Category: Art

Remembering Helen Levitt: “New York’s Visual Poet Laureate”

When I saw that this year’s World IP Day/Week celebrates the contributions of women, the first thought that came to mind was a memory of a chance meeting in the Spring of 1986 with a legendary photographer named Helen Levitt. My friend Josh and I were in New York City down from college and were supposed to stop by a gallery owned by a friend of his family. When we arrived, the owner, along with another woman who looked about seventy, was reviewing stacks of Levitt’s photographs. So, when Josh announced, “I love Helen Levitt,” he did not notice—but I did—that the older woman sitting at the end of the table, very quietly, almost to herself, said, “Thank you.”

Then, with proper introductions made, we were invited to join Ms. Levitt and the owner in poring over some of most widely-regarded images ever made in the genre of street photography. “They kept offering us more photographs like a pair of Jewish grandmothers serving chicken soup,” as Josh remembers it. At the age of eighteen, I had never heard of Helen Levitt or her work, but then neither had a lot of people due to the fact that she was an intensely shy and private person, shunning publicity for most of her more than sixty-year career capturing some of New York’s most poignant, charming, humorous, and painful little moments.

Had I thought of anything smart to ask, Levitt wouldn’t have wanted to answer it anyway, as NPR’s Melissa Block would later discover in a rare interview conducted in 2002. In response to Block asking about one photo depicting a group of girls on the sidewalk watching floating soap bubbles that seem to be following them, Levitt replied, “If it were easy to talk about, I’d be a writer. Since I’m inarticulate, I can express myself with images.”

In an era when the techno-pundits have preached to all the artists that they must abandon the concept of value in their works and instead “cultivate their personal brands” on the free platforms of abundance, this memory of a chance meeting with a woman and artist who rejected notoriety seems well suited to observing World IP Day 2018. Because without question, Levitt’s work speaks for itself, even if she was reluctant to speak for her work. As her friend, fan, and collaborator James Agee wrote in the introduction to her first book in 1965, “…the photographs as a whole body seem to me to combine in a unified view of the world, an uninsistent but irrefutable manifesto of a way a of seeing, and in a gentle and wholly unpretentious way, a major poetic work.”

Born in Bensonhurst, Brooklyn in 1913, Levitt dropped out of high school in her senior year and first learned basic photographic skills working for a commercial portrait photographer starting in 1931. By the mid-1930s, there was a growing emphasis on documentary photography, when artists like Walker Evans, Ben Shahn, and Dorothea Lange were hired by FDR’s Resettlement Administration to portray the effects of the depression and the famine of the “dust bowl.” Levitt, who would become a colleague of Evans and Shahn, was initially inspired to take pictures with a social agenda, but in that same 2002 interview, she said …

“I decided I should take pictures of working-class people and contribute to the movements. Whatever movements there were—Socialist, Communist, whatever was happening. And then, at one point, I saw the photographs of Cartier-Bresson, and I realized photography could be an art. That made me ambitious. I wanted to try to do something like that. Instead of pictures were being use for a purpose. Trying to approach making a picture that would stand up by itself.”

After Levitt met Bresson in 1935, accompanying him while he photographed the Brooklyn waterfront, she bought a used Leica the following year and taught herself composition by looking at art in museums. Then, when she began taking pictures in the city’s poorer neighborhoods, like Spanish Harlem and the Lower East Side, it was not as a documentarian but as an artist. Unlike the very specific empathy inspired by Lange’s beautifully heartbreaking “Migrant Mother,” Levitt abandoned that kind social commentary for something more subtle, or as Agee and many other critics would say, for photographs that are “lyrical.”

In the days before air conditioning and television, the streets of the neighborhoods Levitt visited were the living rooms and commons of the adults and—most of all—the playgrounds and “battlegrounds” of the the children. Here she found visual poetry.

In one of my favorite photos, a group of boys plays with a broken mirror on the sidewalk. Two of them pick through the jagged shards on the curb while another pair holds the empty, wooden mirror-frame upright so that what first grabs our attention is the small boy seated on a tricycle, positioned behind and, therefore, within the upheld frame. We instinctively see what looks like a reflection of a child who isn’t there until a moment of study corrects this perception. Particularly because of this frame-within-a-frame element, this image feels almost collage-like, composed of fragments, much like the broken bits of mirror being contemplated by the boys.

Like much of Levitt’s work, this photograph is full of kinetic energy, not so much telling a definitive story as inspiring the viewer to concoct any number of stories to describe the moments just before and just after the scene she has chosen to memorialize. Although the children in this image are demonstrably poor, neither that nor their multi-ethnicity is what Levitt presents or asks us to think about. To the contrary, the mood of the photo is more like a Rockwell idyll–just boys being boys. In this regard, it’s easy to wonder if Levitt’s profound shyness did not lend itself to a proclivity for the kind of detachment needed to make art from a keyhole view of real people. I asked my friend Marco North about Levitt’s influence on his own street photography, and he replied …

“She looked at the world really carefully, and recognized the most subtle gestures, the most fleeting laughter and elevated them to something fairly epic. I feel wisdom in her images, about life’s complexity – pain and triumph, joy and tears it is all there, with a gentle gaze, set inside a landscape (her pictures always carry context, a lot of environment with them.) I think Levitt taught me that there is a way to take the ugly, grotesque moments we witness in the street and just witness them, adding nothing overt to them, not commenting or romanticizing or demonizing – just putting a moment on a plate and serving it for lunch, no fancy parsley sprigs on it, just food for thought.”

Possibly inspired by Ben Shahn, Levitt often used a right-angle lens that allowed her to point the camera perpendicular to what she was really framing, thus preventing her subjects from altering their natural behavior for the camera. In that same NPR story, photography scholar and curator Maria Morris Hambourg describes Levitt as “like a cat, very quiet, very slight.” This jibes with the the resulting images suggesting that Levitt deftly maneuvered between the obvious icons of poverty—the broken, peeling, and threadbare neighborhoods—to capture intimate, human moments that her subjects sloughed off without the slightest awareness of their latent artistic value. As Joel Smith writes for The New York Review of Books, “Any human gesture in a street photograph—a swinging arm seen from this angle, a planted foot from that one—results from the posture and movements not of the subject alone but of two people, photographer and photographed.”

Levitt’s first solo exhibit was mounted at New York’s Museum of Modern Art in 1943. A year later she began collaborating with James Agee and artist Janice Loeb on a 14-minute film called In the Street. Essentially Levitt photographs in motion, segments from this film serve as the prologue to Episode Seven (2001) of Ric Burns’s New York documentary series. She received Guggenheim fellowships in 1959 and 1960 to resume her photography, this time in color. Although considered a pioneer in color work, many of her prints were unfortunately stolen out of the modest Greenwich Village walk-up apartment where Levitt lived alone for more than thirty years.

The first national retrospective of Levitt’s work was launched in 1991 by the San Francisco Museum of Modern Art; and in 1997, she received the International Center for Photography’s Master of Photography Infinity Award. Most of her books were published after 1987, when she was 74, suggesting Levitt might have been as reticent to market her work as she was to market herself—at least in contrast to many notable photographers. On March 29, 2009, she passed away in her sleep at the age of 95, and I wonder if there was still a box in the corner marked “Here and There,” the title of a book published in 2004.

Particularly because Helen Levitt never did “cultivate her brand,” her work, and its influence on countless subsequent photographers, says something about the meaning of “originality” in photography. The copyright skeptic often doubts the premise of “authorship,” particularly in works that are at least co-written by forces external to the author. As a mechanical (and now digital) medium of creation, photography has always been vulnerable to this criticism; and street photography might seem particularly “unoriginal” to some.

By contrast, numerous articles refer to Levitt as “New York’s visual poet laureate,” and although I cannot find the source of this accolade, it seems highly appropriate. In much the same way that Walt Whitman poeticized the precision of a blacksmith’s hammer or the dangling shawl of the prostitute in Leaves of Grass, Levitt’s street photographs are among the essential phrases in the city’s ever-expanding vernacular.

Ninth Circuit Ends “Monkey Selfie” Boondoggle

If for no reason other than the fact that I’m out of monkey jokes, I’m pleased to announce that the Ninth Circuit Court of Appeals has finally put an end to PETA’s ridiculous litigation in which the organization alleged that the Sulawesi crested macaque in the photograph known as the “monkey selfie” is rightfully the owner of the copyright in the image. After photographer David Slater had his copyright—one could argue—stripped by the blogosphere, he was then forced to defend himself in this preposterous claim by the “animal rights” organization. So, I’m glad for his sake that this bit of absurdist theater is finally over.

Both the majority and concurring opinions focus primarily on PETA’s claim that it had standing in court to act as “next friend” on behalf of the named plaintiff—the macaque whom they randomly called Naruto. “Next friends” are typically representatives of individual claimants who cannot advocate for themselves—minors, mentally or physically impaired persons, or imprisoned persons. A “next friend” must show proper relationship to the allegedly injured party and that they are truly representing the injured party’s interests rather than some other agenda while posing as a “next friend.” In the concurring opinion, Judge Smith writes …

“Animal-next-friend standing is particularly susceptible to abuse. Allowing next-friend standing on behalf of animals allows lawyers [citation omitted] and various interest groups [citation omitted] to bring suit on behalf of those animals or objects with no means or manner to ensure the animals’ interests are truly being expressed or advanced. Such a change would fundamentally alter the litigation landscape. Institutional actors could simply claim some form of relationship to the animal or object to obtain standing and use it to advance their own institutional goals with no means to curtail those actions. We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”

And there’s this biting comment in the footnotes of the majority opinion …

“… in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” [citation omitted] PETA seems to employ Naruto as an unwitting pawn in its ideological goals.”

It is admittedly a little disappointing that the court rejected PETA’s standing to represent the monkey in this case only because it might at least have been entertaining to read the opinion of the court on the copyright claim itself. Don’t get me wrong, I think the proposal that an animal can own a copyright is facially absurd—straining at the boundaries of even the most extreme anthropomorphism. Still, it might have been fun to watch the court inquire how, for instance, this primate resident of Indonesia managed to register “his” copyright in the United States in order to be eligible for statutory damages. And that list goes on.

As mentioned in an older post, one of PETA’s fatal flaws is the assumption that ownership of a copyright implies only commercial exploitation and, relatedly, the kind of litigation it brought on behalf of “animals everywhere.” But that’s not what copyright means. Copyright means choice. It means the author may choose the manner in which a work is exploited, and since an animal cannot express that kind of choice—at least not in any language we understand so far—even if PETA had standing, it would find its claims swirling around an ever-widening drain of absurd logic.

Copyright is complicated enough without asking the courts to read the minds of animals. I’m glad we can finally move on from this one.

Blurred Lines in More Ways Than One – Part I

In what may be the most aptly named copyright case in recent history, “Blurred Lines” (properly Williams v. Gaye) is generally viewed as a mistake that many composers and songwriters fear will have a chilling effect on the craft of music-making. The headline complaint is that the outcome thus far asserts copyright protection for musical style, and, if true, this would certainly be harmful to the promotion of expression.

As attorney and law professor Rick Sanders opines in his blog, this case has such an unusual fact pattern—he calls it a perfect storm—that it may not be quite the precedent many fear. This opens up a much broader discussion about the legal processes for finding infringement, which I’ll do my best to summarize Part II.

To recap, in 2015, a jury awarded the Marvin Gaye estate $5.3 million in damages plus a 50% share in all future sales of the Robin Thicke/Pharrell Williams song “Blurred Lines,” finding that it infringed Gaye’s 1977 hit “Got to Give it Up.” Last month, the Ninth Circuit Court of Appeals denied a retrial, and counsel for Williams and Thicke last week filed for an en banc rehearing. Attorney Kathleen M. Sullivan notes in her brief that California’s Ninth Circuit is the “nerve center of the Nation’s creative industries,” thus its rulings on copyright are of particular significance.

In her appeal, Sullivan leans substantially on the district court’s failure to conduct proper analysis before “Blurred Lines” was presented to a jury. She writes …

“… the district court’s failure to make an objective comparison of the works before proceeding to  jury trial resulted in a trial where the jury was subjected to a mystifying haze of musicological obfuscation in which the Gayes’ expert found “implied” musical elements that were not notated in the lead sheet and ‘shift[ed] and invert[ed] the pitches’ in the songs in ‘a feat of musical gymnastics well beyond the skill of most listeners.’”

In part, Sullivan is quoting the strongly-worded dissent in the Ninth Circuit’s current holding, written by Judge Nguyen, which argued that the two songs are “objectively dissimilar.” In essence, the dissenting view argues that the district court should have been able to reach this conclusion as a matter of law and, thus, the case would never have gone to trial. Hence, Sullivan’s most quotable statement expressing the nature of concern among songwriters and composers …

“If a copyright holder can now get to a jury simply by proffering an expert to opine that a song’s elements are substantially similar to an accused song, without any objective comparison by the court, no musical work is safe from the prospect of copyright liability.”

Further, Sullivan asserts that the majority in the Ninth Circuit holding erred by applying a “broad” standard of protection to musical compositions. She states that this is both a contradiction of precedent and an error of law for two reasons: first, that no particular medium should be singled out for “broad” protection; and second, that the diversity of musical compositions may depend more than any other on “thin” copyright protection. “If anything, music is composed from indispensable, commonplace elements more often than other genres [she means categories] given that there are only 12 notes in the Western musical scale,” Sullivan writes.

That argument gets to the crux of the challenge in a case like Williams, especially because it went all the way to trial by jury, which is actually quite rare in copyright cases. In general, one does not need professional experience in law or music to know that all songwriters are working with the same set of common elements—notes, chords, time signatures, etc.—and that within any given musical genre, one work can sound a lot like a precedent work without the second actually copying the first.

Copyright is supposed to protect individual expressions but not ideas or facts; and in music, common elements, and even some standard arrangements of those elements, are generally viewed as ideas and facts (i.e. unprotectable). But when two musical works are quite similar, where does a court look for infringement; and even more unpredictably, how is a jury instructed to look for infringement?

As Rick Sanders states in his blog, what makes Williams most unusual was the fact that Robin Thicke so openly conceded that “Blurred Lines” was inspired by “Got to Give it Up.” This testimony feeds a doctrine known as the inverse-ratio rule, whereby the more one can prove the new artist had “access” to the precedent work, the less one must demonstrate similarity between the two works. More on this topic in the next post, but suffice to say that “access” is not generally easy to prove, and Thicke was an atypical witness by admitting that he was all but trying to mimic Marvin Gaye’s song. Add to this the evidence from the Gayes’ musicologist explaining the technical similarities between the two works, and the jury’s conclusion makes sense for us regular folks who can imagine being in their seats.

But for copyright attorneys and scholars, Williams v. Gaye actually touches several doctrinal nerves—namely that there is no uniform test for infringement; that the two main circuits (the Ninth and the Second) apply slightly different analyses; and that the process of testing for infringement in one medium, like literature, does not so easily apply to another medium, like music. All of this funnels into questions about what kind of evidence should be presented to a jury, or even whether it is rational—the Seventh Amendment notwithstanding—for juries to preside in copyright cases at all.

Based on the tone and rhetoric employed by the anti-copyright forces, I sense a bias that being pro-copyright is seen as equivalent to being pro-plaintiff in nearly all litigation. Whether that bias truly exists, I can say that I don’t personally know many copyright advocates who are pleased with the outcome in “Blurred Lines,” to say nothing of the composers and songwriters concerned that finding for the Gayes grants too broad a protection to elements that should be unprotectable.

Having said that, though, two scholars I admire greatly, Lateef Mtima and Sean O’Connor, take a very different view that the evidence presented in Williams is not only consistent with copyright law, but also represents an important reversal in a longstanding tradition of white musicians appropriating the musical styles of people of color. In an editorial for The Seattle Times, they write …

“While music copyright cases up to the mid-20th century often focused on catchy melodies, contemporary cases consider harmonic and rhythmic elements as well. The older view derived from a white, European — often ‘high brow’ — approach to music. This marginalized the influential harmonic and rhythmic innovations of artists of color from jazz on through rock and hip-hop. While black artists complained about these issues for decades, it is only when the tradition of white misappropriation of black musical innovation is threatened that the system comes under thunderous scrutiny.”

What Mtima and O’Connor are alluding to in a copyright context is the subjective aspect of testing for infringement; and this is where doctrine gets especially complicated, even without adding the emotional element of race to the narrative. Most copyright experts agree that infringement can occur beyond the scope of literal copying, and this generally translates into a doctrine of perception—i.e. how an ordinary listener, viewer, reader would perceive the allegedly infringing work. In theory, this is where a jury adds the element of justice into an otherwise subjective equation.

To Mtima and O’Connor’s point, in Williams, they see an important shift in understanding non-literal copying (i.e. Marvin Gaye’s style) and view this shift as resetting some balance in copyright protection for the contributions of people of color, which have unquestionably been commercialized by white artists. They state …

“The older focus on literal melodic copying systematically disfavored artists of color, Relying on this presumed exclusion of harmonic and rhythmic elements, record companies perennially promoted white artists from Elvis Presley to Iggy Azalea who could perform songs imitating artistic innovations of black artists.”

This is a fascinating line of inquiry from a historic, artistic, and social-justice perspective, though it may further muddy the waters, so to speak, in the broader debate as to how courts should test for infringement. Or perhaps it will provide a useful new context for settling some of these longstanding challenges. In a follow-up post, I’ll do my best to boil that debate down to a digestible narrative, but fair warning—it is a narrative with many blurry lines of its own.