Sunday, January 16, 2011

Appropriation in Photography: II. Whose Is It, Anyway?

Riddle time…who is the artist that produced this image?

Probably ninety-five percent of you will say “Walker Evans of course.” The other five percent, observing from the title that this is an article on appropriation, will sense a trap and respond knowingly with a slight smirk “Sherrie Levine.” Great guess! But you are wrong. What we have here is a Michael Mandiberg. 

Here is the caption for the image.

Michael Mandiberg
Untitled (, 2001 (1)

You may recall the first sentence of the first article in this series on appropriation is  “It’s complicated.” This description certainly applies to authorship of the image here.

We will unwrap the riddle about whose photograph this is later on in this article. But first we need a quick review of Fair Use, or what is legal in using others’ creative output, and what is not.

A thorough discussion on Fair Use can be found in Richard Stim’s book Getting Permission.  Alternately the short story can be found at the Stanford University Copyright and Fair Use website.

An even shorter crib sheet on Fair Use  are these questions to ask when considering if it is legal to copy someone else’s work.
  •  What is the purpose and use of the copy? Using it for purely educational purposes (such as within this blog article) is generally acceptable.
  • Is it transformative? From a Fair Use standpoint, appreciably changing the nature or context of the material increases the chance of the copy being accepted as being legally permissible.
  • What is the nature of the original? If the copied material is already well known, oft-quoted, or is documentary in nature, a greater degree of fair use is implied.
  • Art in public places is usually fair game unless you have been told that it is off limits.
  • How much of the original material has been “borrowed”? The more used, the more liability there is. Copying a complete image and adding nothing to it is considered bad karma.
  • What is the effect on the potential market of the original material? If it can be shown that the original owner has been subjected to actual or potential loss of revenue because of the copy, then it is more difficult to claim Fair Use.

Relax. This article will not turn into a dissertation on Fair Use. But I needed to point to some of the issues here. Aspects of these bullet points are in play in the Walker Evans/Sherrie Levine/Michael Mandiberg story. You should remember though that something is legal or illegal only after being judged to be so in a court of law. The courts, not bullet points in some list, are the final arbiter.

Let’s start at the beginning of the saga of the image above. Well, almost at the beginning. We will detour around the well-traveled history of the 1936 Walker Evans photograph of Allie Mae Burroughs, the wife of an Alabama tenant farmer. Many of you may have understandingly misidentified the image at the top of this article as this photograph.

We will instead start at a New York photography exhibition at the Metro Pictures Gallery. It was 1981 and the appropriation fad was running rampant in photography. Taking advantage of the public’s apparent appetite for the phenomenon, Sherrie Levine photographed a group of Walker Evans photographs from a book and blatantly exhibited them with titles such as “After Walker Evans. 4.” Probably the Sherrie Levine image that received the most attention was one of Allie Mae Burroughs that looked exactly like the one at the top of this article.

Ms. Levine, participating in the postmodern ethos of the time, was raising questions about the meaning of originality. She challenged the notion that a copy of another artist’s work is any less a piece of art than the original. Taking up the feminist tone of the era as well, she was also poking a stick at several of the towering male photographic icons of the 20th century:  Walker Evans, Edward Weston, and Eliot Porter.

Understandably, the Walker Evans heirs took offense at Ms. Levine showing direct copies of classic Evans images under her own signature, even if she did attribute the original to Evans.  Therefore after legal wrangling the Levine images in the exhibition left the hands of Ms. Levine and ended up being owned by the Walker estate.

You might think that Sherry Levine would have gone away suitable admonished. Well, that’s not quite the case. She took lemons and made quite a sweet batch of lemonade from them. More about that will come in a few paragraphs.

The Metropolitan Museum of Art, which had for many years exhibited Walker Evans’ work, achieved quite a coup when they acquired the Evans archive in 1994. This was a major accomplishment for Jeff Rosenheim, the Metropolitan’s curator of photography whom you met in an earlier article in Random Radiance. Mr. Rosenheim went on to publish numerous books on the Evans portfolio and mounted a major Evans retrospective in 2000.

Given the Metropolitan’s legal and intellectual ownership of the Walker Evans archive, you might imagine that the museum leadership would be somewhat punchy about Ms. Levine’s copies of the Walker Evan’s images. Apparently though they let bygones be bygones. They even accepted gifts to the museum of other After Walker Evans prints from Ms. Levine that were produced from her original negatives. This seeming generosity turned out to be a stroke of either luck or genius on Sherrie Levine’s part, for the Metropolitan honored her and other key appropriation artists of the ‘70s and ‘80’s with a 2009 exhibition of their own. The museum went out its way to give lauds to the Levine images of Walker’s work, stating, “Far from a high-concept cheap shot, Levine's works from this series tell the story of our perpetually dashed hopes to create meaning, the inability to recapture the past, and our own lost illusions.” (2)

New York Magazine, in reviewing the Metropolitan exhibition, put a glossy coating on the whole appropriation genre.

Appropriation is the idea that ate the art world. Go to any Chelsea gallery or international biennial and you’ll find it. It’s there in paintings of photographs, photographs of advertising, sculpture with ready-made objects, videos using already-existing film. After its hothouse incubation in the seventies, appropriation breathed important new life into art. This life flowered spectacularly over the decades—even if it’s now close to aesthetic kudzu. (3)

Aesthetic kudzu. Don’t you wish you would have come up with those words to describe appropriation? It is certainly an apt way of putting it. And this is doubly true for Sherrie Levine’s treatment of her “original” negatives of the Walker Evans 1936 pieces. During the interim between the 1981 exhibit at the Metro Pictures Gallery and the 2009 Metropolitan Museum of Art show, she twisted her kudzu tentacles all over the Walker Evans Allie Mae Burroughs tree. Note the following creations of hers.

Sherrie Levine
Barcham Green Portfolio No. 5, 1986 (4)
Here we have a photogravure made from the Allie Mae negative on rose-colored handmade paper produced by a noted English papermaking family. Unlike the After Walker Evans silver gelatin prints, these are produced with a different printing process, at a different size, on a uniquely toned paper. Referring back to the Fair Use bullet points, we might have the opinion that this image in indeed transformative, and therefore well within the Fair Use guidelines.

Sherrie Levine
Untitled (After Walker Evans Negative) #3, 1989 (5)
But Sherrie Levine was not done with Allie Mae, by any means. She produced a negative print from the original 1981 negative, giving the image seen here. Again, the atmosphere of the original Walker Evans portrait has been dramatically transformed. A platinum blonde Allie Mae with eerily luminous eye shadow? This could be a page from a recent issue of French Vogue.

Sherrie Levine (b. 1947) 
Untitled (after Walker Evans: positive) #3, 1990 (6)

One more Sherrie Evans kudzu vine remains. Here we see Allie Mae back as a silver gelatin print, but one that is much larger than the previous Levine prints and that is incorporated into a wooden frame. The artwork is not the photograph but the entire assemblage. You must hand it to her: Sherrie Levine is inventive.

Whew, we’re done with Sherrie Levine - but not with Walker Evans. Evans produced hundreds more negatives than have been ever printed. Evans’ sponsor at the Farm Security Administration that commissioned his Depression Era field work took the negatives that did not meet his purposes and “killed” them. In other words he punched a hole in each one so it would never be rendered as a positive print.

Lisa Oppenheim
Killed Negatives: After Walker Evans (Small Foot), 2009 (7)
These killed negatives languished in the Library of Congress until some of them were resurrected by Lisa Oppenheim. She printed some of the negatives, with their holes, side by side with prints that were entirely black except for what she imagined would have been in the original scene in the killed area. Take a look at the pair of images here, noting the black area to the left of the left foot. That is the hole what was supposed to kill the print. Now mentally superimpose the printed area on the right print upon the original. Kudos go to Ms. Oppenheim for the creative kudzu.

Had you forgotten about Michael Mandiberg? So where does he come into this mess? If you will, please navigate to this website. I’ll wait a minute. 


I am assuming you’ve done this and are back now. Now you know where Mandiberg is coming from. He is using the notoriety of Sherrie Levine’s copies of the Walker Evans photographs to direct traffic to his own website, where he is offering copies of the Levine images owned by the Metropolitan to whomever wishes to grab them – along with certificates of authenticity. Levine is appropriating Evans, and Mandiberg is appropriating Levine. Wired Magazine, in 2001, published a discussion of the Mandiberg website. You might want to read their take on it then decide if you think that Mandiberg’s ploy is art or is an inane stunt.

So, who is the author of the image at the top of this article? Is it Mandiberg, or Levine, or Evans? And what is there to learn here?

The main take-away is that much of appropriation is interpretation – the legal interpretation of Fair Use laws, the interpretation of whether a particular case of appropriation has significant artistic value and is worthy of being displayed in a major art venue, and your own interpretation of whether a copy of a copy is even art.

I told you it is complicated.

Text other than direct quotations copyright 2011 by Richard Ediger. All images are published within the author’s understanding of the Fair Use policies of their source.
  2. Sherrie Levine: After Walker Evans: 2 (1995.266.2), Heilbrunn Timeline of Art History, The Metropolitan Museum of Art.
  3. New York Magazine, May 18, 2009.