What follows is a guest post from Darren Hudson Hick.

A few weeks back, as my aesthetics undergrads were taking their final exam, I was sitting in the back of the room, reading Susan M. Bielstein’s 2006 book, Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property. It’s a book about the history, legality, and pragmatics of art permissions, and it’s a page-turner. Seriously: it’s easily one of the best books about copyright that I’ve read in years (and, by God, that’s saying a lot). Bielstein is the executive editor for art, architecture, classical studies and film at the University of Chicago Press, so she knows what she’s talking about, and she’s an enviably good writer. Accompanying each image in the book is a note about how much Bielstein paid to use the image, and to whom. On page 58 is a reproduction of Robert Rauschenberg’s famous 1953 work, Erased de Kooning Drawing, accompanied by the note: “Fees paid: copyright for the drawing to Rauschenberg/VAGA, $130; use to SFMoMA, $40.”

“Wait,” I probably said out loud, “what?”

copyright Susan Bielstein, 2006, and, presumably, the Rauschenberg estate

To understand my surprise requires a bit of information about the work. Here’s the quick version of the now-famous story: Rauschenberg is early in his career, and at this point best known for his “White Paintings”—large canvases painted a clean, stark white. He had the germ of an idea to create a work of art entirely through erasure—that is, by eliminating some other work of art. In pursuit of this idea, he paid a visit to Willem de Kooning (then, an established pioneer in abstract expressionism). Rauschenberg explained his idea, and asked de Kooning for a work. De Kooning invited him in, and supplied a work that he deemed important enough for the project. Rauschenberg subsequently spent months obliterating the drawing. The result now hangs in the San Francisco Museum of Modern Art (hence the use fee for the photograph).

A little more digging confirmed that, yes, Rauschenberg (alive at the time Bielstein published her book) did indeed claim a copyright in Erased de Kooning Drawing. But what does such a claim mean, exactly? What would such a copyright protect? Well, it would protect what the work looks like (and, here, only what it looks like).Erased de Kooning Drawing retains some remnants of de Kooning’s original charcoal, ink, and crayon rendering: a faint ghost of a female figure can be made out; some other forms thinly survive erasure but not so much that we can easily tell what de Kooning was drawing. (The MoMA offers a much more detailed reproduction than what I’ve given above.)The copyright on Erased de Kooning Drawing allows the Rauschenberg estate (though, curiously, not the de Kooning estate) to collect a permissions fee for photographic reproductions of the work. Copyright protects against copying a thing’s formal properties. In the case of a work of visual art, these will consist in the arrangement of colors, lines, and shapes that make up that work. So, if these remnants are what Erased de Kooning Drawing consists in, then someone else would be perfectly free to erase another drawing—a drawing by another artist; another drawing by de Kooning; indeed, a drawing that looked indistinguishable from the one Rauschenberg erased—provided the end result does not substantially resemble Rauschenberg’s end-product—and here, only with regard to those faint remnants that survived erasure. No one can copyright the lack of something. Indeed, in principle, another person would be perfectly free to produce something that looked indistinguishable from Erased de Kooning Drawing, provided this was all a cosmic coincidence and not an act of copying.

But is this all that Erased de Kooning Drawing is? The remnants of a mostly-erased drawing? Squint your eyes and read the rest of the caption reproduced under the image above: “Figure 12. Robert Rauschenberg, Erased de Kooning Drawing (1953). Traces of ink and crayon on paper, with mat and label on gold-leaf frame, 25¼ x 21¾ x ½ in.” This is very likely the text dictated by the San Francisco Museum of Modern Art: nearly identical wording can be found accompanying identical images in any number of books. The word “with” connecting the paper to the mat and frame is ambiguous: should this be taken to suggest that the frame is part of the work, or that it accompanies the work? If the former, then we have a more robust claim to copyright than if the work is merely what remains on the paper: that is, the work looks like more than the faint remnants of a drawing. And, indeed, on the paper backing is written in all-caps, apparently in Rauschenberg’s own hand: “DO NOT REMOVE DRAWING FROM FRAME. FRAME IS PART OF DRAWING .” Putting aside some apparent confusion about what a “drawing” is, this would make Erased de Kooning Drawing something of an assemblage—partly an erased drawing, partly a frame, partly a mat, partly a title card. The paper backing is also littered with registrars’ labels and other notes built up over the years—the earliest from 1973: would these constitute elements of the work as well? I have no idea, but…

…there is at least some reason to push back against the notion that these accoutrements are part of Erased de Kooning Drawing. Notably, the work’s exhibition history well predates its framing. The work was publicly shown on several occasions prior to its matting and framing (though apparently still with that little title card attached), and hung in the artist’s studio, unencumbered by framing, for years. At this point, we might get derailed into a debate about the when a work is completed, but all of this rather misses the point: Erased de Kooning Drawing isn’t merely an erased drawing, nor a framed, erased drawing. It’s a work of conceptual art; it’s an idea. The work is effectively meaningless (or, at least, much less interesting and important) without its history: the process by which the end-result was reached; indeed, the rather critical fact that it was made from a drawing by Willem de Kooning. And none of that is protected by copyright.

Copyright will protect neither Rauschenberg’s idea nor the process nor method by which he arrived at Erased de Kooning Drawing. Such things are effectively universally disallowed under copyright laws. Although each nation sets up its own copyright laws, only a very small handful have no copyright laws at all, and the vast majority are signatories to international treaties that place certain things outside the reach of copyright. The international TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement—the treaty with the most nation signatories—puts the matter perhaps most succinctly: “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” The expression is the formal thing—the words, the shapes, the sounds. This is the thing(to use the language of the U.S. Copyright Act) that is “fixed in a tangible medium of expression.” This, so far as the law is concerned, is the thing that is protected: those shapes and those colors in that arrangement. Insofar as Erased de Kooning Drawing is a work of conceptual art—and insofar as a work of conceptual art is not a final product but a process, a project, an idea—it isn’t protected by copyright. What is protected is what I like to call the authored work—the more impoverished thing with which copyright concerns itself: the merely formal thing—the visual composition, the arrangement of shapes and colors, the end result.

Copyright might also protect documentation of the work’s creation or instantiation, or the instructions for making that work. Where the construction of such a work is photographed or filmed, the photograph or film would be protected by copyright in the same way that, say, the Zapruder film of JFK’s assassination is protected: as the capturing of some moment in history, some fact from some perspective. The fact is not protected, only the document. The instructions for instantiating such a work, meanwhile—like Sol LeWitt’s wall-drawing instructions—would be protected in the same way that a recipe or the instructions for a game are protected, which is to say “thinly”. Those precise words in that precise order would be protected against illicit copying, but the method, system, or process they describe would not.

Rauschenberg, I am certain, was not attempting to create a thing with the particular faint remnants left on Erased de Kooning Drawing. His goal was to entirely erase what de Kooning put down on that paper, and he failed. Those indelible marks left behind on the paper represent de Kooning’s inability to complete the project—to utterly obliterate de Kooning’s original. And that’s curious. Remember those White Paintings I mentioned back near the beginning of this little essay? Rauschenberg made those shortly before Erased de Kooning Drawing, but he repurposed most of the canvases over the years. About fifteen years later, Rauschenberg hired Brice Marden—himself a young artist—as a sort of general assistant. One of Marden’s assignments was to “reissue” the White Paintings. That is, his job was to make them again, just as they had been originally made. Marden recalls:

I thought Bob wanted to redo those basically because of this whole Minimalist thing going on and he just wanted to show, “Been there, done that” kind of thing. “I did that.” And he did. He had made these things. And I don’t know if they were ever shown. […]

So he said he wanted to remake the set. So that was a job. And I had to try and find out how thick the stretchers were and what kind of canvas. They weren’t exact replicas of what he originally had done, but they were the same size, shape, and everything. And he said, “Paint them so they look like they haven’t been painted. No hand, just put a coat of paint on them.” And that’s what I did. And I think he set it and then went away […]

That’s what he wanted. Anybody could make them. […]

For all I know, that’s the way they first got made; somebody else painted them. And he just said, “Paint them so it looks like anybody could’ve painted it.” That wasn’t hard to do

It’s hard not to see how Rauschenberg stepped from the White Paintings to Erased de Kooning Drawing: the former involved creating something—a blank, empty something—while putting nothing of the artist in it; the latter of creating something—a blank, empty something—by taking away everything of the artist from it.

One of the White Paintings hangs in the Museum of Modern Art in New York City. The label reads:

Robert Rauschenberg. White Painting, 1951. Repainted, likely by Brice Marden in 1968.

The White Painting is stop 806 on the MoMA’s audio tour. Here, facing the repainted canvases, the museumgoer will be told by the voice of the MoMA’s Leah Dickerman, “He didn’t make them all by himself. And in fact, that whole idea that it doesn’t matter much who makes them is key to the work of art.”

It seems that, in Rauschenberg’s view, anybody could (at least in principle) make the White Paintings, just as anybody could (in principle) follow LeWitt’s instructions to make one his wall-drawings. If Marden is right, Rauschenberg just thought it important that people remember he did it first. And perhaps this is what’s at the core of Rauschenberg’s copyright claim over Erased de Kooning Drawing: not the concern that others be kept from erasing drawings—even erasing de Kooning drawings. Others can make things that look the same. Others can do the same thing that Rauschenberg did. What matters to Rauschenberg is that you remember that he did it first.

Erased de Kooning Drawing is kind of special. It’s among a handful of artworks that helped usher in a new era of art, unlocking doors we didn’t even know were there. And many, I suspect, take the protected-by-copyright label as indicating something special about the thing protected. But it doesn’t. Copyrighted doesn’t mean special. So far as it goes, copyright is pretty mundane. Most things protected by copyright are pretty mundane.

Copyright wasn’t created to protect art or artists; it was created to protect publishers. American copyright, in turn, was founded on the notion that offering copyright protection would provide the necessary incentive to grow the marketplace of ideas, both fanciful and factual, available to all of us. It was designed to protect the expression—the final product—and specifically not the idea. Indeed, the American model of copyright is often described as striking a sort of balance between creators and users: the creator gets ownership over the expression, but the idea is given over to the public domain.

Insofar as artworks are at least in part identified with their ideas, it should come as no surprise that “authored work” (the thing protected by copyright) and “artwork” (that thing plus) don’t cleanly map onto each other. The mapping is strained to the limit with conceptual art (where the thing may not even be part of the work, strictly speaking). But Rauschenberg found—as many artists have—that the aura attached to the label of copyright can nevertheless be useful in protecting the artist’s interests, even if copyright’s connection to those interests is only tangential. The “right of attribution”—the right to have one’s identity associated with one’s work—is part of the package of “moral rights” that accompany copyright in most of Europe. As the French Intellectual Property Code puts it: “An author shall enjoy the right to respect for his name, his authorship and his work.” In France, as in most of Europe, the right of attribution does not expire, cannot be waived, and cannot be sold. The artwork shall always be connected with its artist. But America recognizes no such rights in creators in general (and not to Rauschenberg in this particular case). Still, copyright ownership allows the copyright owner to state the conditions under which the work may be reproduced, and this may well (and typically does) include proper attribution.

If Rauschenberg’s interest is in being afforded the proper recognition for his work and his contribution to the trajectory of art, claiming a copyright in Erased de Kooning Drawing can act in service of that interest, even if the thing that copyright protects is (strictly speaking) not the artwork itself.

Copyright is an imperfect tool for the job. But it’s a tool, and sometimes it’s enough.

Notes on the Contributor

Darren Hudson Hick is the author of Artistic License: The Philosophical Problems of Copyright and Appropriation (Chicago) and Introducing Aesthetics and the Philosophy of Art (Bloomsbury), and co-editor of The Aesthetics and Ethics of Copying (Bloomsbury). He is walking the earth.

Edited by C. Thi Nguyen