If you happen to follow Ivanka Trump on Instagram, one thing you will notice, apart from the barrage of self-congratulatory motivational posts, is that many of her photos feature her carefully staged Upper East Side apartment. Her sense of style is notably understated, but every piece of furniture and décor, nonetheless, exudes affluence and her apartment is by almost anyone’s account, full of art.
One Instagram captioned, “Shimmying my way into the weekend #TGIF,” shows Ivanka dancing in front of a Dan Colen “chewing gum” painting, similar works of which sell for around $500,000. Another shows her children in their pajamas on a piano, in front of a “bullet hole” silkscreen by Nate Lowman (a comparable piece sold for $665,000 in 2013). Her posts aren’t only for personal purposes either; earlier this year she posed one of her brand’s handbags in front of a Christopher Wool painting, exclaiming “I think I may task our deisgn [sic] team with always creating pieces that fit in so well with my apartment.”
The artists behind the works that appear in Trump’s Instagram posts have since become aware of her penchant for using their pieces as backdrops, and they are not too happy about it. An activist group, led by Curator Alison Gingeras, dealer Bill Powers, and artist Jonathan Horowitz, among others, has rallied the artists to publicly voice their concern regarding her display of their works and her alignment with Donald Trump’s policies. The group developed the @Dear_Ivanka Instagram account and blog to provide a platform for artists and others to express their apprehension of a Trump presidency to Ivanka.
Last week, artist Alex Da Corte took to his own Instagram to re-post a picture of Trump in front of one of his works in her apartment with the caption, "Dear @Ivankatrump please get my work off of your walls. I am embarrassed to be seen with you." The question remains though, would he actually have the ability to take any legal action to take back his art if he felt like his work was being used to support a message he did not?
The answer likely depends on the doctrine of moral rights or “droit morale,” a French-born concept that provides artists with broad ability to control the way their works are used. In the U.S. such rights – which are strictly confined to limited run works of visual art, including paintings, sculptures, drawings, prints, or still photographs produced for exhibition – are included in the Visual Artists Rights Act (“VARA”). Significantly, the statute allows artists to invoke some “moral rights” for specific works of art even after the work is subject to private ownership.
The classic European scheme – upon which VARA is so heavily based – includes the following rights:
The right of disclosure or divulgation, which allows the artist to determine when a work is complete and may be displayed;
The right of paternity or attribution, which allows an artist to protect the identification of his name with his own work, and to disclaim it when applied to another's;
The right of withdrawal, which permits the artist to modify or withdraw a work following publication; and
The right of integrity, which allows the artist to prevent his work from being displayed in an altered, distorted, or mutilated form.
As distinct from the rights provided in Europe, VARA only sets forth a cause of action for the infringement of the rights of paternity and integrity. The pieces in Ivanka’s apartment, provided they are not mass-produced, are very likely to fall into this category of protected works, but the rights provided likely do not provide any redress for the artists who feel they are being wronged. The right of withdrawal, while not evident under U.S. jurisprudence, would have been one of the stronger arguments an artist could make, had it been recognized in our law. Accordingly, in some other countries, the artist might have the ability to re-purchase his art in a comparable situation.
While under some interpretations of moral rights, De Corte would be able to fight Trump and her use of his art in her Instagram posts, but in the U.S., he is likely without recourse. One may argue that Ivanka’s juxtaposition of an artist’s work with herself – given her political ideals – could be “prejudicial to the artist's honor or reputation.” However, the text of the VARA statute limits this right to a situation “where there has been a subsequent distortion, mutilation, or modification of the work.” The statute also creates an exception for “reproductions” of the work, probably eliminating any real chances of success for an artist in the case of Instagram posts.
On the other hand, the artists may be able to argue that copyright infringement is occurring on some level. Classic copyright infringement occurs when one reproduces a work without the artist’s permission. An exception is made for “fair uses” of the work, which is determined by a complex balancing of a handful of factors. One of the more important considerations within these factors, is whether the use is commercial or non-commercial.
Although Ivanka may have an argument that the pictures of her pajama clad children playing the piano in front of a work of art may be a non-commercial fair use, she will have a much more difficult time claiming that the promotional Instagram posts of her products in front of works of art fall into that category. Further, to the extent her selfies and other pictures are considered commercial in the context of her personal brand, they could be actionable as well.
Late last week, the operators of the @Dear_Ivanka Instagram account posted one of Ms. Trump’s previous pictures, her posing in front of a painting at her apartment. The caption read a more somber message, reporting that in the days following the artist’s criticism, Trump supporters “[have been] threatening the lives and safety of artists who've expressed concern regarding the inclusion of their work in [her] collection.”
While purchasing art is theoretically possible for anyone, the question of whether contemporary art has a place in an advertisement or a promotion is purely of the artist’s discretion. Ultimately, no artist should be forced to back a political ideology, or accept harassment for voicing their opinion in the same, simply because their work has been purchased.
Jessica Meiselman is a lawyer and writer based in Brooklyn. She is a contributor on Complex and Noisey among other websites. Her work can be found at www.jessicameiselman.com.
UPDATE (1/13/16): Richard Prince has taken action in connection with a work he sold to Ivanka Trump and her husband Jared Kushner in 2014 for $36,000, returning the money to the two young art collectors and denouncing his connection to it as a result.
The work at issue comes from Prince's controversial Instagram series, "New Portraits," for which he takes posts from others' Instagram accounts, adds his own commentary and then prints them on canvas. No stranger to litigation, the Instagram series alone has landed Prince in court in connection with two separate cases, both alleging copyright infringement.
Interestingly, Trump served as one of the faces of Prince's Instagram collection, as Prince used a photo from Trump’s own Instagram account. The daughter of President-elect Donald Trump, included the caption, “#Selfie on set! Big shoot today!” Prince added his own caption: "Nurse Trump" with a few emojis, including the face with a sick mask over it, the lipstick emoji and a pink bow emoji.
According to Prince, he is able to withdraw authority for owning his work through VARA, which he says thereby destroys any value attached to the work; as previously noted, it is unclear whether that a legally sound argument. Prince has since taken to Twitter to voice his thoughts on Donald Trump and the artwork at issue.