Erik den Breejen walking in front one of the paintings in question, “Smile II” (2011), at his Freight + Volume opening last month. (photos by Kees den Breejen, courtesy the artist)
It’s a cruel world that makes a thief out of an adoring fan. Artist Erik den Breejen is a keen Beach Boys fan and one who knows, now, what the back of a beloved hand feels like.
Eager to greet the release of the long-buried 1966 album, Smile, Erik produced a series of word collages which incorporate blocks of the lyrics into wave and beach-themed constructions. His paintings made a tiny splash back in December when they debuted at Freight + Volume.
Reviewed by Charlie Finch for artnet.com, they were deemed “pretty darn cute” (take that as you will) and the proud artist enlisted Finch’s and Freight + Volume’s help in contacting Beach Boy lyricist Van Dyke Parks. His hero responded swiftly with a cease and desist letter.
“They seemed prepared to fight,” Freight + Volume owner, Nick Lawrence is quoted as telling artnet. “Van Dyke was personally offended … he seemed upset that he wasn’t consulted ahead of time about the show, which is a valid point. But in terms of fair use, I think it’s a bit of a stretch.”
Sadly it’s not. Sure it’s mean. But copyright law is ruthless and does not suffer homage gladly.
Look at it this way, according to Charlie Finch F+V gallery manager Philip Dmochowski, “said that the most expensive and largest den Breejen goes for $12,500 and that Brian Wilson devotees have already bought a few for their rec rooms.” Most of us will notice two things: 1) den Breejen is selling at emerging artist prices, and 2) people are buying these because they are “Brian Wilson devotees.”
Number one is why this story is sad. den Breejen is just breaking into the market; his enthusiastic pastels are not likely to usurp the Beach Boy’s market for their lyric sheets. But then there’s number 2.
Number 2 is why Parks or his lawyers felt they had to sue: they don’t want any one selling anything under the Beach Boys umbrella (pardon, please, the pun).
Lawrence estimates that Parks’ lyrics are in a little over half of the series. They are in snippets and not straight text. Says den Breejen:
“I don’t even know if people read the words in my paintings that much, since they function on a visual level. However, it is important to me that they are there, both as an initial inspiration and a cultural reference point. But it is just that — a reference point.”
It is perhaps telling that den Breejen is not ignorant of copyright law, and has, in fact, given his case some thought.
“I feel like I am very clearly in the transformative fair use area, however, the people who protect copyrighted music are fierce. The author claims piracy and exploitation, which is kind of a stretch. Most of the appropriation art cases I know of involve the (re)use of copyrighted images. I’m not aware of any precedents for turning copyrighted words into images, which makes it potentially interesting from a legal point of view … ”
I must say, the very fact that den Breejen speaks so clearly about “turning copyrighted words into images,” says a lot about how he could conquer with a fair use defense if it came to that. Distinguishing the “purpose and use” of your derivative work from that of the original is key.
But a wise lawyer would tell him to steer clear of any statement that would suggest his work is advertising the original work. Copyright owners HATE it when you take on their advertising for them: that would be proof of market confusion.
In any case, den Breejen and Freight + Volume are looking to settle the matter in out-of-court discussions with Parks.
“I’m pretty wary of a legal battle, especially with one of my heroes,” says den Breejen.
