and Trademark Office during the Clinton administration. Compared to Europe, especially to France and Germany, the protections afforded visual artists in our own country are woefully lacking. We are striving to rectify this.

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Adrienne R. Fields is the director of legal affairs for Artists Rights Society.