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| Who Owns WPA Prints?
TRANSCRIPT OF PANEL DISCUSSION HELD AT THE PRINT FAIR NOVEMBER 4, 2000 Grace Glueck (Moderator), art critic at The New York Times Will Barnet, former WPA artist Hersh Cohen, managing director, Smith Barney Asset Management and print collector Sylvan Cole, print dealer specializing in American Prints Franklin Feldman, lecturer of art law, Columbia Law School David Mickenberg, Director of the Mary and Leigh Block Museum of Art at Northwestern University Francis O'Connor, art historian and WPA expert Richard Solomon: IFPDA is honored that Grace accepted our invitation to moderate this distinguished panel that will delve into the convoluted situation regarding the prints that were commissioned under the WPA. On behalf of all of us, please welcome Grace Glueck, The New York Times art critic. Grace Glueck: I want to say immediately that we are sorry that no representative of the General Services Administration could be found who was willing to come to our session today, and I think it is a great loss on their part. But we will proceed without them. Let's start with Francis who is going to give us the history and background of this situation. Francis O'Connor: I want to address the historical background of the General Services Administration's recent attempts to claim government ownership of fine prints created under the New Deal Art Projects during the 1930's. These claims that encompass all New Deal Art, not just prints, rely on a theory of ownership historical evidence suggests is bureaucratically self-serving and not in the public interest. These claims are certainly open to challenge. Let me make it clear, however, that I am not advocating breaking the law. Rather, we are challenging a specific theory of law developed by the GSA over the last 60 years, a presumed absolute ownership of its predecessor's property. As a consequence, the GSA demands that anyone possessing artwork such as WPA prints turn them over to the GSA or give this material to a public institution. The GSA has produced an inventory of New Deal Art in non-federal buildings and documentation of its legal theory. In order to understand the GSA's theory of ownership, we have to understand the history and policies of the several New Deal visual arts projects that operated, for the most part, parallel to each other, between 1933 and 1943. Unlike the Federal Writers' Project, Theater Project, and Music Project, there were four visual art projects, one under the WPA, and three under the Treasury Department. First, an important distinction: The New Deal Administration was the first to support the government's production and promotion of art by artists from all over the country. This change was specific to the Public Works of Art Project and the WPA Federal Art Project, both of which were work relief projects that paid directly for art with wages rather then patronage projects that acquired specific works of art by contract, as did the Treasury Department's Section of Painting and Sculpture when it commissioned Post Office or Courthouse murals or sculptures. The New Deal's new policy of relief production and popular promotion both required, and in fact inhibited, the formulation of comprehensive and consistent regulations concerning how the government owned what it was paying for. These regulations officially assumed government ownership, but there were three big problems. First, they unofficially allowed many ambiguously articulated exceptions required by the nature of the art form -- artist's proof prints for instance -- or the fact that a mural became ipso facto the property of its wall's owner. Second, the tumultuous administration of the relief projects caused problems and led to a certain inevitable lack of attention as to who owned what. Third, there was a tendency, especially on the WPA Federal Art Project, to ignore the specifics of ownership, since the WPA administrators were more interested in helping indigent artists and promoting the creation of art around the country. The bottom line is that an idealistic cultural bureaucracy fudges the rules. This was especially true of the first project, the Public Works of Art Project, PWAP. It planned, according to its early documentation, to allocate its creations to public facilities. Being short-lived - it only existed between December 1933 and June of 1934 -- it ended before it could supervise such placement, so the art was more or less abandoned, taken in by other government agencies or regional officials, given away, lost - or in one very famous case, purloined. Consider the fate of The Fleet's In!, painted by Paul Cadmus in 1934. It depicted a group of six sailors, six young women, one dapper gentleman lighting a sailor's cigarette, and a censorious old woman. The picture was to be included in the PWAP's exhibition of its best work at the Corcoran Gallery of Art in Washington in June of 1934. That is until an irate admiral wrote to the Secretary of the Navy protesting that the painting cast aspersions on the virtue of American sailors. The PWAP reluctantly removed the work from the exhibition, and agreed to transfer it to the Navy. The Assistant Secretary of the Navy, who just happened to be a certain Henry Latrobe Roosevelt, (a fifth cousin of the President), immediately rescued it from the Corcoran before it could walk the plank at the Navy department, and hung it at his own home. Thus, he started the habit of well placed New Dealers dealing themselves a hand of art. When he died in 1936, Henry Roosevelt bequeathed the painting to the Private Alibi Club in Washington, where it hung until 1980. Then, the GSA managed to get it back into Federal custody on the grounds of its claim to universal ownership, and deposited it at the Naval Historical Center in Washington, D.C. This painting's history and fate raises pertinent questions about the ownership of government property that has been taken into private custody by a government official and then inherited by an institution, and the propriety of violating both the government property regulations on the one hand and the good faith transactions years after the fact. Similar unsupervised dispersal of art, on a much larger scale, happened on the WPA Federal Art Project. It's art was used to lobby for appropriations, lent to various government agencies, sent to embassies abroad, destroyed by and sometimes privately collected by project administrators, and finally loaned in bulk to whatever institutions would take it, with the residue auctioned off or trashed after the projects ended. Two examples will suffice here: One describes the vamping of Congress for votes, and the other, the wanton destruction of a mural for specious political reasons. The WPA/FPA was subject to yearly re-appropriations by Congress. This required lobbying, and the Project's chief lobbyist was a handsome, young woman in her early thirties. As she once told me with a sly twinkle in her eye, she would visit Congressmen who needed a bit of persuasion about the future of the WPA Federal Art Project with a supply of photographs of art created on their state's projects. Perching on the edge of their desks, she would go through the photographs with them explaining how they might choose what they wanted to decorate their Washington and local offices. This method of securing wavering votes was apparently quite effective, and whatever the Congressmen wanted, they got. The loan records are now in the Archives of American Art and indicate that between the years 1936 and 1941, nearly 1,500 works were lent, and that only about 110, or 7 %, were ever returned. The GSA argues that the Constitution gives Congress the sole right to dispose of government property although the GSA never involved Congress in the disposition of its inventories. The point is that no effort was made by the Project to get this art back. This is yet further evidence that Project Art was expendable as expedient, that no one gave much thought to its return, whatever the paperwork might say or suggest, and the idea of government property was almost a meaningless notion to New Deal idealists who were not out commissioning art, but employing artists and inducing a national cultural revolution. My second example is the outright destruction of government property by the government itself. On Sunday, July 7, 1940, The New York Times ran a story headlined "Red Propaganda in WPA Murals at Floyd Bennett Field Charged." The very next day, despite protests from the artists and local project officials, the murals were destroyed by the order of a certain Colonel Brehon Somervell, the head of the New York WPA. The charges that the murals were Communist propaganda were specious. An alleged portrait of Stalin turned out to be that of a famous test pilot. Somervell was well known for his administration of the late years of the WPA Project. He considered all artists Communists, and he once tried to forbid Project artists from signing their works on the theory that they were creating government property! Yet he had no scruples about destroying government property that he saw as politically incorrect. The Floyd Bennett Murals were summarily burnt, with no vestige of due process or appropriate paperwork. Nevertheless, according to loan records, Somervell himself received 11 works of WPA/FPA Art in 1941 and returned none - and went on from terminating the WPA to crown his career supervising the construction of the Pentagon from an office presumably decorated with "Communist" art. (But of course, Stalin was an ally by then.) Finally, it ought to be noted that the Treasury Section murals and monumental sculpture in federal buildings housing the Treasury Department were less threatened by dispersal. They did, however, suffer from wanton neglect over the years and. The establishment of the US Postal Service in 1970 which permitted post office murals to be sold to private citizens and dubious attempts at conservation, has resulted in serious damage, such as to the Ben Shahn murals in the Bronx Central Post Office. All the projects were terminated during the war years. After the war, tendencies to view the projects as hotbeds of Marxist ideology and Communist subversion - ideas already used against them in the 1930s - reduced New Deal art to "poor art for poor people." And, the depiction of poor people was considered subversive illustrations of national weakness. Postwar artistic tendencies such as Abstract Expressionism eclipsed art of social concern and depictions of the "American scene." New Deal art was forgotten and by the late fifties, the Projects were a dim memory. Early in the sixties, a few small exhibitions of New Deal Art promoted new interest. The very first one of these was of New Deal prints at the Ira Smolin Gallery in 1961. Later in 1966, I organized a comprehensive exhibit of New Deal Art at the University of Maryland, and at that time, I came across Karel Yasko at the GSA, who told me that he was establishing an inventory of New Deal Art. He had been an architect and he built a career saving New Deal Art at the GSA. By the early 1970's he was working to establish GSA ownership. He cultivated the press, wrote articles boasting of his new finds, restored New Deal murals on the cheap, such as the Shahn's, and staged exhibitions of project art. He almost did himself in by hijacking the University of Maryland's collection of New Deal art, that it had obtained on permanent loan from his own agency in early 1960s. Restored to power in the 1980's, he stopped a Christie's auction of prints in 1983 and demanded duplicate prints from museums that had received legitimate project allocations. Yasko died in the late 1980's, but his successors at the GSA continue to pursue anyone known to possess New Deal art. The GSA has recently published inventories of New Deal art in non-federal institutions, which I mentioned earlier, and has expressed a dubious legal theory of ownership based on ambiguous regulations from the old projects whose nature, policies, and motives, they have deliberately distorted. As for the 1999 Inventory, it contains catalogues of 42 institutions, yet I received 19 such allocations and their names have been on the public records since 1965. Why only 35% have been inventoried remains a mystery -- since the information has been on the public record since 1969. As to the GSA's legal theory of ownership my own opinions are based on what I have been watching for 30 years. First, the GSA has chosen to distort the historical reality of the various projects. It states that "During the Depression era, the WPA recognized the plight of artists and commissioned paintings and sculpture for the embellishment for public architecture, including federal buildings, post offices, and courthouses". This is comically untrue and is contrary to the Treasury's commissioning policies in the WPA Federal Art Project's relief projects. The text places all New Deal Art, all of the art programs, the Treasury's and the Federal Art Projects, under something it calls the WPA. This use of the initials "WPA" as an umbrella for all the other projects is a deliberate legal misrepresentation on the GSA's part to make its theory of ownership seem coherent, to finesse the differences between the projects' sparsely documented ownership policies, and to hide the many institutional differences between the Treasury Section, that procured art by contract, and the PWAP and WPA/FAP that produced art for a work relief wage. Consider how this impacts prints. The PWAP allowed for the established craft tradition of artist's proofs. It states in its regulations that the printmaker "shall be allowed to retain for his files, one print". The WPA Federal Art Project has no such written policy about proofs, and in practice, as its artists have often testified, the Federal Art Project permitted two or three proofs to be kept. By claiming that the PWAP was under the WPA, the GSA can of course apply PWAP's written regulations to the Federal Art Project and presumably claim all proofs other than one per artist as its own property. The GSA's more global claims of ownership are based on similarly dubious arguments. Works once allocated alone to institutions are dealt with differently. It acknowledges that existing written regulations state that an allocation is a transfer of title. However, printed on the allocation forms is the simple statement that if an institution involved no longer wants the art it has received, it should notify the Government of the fact. Allocations are therefore interpreted as "transfers of restricted title" and, although a request to return art to the government is a voluntary option, it understands it is somehow establishing "reversionary rights" to the government. The same theory, with a few added factors, such as tax support and private ownership, applies to loans, especially those curious permanent loans. Similarly, if a private institution has on its walls a Treasury or WPA mural and wants to destroy it, it's supposed to ask the GSA to conserve it and presumably, the GSA has the right not to and therefore, let it go without recourse to an act of Congress. The very best way of solving this is to cut through the bureaucratic nonsense and to seek an act of Congress ourselves. Fighting the Federal Government in court on such technical matters might lead to years of expensive wrangling that will end up at some obscure, administrative law judge at Washington upholding the GSA. As we know, they are currently circulating letters to people who have placed New Deal prints on E-Bay or TV's Antiques Roadshow. They are also sending legal notices to the various artists' organizations and museums and publishing these inventories. The best way to deal with this matter is to launch a direct, public challenge to the GSA's ownership position, stressing that New Deal art was paid for by the people for the people - not the government. If such a campaign could also get the GSA and /or Congress to recognize that enough New Deal art survives in government and private institutions to preserve its legacy, and that it no longer matters who owns the residue still in private custody, this unfortunate situation could be resolved in time for the 70th Anniversary of the start of the New Deal projects in 2003. Will Barnet: I happen to have been a part of the WPA for a short time. The thing that I would like to stress is that when I came here to New York 1931, it was the height of the Depression. I saw breadlines all around the city, dark streets and "To Let" signs in every rooming house and every apartment on Park Avenue. It was a very threatening situation. I worked at the Art Students' League during that period, became the Master Printer, and printed not only for the classes but for the artists who used to come in as well. My relationship with the WPA came about through Gustave von Groschwitz. He hired me because the prints they were making were coming out black and muddy, and generally in bad shape. Knowing that I was the Master Printer at the ASL, I was hired to check on what was happening with the printing process. Mr. Von Groschwitz also hired me as an artist, as he liked my work, so I had a double role, both as printer and artist. I was involved with the WPA from 1935 to 1936, I believe. The print editions we made were small, 25 at most. I have a print called An Old Man, which I did in the Bowery. As far as I know there are only two or three prints left out of an edition of about seven, one of them was up for auction recently. What the government did with the rest, I do not know. I printed many editions for the government, some of my own, most for other artists. The WPA revitalized the artists at that time. It was such a wonderful thing that the government gave this possibility at a time when people were literally starving to death. As a young man I was very proud to be part of it. I thought it was one of the great moments in US history, both socially and artistically. It helped artists to develop at a time when their options were basically non-existent. Sylvan Cole: I will now address this part of the discussion as a dealer in fine prints, which include prints done for the WPA. The WPA prints dealers offer on the market come from three basic sources:
I believe there are some thirty dealers in the International Fine Print Dealers Association who deal somewhat with WPA prints as part of their stock. Of those dealers, I have tried to figure how many we each have. I know at the moment I have something like 29 or 32 (I forgot to count them before I came here) for sale. I have two for sale here at this fair. Why do I only have two if I have so many? I have very few WPA prints that are really salable. Most of the ones in my inventory are priced at $200 or $300, and are not particularly appealing. I brought prints to the fair by Riva Helfond and Minetta Good, which are the two best WPA prints I have. One is $2,400 and the other $750 or $900. So, figuring there are thirty dealers with an average of about 30 WPA prints for sale and add some private dealers who also have WPA prints -- say 50 dealers in all -- so that's about 1500 prints on the marketplace right now out of the 250,000 to 350,000 supposedly produced. As far as the auction houses are concerned, they only have WPA material from time to time. Christie's and Sotheby's have very little interest in WPA prints right now. They don't have enough value to offer them for sale at their average $3,000 to $5,000 per lot. The smaller auction houses do offer WPA prints for sale, and frequently put them up in lots of 6 or 8. My guess is right now there are probably less than 100 WPA prints in the hands of the auction houses waiting to be sold. When we come to private collections, we only have two major private collectors, one of whom is on the panel, and then we have people who have a few here, and a few there, and bought the print because they like the image. I'm thinking there are 2,000 to 3,000 prints in the hands of private collectors, and it could be less than half that number. So, when we add this together: 1,500 with dealers, 100 with auction houses and 2,000 to 3,000 in private hands -- I end up with a high figure of about 3,600 to 4,600 WPA prints that are not in public institutions or federal depositories. So how much is all this really worth? Out of the thousands of editions produced by hundreds of artists working for the WPA only three artists did work which have sold in the market for more than $ 5,000!! Stuart Davis did one color lithograph and two in black and white, Louis Lozowick did two or three, and Raphael Soyer did one. I'm talking about the WPA artists and not the work produced before or after. If we follow my arithmetic, we have to arrive at an average value of a WPA print. I'm being very generous at $ 400, and I believe it may be less than that. If you go through the "phone book" the GSA sent us, you will see name after name you've never, ever heard of. Thus, 1,600 prints in the hands of dealers and auction houses, at a high average value of $400, comes to $640,000! And the high figure of 3,000 prints in private hands at the same value comes to $1,200,000. I have a feeling if the GSA could even retrieve 20 % of the WPA prints, it would cost many, many more millions of our taxpayer dollars. As a dealer, I have been custodian of many artists' wonderful work I think could produce something without worrying about the marketplace. I have cleaned them, restored them, I've sold them to many museums. There are enough WPA prints out there in public places that the "tax payers" will never, ever be deprived. And, as far as I'm concerned, for my government to put a shadow on me and say I'm dealing in "hot" goods, is very upsetting. David Mickenberg: As Director of a university museum that is based on an interdisciplinary study of the arts, that has a relationship with a faculty that is deeply interested in the 1920's, '30's and '40's American art history, that is interested in the dialogue and the discourse pertaining to how art gets created and what the role of federal sponsorship in the arts is, and an institution devoted to research relating the political and social implications of art created between World War I and World War II, the collecting of WPA prints is of central importance to what we do as an educational institution. The first large collection of WPA prints that came to the Block Museum of Art came from a woman whose name is Ms. Louise Dunn Yochim. Louise Dunn Yochim not only was an artist who worked for the graphics division in Illinois in the latter period of the WPA, but she eventually became the head of the arts curriculum in the Chicago public schools. She's now, I think, 93 and lives in Skokie, Illinois. On the last day in which she worked for the Chicago public schools, on her way out the door into her retirement, she passed by a garbage can, and in that garbage can, was a bunch of prints wrapped up, thrown out by the superintendent of schools. She just happened to see it, out of the corner of her eye. There were 75 prints, all of which were stamped as being part of the WPA. She went to the principal of her school and asked if she could have them. He threw up his hands and said "Sure". They remained with her, wrapped up in the original plastic wrapping, in her apartment in Skokie until she called me and asked if the museum had an interest in this. That was first of the large scale collections that have come to us. The Block has between 300 to 400 WPA prints that have all been collected in the last 8 years. And they have come to us through donations that make Louise Dunn Yochim's experience not atypical by any stretch of the imagination. They have come to us in trade by other individuals that have had their works. They come to us from a series of dealers from throughout the country, from Susan Teller to Sylvan Cole to Malbert to Lee Stone, who have specialized in that period and in the WPA. And in fact what has happened, what I'd rather do, rather than talk about what collections of the Block are, and for those of you who would like to see those collections, most of them are up on line on the museum's website, I would like to raise several questions pertaining to the ramifications of what the government has done. The first is that whereas it's very nice that the government is asking for all of these prints to go into public collections, what the government is doing is making the collecting of this work in museums a little dangerous and a little problematic. How are the museums supposed to de-accession works? We are museums, we don't collect blindly, we don't collect everything. In fact, it is fair to say that not everything deserves to be collected. Institutions, museums, have purposes behind their collections. Not every work of the WPA fits into the purposes of those collections. Whereas we acquire works with the idea of collecting in perpetuity, we also know that we would like to upgrade the quality of the collections. We have to trade those collections in order to get other works. How are we supposed to do that if there is no viable market in WPA prints? Second question. The tax reform act in '86 showed us what happens when there is no deductibility based upon the appraised value of a work of art. If you don't own a work of art, you can't have a tax deduction on it, because you don't have a clear title to it, which means that there is no incentive to giving works of art to public institutions. So how are museums supposed to collect works of art, how are people supposed to donate, if there is no incentive to donate? Three, what happens to those people who are still within the window in which the government can question tax deductibility. What happens to the tax deduction of the work if the government is claiming they didn't own it? What happens to Louise Dunn Yochim, who got approximately $100,000 donation, just of the top of my head, for her works if the government declares that she really didn't own those works? Fourth question, if one of the purposes of a museum is to show what happens in a broad spectrum of American art, and if there is no incentive to donate, how is a museum in Illinois, or in Kankeekee, or in San Diego, supposed to develop a broad based collection on the history of the 1920's and '30's if there is no market for those works, meaning that one of the primary ways that museums such as the Block, and notice, most museums, have of knowing what was going on in California during the WPA is not only to speak to the people and to scholars who are working in the field, not only to work with Liz Seaton in the scholarly community, but to talk to those dealers who have for years specialized in those areas and will work in terms of making those works available. If they do not have those collections, there is virtually no way for smaller institutions, and indeed larger institutions, to gain access to a broader spectrum of works. And, in fact, what you will find is that a majority of what happens in California will, if they're going to be donated at all, go into California collections and not be able to be looked at in a broad spectrum of the history of the period. If the government is asking, a fifth area, if the government, and this we probably already know the answer to, if the government is asking that all works be donated to public institutions and places in the public realm, is the government also making a concomitant commitment, really, to the preservation, care and upkeep of those collections, or are they passing that along to museums? That's something that especially museums in regional settings don't have the availability to do. So, one way of looking at what is happening in this discussion is the government's attempt to deny private ownership of WPA prints and to insure that there is no commodity value to those works, which goes against their basic premise that those works should come into a public setting. Hence you have, and I think what others here have been saying, a rather surrealistic enterprise. Franklin Feldman: For better or worse, in the United States', most important questions and indeed, many unimportant questions, finally wind up as a legal proposition. The United States government through the GSA, has claimed that it owns all of the WPA prints (and we're only dealing at the moment with prints, graphic art). The question is, what do they base that on? They have written a detailed, legal memorandum in which they relied on three provisions. One provision, the United States Constitution, which sounds very impressive. Article Three, Section Four, Clause Two. I was not acquainted with Article Three, Section Four, Clause Two, and all [it] says is that Congress shall have all the power to provide rules and regulations respecting government property, and nothing in the Constitution shall impair the rights thereof. Then they rely on two cases. The first case is the so-called Allegheney Case. The Allegheney Case basically dealt with the ability of a local municipality to tax federal property. It had nothing to do with the issue before us. And there, the court decided that the States did not have the right to tax federal property. The second case, is called the Steinmetz Case. The Steinmetz Case basically dealt with the right to recover a sunken vessel in the waters. I don't think that had a great deal to do with the GSA issue. And they have cited nothing else. They've also stated that the government cannot abandon property and there's no statute of limitations applicable. Well, let me put this in perspective. This is not a question of stolen art. All of this property is legally out there. The statute of limitations would normally be applicable to stolen art. In New York, the rule is called the "demand and refusal" rule, which basically means the statute doesn't run until the victim demands the return once he learns where the art is, and has been refused. The New York statute of limitations, which is three years, then starts to run. But this is not stolen art. This is a question of property that is out there lawfully. Now with respect to statute of limitations unrelated to stolen art, there are cases which state that the government is subject to the statute of limitations if the matter deals with private property, or the government is in competition with someone. Now, arguments could be made either way: is this private property that we're dealing with, or are the dealers and artists who may be in possession of this work, in competition with the United States? The government also claims that the work was "allocated." They have used that term because that's in the regulations but they subsequently define "allocation" to mean transfer of title. Now, they allocated work during the WPA years to non-profit organizations or tax supported institutions. The concept in the law is that once you transfer title, that's a complete divestiture. The subject has very limited exceptions and, in fact, you cannot prevent someone to whom you've transferred something in the United States from preventing the transfer again to a third party. It's known as the rule against alienation. It's a rule that comes from England. It's hundreds, thousands of years old. Now, once property is transferred, I cannot sell you my painting and say you cannot sell that painting at all. Once you own it, you own it. Now, there could be some limitations such as I could have a right of first refusal. If you want to sell your painting for a certain price, I have the right to match the price. That's considered a reasonable limitation. The government has consistently claimed that none of these rules apply to them, and from my point of view, this makes no sense. Now, let me give you some idea of the magnitude of this problem. There were about 270 artists involved in the graphic art program. There were about 12,000 impressions made, and each edition was limited to 25 to 50 copies. There were roughly 750,000 prints which were produced during the WPA Project. Now, I was curious to learn whether the artists signed something. I couldn't believe the government wouldn't have gone to the artists and said, "Here's the document you have to sign," because I would have assumed the document would have said "We own the property" or "We own the plate." I have just been able to obtain a copy of a wonderful PhD thesis prepared by a woman named Elizabeth (Liz) Seaton, for Northwestern in June of 2000. I've spoken to her, and I said "Wasn't there a letter saying you've been paid X amount or this is what our terms are?" She said she hadn't been able to find anything of that sort. I urged her to look again and she found something that I'll share with you in a moment that is very relevant. But three days ago, I spoke to Riva Helfond who's 90 years old and has a very clear memory. Number one, there was no signed agreement, absolutely, and I mean she said it in very forceful terms. I asked, "Well, how did you know when to report? Was there a letter, budget?" She replied, "As far as I can remember, there was a phone call, there might have been a letter, that I can work for the WPA." I said, "What happened when you were there? Did you sign in? Were you an employee?" Well, she doesn't know if she was an employee. "Yes, I did sign in. We were paid $ 21.50 per week, which went up to $ 23 shortly thereafter" and she added "Of course, we could live on that at that time." She recalls she was entitled to keep 3 to 5 prints. Now, this is relevant only because ownership deals with 2 things: the physical print, and who has the copyright, which is separate from the physical print. The law, since 1976 in the United States, has made it very clear that they are two different things. You can own the painting or the print and not own the copyright. But prior to 1976, actually the statute became effective in 1978, the law's unclear as to who owned the print. The law, basically in the second circuit, which is the New York circuit, went one way as other circuits went the other way with regard to who supervised the work and so forth. Well, it was pretty clear if you were a full time employee, probably the employer owned it if you were hired to do that. So there could be a substantial issue here as to the reproduction, the copying. But the GSA has not dealt with that issue, only "we own the physical print." Because that's important even though they get the physical print, that would not stop the artist, if he owned the copyright, or someone else to whom the artist transferred the copyright, from reproducing the image. Let me just share this with you. This is what Miss Seaton shared with me. It is odd but it's worth your hearing. This is 1939 correspondence. This is a letter written to Mr. Parker, who was Assistant to the Director of the Federal Arts Project by S. McDonald Wright, who was State Director of the Project in California. Basically, he says one of the artists wanted to reproduce one of the items on some related work for a book. He says, "I notice in your letter that you allow 3 copies of each print made by the artist to become their personal property, and they are permitted to sell them, give them away, exhibit them, or do whatever they wish with them. I did not know where you received this word, but this is not the policy of the federal office in regard to graphic arts." Since the reproduction rights of each print are the property of the government (he doesn't state how he comes to that conclusion), it would be impossible to permit the artists to sell their copies which they received. It is our customary practice to permit artists to obtain, at their own expense, two or three prints which they may use for exhibition purposes, and to be retained by them as a record of their work." Basically, this was signed by Thomas Parker, Assistant Director of the Federal Arts Project. Further letters, and the answers [are] the same way, "No way." The artist cannot sell them, cannot do anything with them except exhibit them for their own exhibition purposes. I think this is bureaucratic arrogance on the part of the United States government, quite honestly, and having worked for both the United States government as a lawyer and the New York State government as a lawyer many years ago, I can understand what bureaucratic arrogance is all about, and where it comes from. I agree with Mr. O'Connor, that probably the best solution is a private bill, a bill introduced in Congress. It doesn't even need to be passed, because I suspect, this is my personal view, that once a bill like this is introduced, and there's some publicity about the GSA, the GSA will backtrack, as they have started to, and not claim that all of the prints (and I have no idea of the magnitude) are their property, and they will not go after them. Hersh Cohen: I'm not a scholar of the period. I'm not an artist. I'm just a guy who is passionate about material from the Depression and I'm not even sure why, except that we know that the Depression, along with the Civil War and World War II, were periods that shook this country to its foundations. I'm excited by the material and have been for 25 years since I first saw it. When people ask me what I collect, I've often said, "Well, WPA art," but that really doesn't mean that every print has a WPA stamp. I think WPA art has come to be a generic term for art created during that period, and actually, the number of prints that I come across that have the stamps on them is very small in comparison to the overall output. But, I guess my job here is to talk as a collector, what is it that I like about the stuff actually created in the Federal Art Project? To me, it never made any difference when I bought a print whether it had a stamp on it or it didn't have a stamp on it. The great majority of the material doesn't. I just respond to the image, and if it's a social realism image, that's terrific. That's what I love. There are many prints I've seen with the WPA or Federal Art Project stamp that I've passed on because they might be a landscape or something without particular social realist impact. But, I can make an analogy in finding a print with a stamp that, if you have ever collected anything of any type, for example 19th century paintings, and you found one that maybe had an exhibition label on it, that is an exciting thing. To me, the stamp on a WPA print means that his or her peers accepted the artist in their day, which is nice. It means that somebody cared enough about the art to create it and have it documented. What I really love about the thirties' art, and what enabled me to collect it, was that there were so many terrific artists who were just forgotten because the art never sold. There was no market for it. I've referred to an artist named Maxine Sealbinder who did a print I love called Housing Wanted. How depressing is this? It was an edition of six and this was number two of six. How pessimistic must an artist have been to only make an edition of six? There are artists who have been forgotten today that I believe, as a collector, I've done a nice thing by collecting their material and showing it whenever possible. Artists like Don Rico, Kalman Kubinyi, Dayton Branfield or Paul Weller, these are wonderful artists whose work is basically out of sight and out of mind, and yet, it's a terrific body of work. It will all wind up in a public collection some day, but I believe my love and collecting of the WPA-type material does a service. I consider it something good that I've collected WPA material and put together works that other people can look at, that they might not have been able to do otherwise. QUESTIONS AND ANSWERS GG: I would like to start the ball rolling by asking Francis or Franklin, if you did introduce a bill in Congress demanding that the terms of government ownership versus private ownership be strictly defined, what would that bill contain, what would you ask to be done in the bill? FF: The minimal amount, which is that all prints out in the public, not part of a government facility, which have not been stolen from a government facility, shall remain to be the property of the possessor or the owner, other than the United States government. A separate issue might be about the copyright. But certainly, with respect to the print itself, I would simply have a brief bill that would confirm ownership of everything that's out there. FO: I would add to that text that it should include all works of New Deal art, not just prints. Murals, easel painters, monumental and pedestal sculpture, all sorts of drawings and designs, an enormous amount of material done under these projects, all over the country. And there would have to be some blanket statement by Congress to the effect that all of this is the property of the individuals or the institutions that possess it at a certain given date. GG: This is Jacob Kainen who was one of the WPA printmakers. Jacob Kainen: Francis O'Connor said that it's a good idea for all branches of the WPA to be considered at this time. I want to talk about what happened to the paintings. The paintings, as you may know, were auctioned off to the highest bidder, but the art world knew nothing of it. Brehon Somervell the Colonel, did a dastardly deed. He sold or auctioned off works to a heating contractor who used the paintings to wrap around hot water pipes. I also have a letter from Joseph Solomon dated January 4, 1944. He said, "At last I know what happened to the WPA paintings." He went to a junk shop on Canal Street and saw piles of paintings, unframed of course, and he ran through them. They were sold for $ 5 each, so he picked up some of his paintings there. Now, there's a man called Ira Smolin that Francis mentioned. Ira Smolin phoned me and said he was going to Riker's Island in about 1950 and he saw men and woman, who were patients, drawing on sheets of paper, and on the backs of the paper were WPA prints. So he went to the head of the hospital and said, "That isn't good to draw or write on, you can't erase because the paper's too soft and mealy. I'll give you fine bond paper to give to the people, and they could draw on that. If you let me have the prints, I'll give you a little money for them." The doctor agreed and he got all of the prints. Now, if the paintings were thrown away like that, Smolin said that he got two Rothko's, a Gottlieb, and a couple of other paintings, the government has renounced any claim to prints or paintings, or any work that was done in the WPA. I think that it's hopeless to try to straighten it out because all this neglect can't be changed by a rule, not by Congress, or anyone. This stuff is so neglected that they can forget about it. (NOTE: Jacob Kainen died March 19, 2001.) Question: Has the GSA tried to do an inventory of paintings from the Projects? FO: That's one of the mysteries. The inventories it has done seem to be mostly prints, whereas the 119 institutions that received allocations received allocations in almost all the art forms. It's unclear and there is no consistency. WB: Is it possible that you can identify the prints fairly easily because of the stamp but you can't identify the paintings? FO: That is true. On the other hand, many of them do have little brass plates on the frames or on the stretchers indicating their provenance. In some cases, there are recognizable inventory numbers that we know were used by the Projects. We can't always find the key to the inventories, but we can recognize the inscriptions on the back. Question: What motivated the government at this time to try and reclaim the works? GG: Well, they have been at it for a number of years, quietly. It's just that I think they've been more concentrated. FO: As for motivation, I watched this from the beginning in the late 60's. Almost as soon as I did an exhibit of New Deal Art at the University of Maryland, Karel Yasko was writing me a letter telling me about his inventory. We watched this very carefully. I left the University of Maryland around 1970, and went to the Smithsonian's National Museum of American Art for two years, and I remember Joshua Taylor and I used to pass the letters from the GSA on this subject. And we came to the conclusion that this was simply a bureaucratic process. SC: I know, I was involved with the withdrawal of the prints from the Christie's sale back around 1981, '82, and when those prints were withdrawn, it was done by the federal Attorney General in New York. At that time, I called Washington and Yasko's office. At that time, I was running the Associated American Artists, and I told him I had WPA prints, and I'd love to clarification, and what should I do? They said, "Oh Mr. Cole, we know about you" and that was the last word I heard. Then, nothing has happened until January, or last June, when a Swann auction man, Todd Weyman, was out in Minneapolis and appraised two WPA prints, and then he got the first letter that I saw. It was 1999, and it just said "We want you to be aware that those are our property." The second was after Mrs. Strasnich put a Harry Shokler into an on-line auction. They got an e-mail from the GSA saying, "Hey, take it off auction. It's our print and send it to us". That is the only case of "sending it to us." And the interesting thing is that Mr. and Mrs. Strasnich had bought the Shokler from the artist, so it wasn't their property to begin with. And the question now is how can they prove that the Riva Helfond that I have in my booth for sale isn't one of the proofs she had and eventually put on the marketplace? You know, this whole thing gets so convoluted. What are they going to do about all the unstamped prints of which there are thousands and thousands? Question: Isn't it for the government to prove that the transfer didn't take place properly? FF: I'll answer it this way. In their regulations, they use the word "allocation." They then define "allocation" as transfer of title, and they said we've allocated. But then later on, they say even though there's a transfer of title, we have a reservation of interest, but they don't base it on anything. That's in their memorandum. You want to say something to put this in perspective. The GSA has backed off to some extent. I think we should all be aware of this. In latest memorandum, which they've issued in the last month or so, the last paragraph, let me read this to you, [it] was not in the earlier paragraphs. It says this position . . . it says "Impact on custodians of WPA artwork. This position, namely that they own everything, has no immediate impact on custodians of WPA artwork. The GSA is attempting to catalogue all works of art, which we're presuming include painting, created under the WPA that are located in non-federal repositories, but has no intention of reclaiming any of these works unless requested to do so by the custodial agency or institution." Well, I can't believe that any institution is going to ask the GSA to come by and pick up your work. So I think this is really a tremendous backtrack. DM: Just to add on to what you just brought out about Wisconsin. There was a sale of prints to the Metropolitan in 1940. There were sales of prints in '41 and '43, where the government did sell and get back financial reward for that, and thereby created a market, if you will, for the works created in the WPA, and did transfer title at that point to the Metropolitan. That's the thing David Kiehl has researched. FF:There's another relevant question that hasn't been discussed here. We're talking about graphic art . . . the graphic art consisted principally of lithographs and etchings. The lithographs, after they were executed, were erased with levigator so there is no other evidence of it any longer. But the etching's done on a plate, and I was curious who owns the plate? Where are the plates? Now, I asked Riva Helfond but it's like asking Moses where are the original tablets. She doesn't know. Either they were destroyed or they're sitting in the United States archives? For what purpose? They're not being exhibited. WB: Etching plates is a mystery. That's all I can tell you because all of my etching plates have disappeared, and I don't know where they are. That's the truth. FO: I've seen documentation clearly stating that the plates belong to the federal government. I've seen that in writing in the WPA and the PWAP. On the other hand, I believe that they were probably gathered somewhere in New York City, I can't speak for other states, and were simply destroyed because there was an enormous amount of surplus property sold off. I suspect, all of that nice copper was useful to someone, and it was simply melted it down. I have never, for instance, seen a cartoon for a WPA mural. All of that stuff was taken away as government property and I'm sure in some warehouse somewhere and then destroyed. You cannot imagine the administrative chaos between January and June of 1943, when the projects were disintegrating, when the entire thinking of the federal government was toward the war effort, and Cahill and his few helpers like Mildred Holzhauer, were in Chicago desperately trying to give the art to anyone who would take it before they simply had to scrap it. Eventually, the head of the treasury section came along and said I'll take whatever is left just to keep it on interest because they had a little longer life span than the WPA. Question: I have some WPA prints, one with stamp, one without. What does this mean? SC: I think stamps are just labor intensive. They just didn't stamp everything, some whole editions might not have been stamped, or maybe the first few. I remember Gustav Von Grosswitz telling me he ran the New York WPA, and he had a salesman that went around to hospitals, schools, anyplace that he could get this material disseminated. Whether they didn't have time to stamp all the works or maybe they just stamped the first few samples that this salesman carried, I don't know. Question: As a collector, are you reluctant to have shows? HC: I never thought about it, I didn't know it was an issue until this all came up. Audience: And now? HC: I always thought it was kind of cool to find a print with a stamp on it. Question: Can I put my collection on show, with and without stamps? SC: I wish you'd have the show, because somewhere along the line, we've got to have a test case. Question: If the GSA were really after prints, they would be here at the fair pulling prints out of the racks? GG: Well, as far as we know, they might have some sneaky operatives out there. Question: Is there any legal significance to the fact that for 40 years, GSA did nothing? FF: Well of course that's relevant, but the GSA's position is that the statute of limitations doesn't apply to us. Therefore, it could be 600 years. It's ridiculous, because cases have said that in certain situations, the statute of limitations does apply to the United States government, where there's private property involved or where there's competition with the United States. And I would think those situations apply here. I do not believe they would institute a lawsuit. I think in light of this most recent state, they, and you ask me, I would say go ahead with your suit, write to The New York Times, let The New York Times say there's going to be an exhibition on a certain date. Publicize, absolutely. And you will see it will end. They will not send someone. Question: Has the GSA ever had a store on 42nd Street? FO: No, never. That is one thing they would have never have done. No record of that whatsoever. GG: I want to thank everybody on the panel. 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