Marcel Duchamp inscribed his work Fresh Widow (original 1920, reproduction 1964) with a copyright notice, devising an absolutely symbiotic relationship between art and law. With this inscription however, Duchamp was not necessarily seeking copyright protection, but may have instead sought to comment on the relationship between art and copyright. Duchamp’s placement of a copyright notice on a sculpture that was obviously not “fine art” may have served as a critical reaction to both the art community’s and copyright’s preoccupation with the traditional definition of art that Duchamp and the other Dada artists had denounced. However, copyright law at that time was not static. As Duchamp’s readymades pushed the boundaries of art in the early twentieth-century, the 1909 Copyright Act grappled with the copyrightability of applied art and useful articles. Closer consideration of these parallel developments in art and copyright law reveals that Duchamp’s Fresh Widow was not just an uncopyrightable readymade but could have qualified as a copyrightable piece of modern art.

Dada, Marcel Duchamp, & Readymades

Born in France but active in the United States, Marcel Duchamp (1887-1968) was a painter, sculptor, and writer as well as an influential figure of the Dada movement in New York City. Responding to the “psychic upheaval” triggered by World War I, young artistic exiles in Switzerland started the Dada movement in 1916. (Hopkins 2004, 1). Richard Huelsenbeck, a German poet taking refuge in Zurich, named the movement “Dada,” which meant “hobbyhorse” in French, to express the primitiveness of this new art movement. (Ades 1974, 12). Dada artists denounced the bourgeois art of the late nineteenth-century as their unifying principle and adopted an “anti-art” position that focused on ideas instead of aestheticism and artistic skill. (Hopkins 2004, 9); (Ades 1974, 4). As one of the most influential artists of the Dada movement and even the twentieth-century, Duchamp approached art conceptually, fostering an “anti-art” position that may at best be categorized as “negation-of-art-that-still-counts-as-art.” (Masheck 2002, xiii). Duchamp’s work typically included visual puns and ironic references to the art itself, as part of his effort to foster a perpetual discourse on art. (Naumann).

Exercising this “overly intellectual approach” to art, Duchamp in 1913 made his first readymade: “a commonplace manufactured object deemed a work of art only through its selection by an artist.” (Naumann). The readymades arose from his “anti-art” position questioning the purpose and role of art. For Duchamp, “the wit was in making a common object as remarkable as an art object and making a work of art as real as an ordinary thing at the same time.” (Mascheck 2002, 10). The readymades blur the line between art and ordinary objects by adding an additional meaning to the piece itself. Duchamp's Fresh Widow obscures this distinction even further as a sculpture created to look like an ordinary object that does not necessarily function as one.

Fresh Widow

First created in 1920, Fresh Widow is a sculpture of a small window that stands independently of any walls. Constructed of wood painted mint green, the “window” is not life-size but stands about two and a half feet tall by one and a half feet wide. The two hinges on each side allow the viewer to open the window by pulling on the small plastic pushpin nobs. Each half of the window is one pane wide and four panes high. Black leather lines the back of each glass pane so that the viewer can see his or her reflection in the sheen of the glass, creating a “black mirror” effect.

The title, Fresh Widow, is a pun on the words “French” and “Window,” dropping the “n” in both words. This pun refers to the double windows commonly found in Parisian apartments. The title and the black leather in the windowpanes may also allude to the dark veils worn by women in mourning, specifically the recently widowed by World War I. (NGA). The inscription in black tape on the ledge of the window reads: “FRESH WIDOW COPYRIGHT ROSE SÉLAVY 1920.” This inscription marks the first appearance of Duchamp’s drag persona: Rose Sélavy. (Franklin 2016, 349). With this particular signature, Duchamp challenged the idea of artistic authorship and the traditional perception of the role of the artist. (Tompkins 2014, 349).

While living in New York, Duchamp created the first Fresh Widow in 1920, with the assistance of a carpenter. In 1964, Arturo Schwarz, a Milan-based art dealer, collector, and friend of Duchamp, hired local artisans to make limited editions of Duchamp’s works, including Fresh Widow. Schwarz mounted an exhibition of these replicas, which traveled throughout Europe. Attention to detail with these reproductions was important to Duchamp. (Kamien-Kazhdan 2014, 83). These replicas transformed Fresh Widow into an object that was intended to appear mass-produced into crafted, custom-made, limited edition art. Like the original Fresh Widow, the replicas themselves contradict the concepts of uniqueness and singularity in art. (Kamien-Kazhdan 2014, 80).

Copyright Law

Duchamp created Fresh Widow and the readymades to challenge the basic principles of art: uniqueness, authenticity, and authorship. Comparably, in order to qualify for copyright protection at that time, a work of art must have been an original work of authorship with sufficient notice proclaiming such authorship. However, the rather broad language of the 1909 Copyright Act, the federal copyright law at the time of Fresh Widow’s creation and subsequent reproduction, did not provide a clear standard for determining when a work meets this copyrightability requirement. During the first-half of the twentieth-century, various interpretations of the statute by the Copyright Office and the U.S. Supreme Court developed in a similar vein to the evolution of modern art. The copyrightability analysis of Fresh Widow aptly demonstrates this relationship.

Notice

The 1909 Copyright Act required the artist to affix a notice to each copy of a work published or offered for sale in the United States. (35 Stat. 1075, § 9). Notice included the word “copyright,” (the abbreviation of “copyright,” or the copyright symbol), the name of the copyright holder, and the publication year. The artist had to affix the notice on some accessible portion of the work. Noncompliance with these requirements precluded federal copyright protection and brought the work into the public domain.

The purpose of a copyright notice was to give sufficient warning of possible copyright enforcement to any potential users of the work. A complete and accurate notice was important to allow users to identify and contact the copyright holder for a license. The format of Duchamp’s Fresh Widow notice, “FRESH WIDOW COPYRIGHT ROSE SÉLAVY 1920,” appears to comply with these requirements upon first consideration. However, it is unclear how the courts would have interpreted the Rose Sélavy pseudonym in this context, as they would have had to consider the strength of the association between this pseudonym and Duchamp’s real identity. (See, e.g., Herbert Rosenthal Jewelry Corp. v. Grossbardt, 436 F.2d 315 (2d Cir. 1970) (finding that initials could serve as a substitute for copyright owner’s name on its copyright notice); Fleischer Studios v. Freundlich, 73 F.2d 276 (2d Cir. 1934)(finding that an incomplete name was sufficient notice)). Duchamp may have had some interest in licensing Fresh Widow as he gave Schwarz permission to make the reproductions. However, he more likely intended with this particular notice to mock the concepts of authentic authorship as a legal requirement for copyright.

Subject Matter

Despite the notice’s unclear status, analyzing the copyrightability of Fresh Widow in the context of its subject matter provides a more compelling insight into this particular relationship between art and copyright. At a time when artists like Duchamp were challenging and expanding the definition of art in the art community, copyright law vacillated between protecting only “fine works of art” versus protecting a broader range of works, impacting the copyrightability of certain types of art, including pieces like the readymades. The 1909 Copyright Act explicitly protected “all the writings of an author.” (35 Stat. 1075, § 4). The statute itemized this broad category into smaller classes, including “[w]orks of art; models or designs for works of art.” (35 Stat. 1075, § 5(g)). The 1870 Copyright Act had extended protection only to “works of the fine arts,” but Congress removed the “fine” qualifier when enacting the 1909 Act.

The Copyright Office somewhat ignored this significant absence from the statute, excluding useful articles from the scope of copyright protection in a 1910 regulation that defined works of art to include works “belonging fairly to the so-called fine arts” and not products that are “utilitarian in purpose and character.” (Copyright Office Bulletin No. 15, 8 (1910)). This interpretation seemed to be inconsistent with the absence of “fine” in the statutory language. (Perlmutter 1990, 343). In 1949, the Copyright Office later aligned the regulatory scope of a work of art with the statutory parameters by protecting “works of artistic craftsmanship, in so far as their form but not their mechanical or utilitarian aspects are concerned.” (37 C.F.R. § 202.8 (1949)).

In 1954, the U.S. Supreme Court attempted to clarify whether a particular useful article was protected or unprotected in Mazer v. Stein. (347 U.S. 201 (1954)). In this case, the Supreme Court considered the copyrightability of statuettes depicting male and female dancers that were intended for use as lamp bases. The Court held that the statuettes were copyrightable, because “[it was] clear Congress intended the scope of the [1909] copyright statute to include more than traditional fine arts.” (Mazer, 347 U.S. at 213). The Court further emphasized that copyright protects the expression of the idea and “[s]uch expression, whether meticulously delineating the model or conveying the meaning by modernistic form or color, is copyrightable.” (Mazer, 347 U.S. at 214). In so holding, the Court ultimately embraced abstract and representational art by interpreting the 1909 Copyright Act to extend protection to works of art that might serve a useful purpose if the work is first copyrightable as a standalone pictorial, graphic, or sculptural work. (Perlmutter 1990, 344). For the Court, utility and art were not mutually exclusive.

After the Mazer decision, the Copyright Office published a regulation implementing Mazer’s holding, which more or less remained the standard for determining the copyrightability of useful articles until the Supreme Court’s recent decision in Star Athletica v. Varsity Brands. The regulation stated that “[i]f the sole intrinsic function of an article is its utility,” then the work will not qualify as a copyrightable work of art. But if the artistic features of the utilitarian article “can be identified separately and are capable of existing independently as a work of art, [then] such features will be eligible for registration.” (37 C.F.R. § 202.10(c)(1960)).

Was Fresh Widow Copyrightable?

It is likely that in 1920 Fresh Widow would not have been categorized as “fine art,” especially considering the aims of Duchamp and other Dada artists to create something deliberately contradictory to the “fine art” establishment. However, Fresh Widow would likely have qualified as a “work of art” in the copyright context as a hand-crafted sculpture. The 1909 Act’s broader scope of copyrightable subject matter to include works of art beyond just the “fine arts” seems to have acknowledged this shift in aesthetics.

Assuming the artistic status of Fresh Widow, the difficulty in the copyrightability analysis arises when determining the intrinsic function of a work that is ultimately a scaled-down window: an object whose utility is generally universally accepted. Mazer and the regulations dictate that for an object that is artistic and functional, only the aesthetic features that can be identified from and exist independently of the article’s utilitarian function are protectable. Which features of Fresh Widow would one classify as aesthetic or functional? The push-pin nobs? The glass panes? Separating these features without considering the overall form and object seems ineffective and even futile.

The difficulty of separating the artistic from utilitarian features prompts, however, a different “outlook” concerning this object’s function. Fresh Widow has the appearance of a useful article as a miniature French window with working hinges and small push-pin pull knobs. But the work itself does not have any practical utilitarian function and is not intrinsically useful. One cannot see through the glass panes, and the work does not offer any mode of ingress or egress being completely unattached from any sort of wall. Fresh Widow is more “hand-crafted” compared to Duchamp’s other “found” readymades, where the artist designated mass-produced, functional objects as art, such as the shovel for In Advance of the Broken Arm (1964). Duchamp also did not create Fresh Widow as a model for an at-scale version of a functioning window. With Fresh Widow, the artist was not likely seeking to create a working window but a copyrightable modern art sculpture that imposed new meaning on an ordinary object through imitation. Following the standard alluded to in Mazer, Fresh Widow is ultimately an expression of Duchamp’s ideas about Paris, the loss from World War I, art, and even copyright. Copyright aims to protect this type of unique and creative expression, which is ultimately the “function” of Fresh Widow.

Art/Law

In Fresh Widow, the viewer can witness the interdependence of art and copyright as if one is reflected by the other in the sculpture’s black mirror. The principles of copyright clearly influenced Duchamp’s artistic choices with Fresh Widow. By placing the copyright notice on the ledge, Duchamp intended to juxtapose copyright’s struggle with fine arts with a “non-artistic” readymade, in align with the “anti-art” position of the Dada movement. However, despite Duchamp’s intentions (or perhaps consistent with Duchamp’s wit), the craftsmanship and ultimately non-utilitarian function of Fresh Widow could have led to the copyrightability of this work. As copyright certainly directed the creation of Fresh Widow and Duchamp’s meaning with this piece, the viewer must possess some copyright knowledge or awareness at the very least to avoid missing the various nuances when studying and appreciating this work.

Duchamp never registered Fresh Widow for copyright protection, despite the alleged notice. However, the analysis of the potential copyrightability of Fresh Widow from a legal point of view encourages a conscientious reflection on copyright, art, and useful articles. While Mazer and the current standard under Star Athletica encourages “separating” features of the work to determine copyrightability, Fresh Widow shows that doing so can change and even distort a broader perspective of the work. Picking out “artistic” or “useful” features of Fresh Widow such as the push pins, hinges, or panes of glass, one loses perspective of the entire work’s potential and its art historical significance and strays from copyright’s objective to protect original expression. The copyright analysis certainly benefits from an understanding of the artist’s intentions and the objectives of the Dada movement, by providing the proper context and information to consider the work.



Image Credit:

© Association Marcel Duchamp/ ADAGP, Paris / Artists Rights Society (ARS), New York 2017

Reproduction, including downloading of Marcel Duchamp works, is prohibited by copyright laws and international conventions without the express written permission of Artists Rights Society (ARS), New York.

Bibliography

Ades, Dawn. 1974. Dada and Surrealism. London: Thames and Hudson Ltd.

Franklin, Paul B. 2016. "Besides It is Always The Others Who Die: A Chronology of Marcel Duchamp’s Life and Work." In The Artist and His Critic Stripped Bare; The Correspondence of Marcel Duchamp and Robert Lebel, edited by Paul B. Franklin. Los Angeles, CA: Getty Research Institute.

Hopkins, David. 2004. Dada and Surrealism; A Very Short Introduction. New York: Oxford University Press.

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Masheck, Joseph. 2002. "Introduction to the Da Capa Edition." In Marcel Duchamp in Perspective, edited by Joseph Masheck. Cambridge, MA: Da Capo Press.

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Tompkins, Calvin and Kamien-Kazhdan, Adina. 2014. Marcel Duchamp. New York: Gagosian Gallery.

Act of March 4, 1909, 60th Cong., 2d Sess., 35 Stat. 1075.

37 C.F.R. § 202.8 (1949).

37 C.F.R. § 202.10(c)(1960).

Mazer v. Stein, 347 U.S. 201 (1954).

Herbert Rosenthal Jewelry Corp. v. Grossbardt, 436 F.2d 315 (2d Cir. 1970).

Fleischer Studios v. Freundlich, 73 F.2d 276 (2d Cir. 1934).

Rules and Regulations for the Registration of Claims to Copyright, Copyright Office Bulletin No. 15, 8 (1910), reprinted in Mazer v. Stein, 347 U.S. 201, 212 n.23 (1954).

Shira Perlmutter, “Conceptual Separability and Copyright in the Designs of Useful Articles,” 37 J. Copyright Soc’y U.S.A. 339, 343 (1990).





