Public interactivity is an integral part of the works created by the late artist Félix González-Torres. But what happens when works an artist intended to be free become commodified and eventually sold?
Museums and galleries exhibiting González-Torres's trademark "stacks" — individual works comprised of hundreds of sheets of stacked paper printed with the same text or image — typically allow visitors to take a poster or two home with them for free. For those who aren't able to view the works in person, a thriving online market for remnants of the stacks now exists, with some individual sheets selling for thousands of dollars.
Speaking to Artsy, Megan Noh, a partner in Pryor Cashman's Art Law practice, discussed the legal obligations sellers have when listing individual posters online for sale: "When sold, Gonzalez-Torres's stacks are accompanied by a certificate of authenticity and master for reproduction of the broadsheets. Only the holder of the certificate actually owns a complete, authentic Gonzales-Torres work. This means, logically, that if sold separately, an individual broadsheet from a stack is something other than that, and should be appropriately described." In other words, if the posters' sellers advertise them as being unique works by the artist, buyers who relied on such inaccurate descriptions could potentially ask for their money back if and when they discover this not to be true.
Noh added that the sale of a poster alone — that is, the sale of a sheet properly taken from an exhibition — should not run afoul of copyright laws, as an owner of a copy of a copyrighted work is permitted to sell or otherwise dispose of that copy. The Copyright Act could, however, provide recourse for the current holder of the artist's copyrights in the works, were someone to make unauthorized use of a depiction of a stack for commercial means, such as to promote the sale of a product.
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