Jack Shadbolt: A case study in copyright culpability.

Recently while writing an article for publication about the installation of B.C. artist Jack Shadbolt’s painting Tree of Life at UBC Okanagan, I was obliged to secure copyright approval to reproduce an image of the painting to be included in the article.

Effective September 23rd 2011, copyright for works of art created by Jack Shadbolt (1909 -1998) was transferred to Simon Fraser University from the Estate of his late wife Doris Shadbolt. The copyright transfer did not include (a) those works for which a copyright had previously been granted by Jack Shadbolt during his lifetime or (b) those works for which a copyright had previously been granted by Jack Shadbolt’s estate or executors. Consequently copyright release from SFU was required for exhibition or reproduction for all works of art by Jack Shadbolt unless they fell into categories (a) or (b) above.

To facilitate copyright release I contacted Christina Hedlund, Collections Manager, SFU Galleries, and my request for release was approved, in this case without charge. In discussions with Christina I inquired as to what SFU’s policy was on the application of copyright, held by SFU of Shadbolt’s works. I was informed that the university did not have the resources, financial and otherwise; to monitor reproductive use of Shadbolt’s images or apply copyright law and as a result copyright royalties essentially went uncollected.

According to the Canadian Artists Representation Copyright Collective ( CARCC)
‘artists may exploit different uses in order to generate income and to finance their future artistic production. This income is provided by the payment of Copyright royalties. These royalties stem from the permission granted by an artist to a user (museum, art center, publisher, producer, etc.). This permission is called a “license” and the granting of a license is done by signing a contract which confers certain rights to the user in return of a compensation which is usually, but not always, monetary’1. CARCC also mentions that ‘Copyright is a private property right, similar to that which pertains to a building or land, except that this right applies to the result of a creative intellectual effort, like a sculpture, a painting, a theatre costume, a blown glass vase, a play, a novel, a symphony, a film etc …’2 There are several options available to manage copyright income, the creator can manage their rights themselves, or the creator, as a member of a professional association can accept that his/her works are covered by a collective agreement between the professional association and potential user and finally the creator may have his/her copyright negotiated and managed on his/her behalf by an agent or a copyright management society.

Under article 41.23 (1) General provisions of the Copyright Act, the copyright holder is not obliged to protect and enforce his right and application of his financial interest is therefore discretionary. ‘Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act.’3

It would appear then that SFU, as the holder of copyright, has no legal obligation to collect copyright royalties of Shadbolt’s works even though the Copyright Act gives them the legal authority to do so. The Act essentially sanctions the copyright holder, SFU, to exploit a legitimate revenue source and is it not incumbent of SFU to manage, cultivate and maturate that revenue source? The ethical implications of a generous financial and artistic gift from the Estate of Doris Shadbolt, left unexploited, speaks I think, to the indifference to such generosity, on the part of SFU. One can only assume that Doris Shadbolt’s magnanimity was partly predicated on the fact that her husband’s artistic output would be protected by the collection of copyright royalties. Her gift in essence consisted not only of her husband’s creative output but also the financial means to maintain it, a concept which appears to have escaped the notice of the administration at SFU.

Reproduction of images of Shadbolt’s paintings is rampant in the resale art secondary market, especially in printed auction catalogues and on-line digital catalogues. The Heffel Auction House prints several thousand auction catalogues for each of their two live auctions and each catalogue may contain several reproductions of different Shadbolt works offered for sale. Their monthly on-line auctions may also contain several images of Shadbolt works. Other auction houses also produce both on-line and printed copies of auction catalogues which may also contain reproductions of Shadbolt images. One would think that SFU, as holder of Shadbolt copyright would be vigoursly enforcing its legal right to collect copyright royalties, however this appears not to be the case.

How do auction houses circumvent having to pay copyright royalties on reproducing Shadbolt’s works?
The Copyright Act does permit exceptions to copyright infringement under what is known as Fair Dealing where for the purposes of other than a commercial enterprise such as research, private study, education, parody or satire, such activities do not infringe copyright.4 Criticism and news reporting also do not infringe on copyright, however I don’t think one could argue successfully that auction houses do not infringe copyright under Fair Dealing. It appears that the Heffel Auction House under its Auction Terms and Conditions of Business5 lists several conditions under which it, the auction house, protects itself from copyright infringement, as listed below.
Description of Lot. 6.e.
The Auction House makes no representations or warranties to the Buyer that the Buyer of a Lot will acquire any copyright or other reproduction right in any purchased Lot.
Warranties and Indemnities.2.a.
The Consignor warrants to the Auction House and to the Buyer that the Consignor has and shall be able to deliver unencumbered title to the Lot, free and clear of all claims; (including claims of copyright infringement)
11. Photographs and Illustrations. Preamble. a., b.
In consideration of the Auction House’s services to the Consignor, the Consignor hereby warrants and represents to the Auction House that it has the right to grant to the Auction House, and the Consignor does hereby grant to the Auction House, a non-exclusive, perpetual, fully paid-up, royalty free and non-revocable right and permission to:
a. reproduce (by illustration, photograph, electronic reproduction, or any other form or medium whether presently known or hereinafter devised) any work within any Lot given to the Auction House for sale by the Consignor; and
b. use and publish such illustration, photograph or other reproduction in connection with the public exhibition, promotion and sale of the Lot in question and otherwise in connection with the operation of the Auction House’s business, including without limitation by including the illustration, photograph or other reproduction in promotional catalogues, compilations, the Auction House’s Art Index, and other publications and materials distributed to the public, and by communicating the illustration, photograph or other reproduction to the public by telecommunication via an Internet website operated by or affiliated with the Auction House (“Permission”). Moreover, the Consignor makes the same warranty and representation and grants the same Permission to the Auction House in respect of any illustrations, photographs or other reproductions of any work provided to the Auction House by the Consignor.
General Conditions.D.
8. The copyright for all illustrations and written matter relating to the Lots shall be and will remain at all times the absolute property of the Auction House and shall not, without the prior written consent of the Auction House, be used by any other person.

So it appears that when the consignor consigns a work, the copyright does not accompany the sale, the consignor warrants that the lot is free from all encumbrances (including copyright royalties), reproduction rights are given to Heffel and copyright of all illustrations becomes the property of the auction house. In other words Heffel avoids the issue of copyright infringement by essentially placing the legal responsibility for compliance with the Copyright Act on the consignor. Most consignors of Shadbolt works would, other than SFU, not hold copyright and therefore not have the right to transfer copyright for illustrations to Heffel and would therefore be doing something illegal.
This raises issues regarding the possibility of legal action by SFU, as copyright holder, under the Copyright Act, against consignors who do not hold copyright to artistic works by Jack Shadbolt.

I think SFU Galleries’ apparent inaction in enforcing the collection of Shadbolt copyright royalties is indicative of a general malaise which permeates the Canadian art world and tends to encourage, at best an indifference to and at worst the perceived irrelevance of artist output. Inaction is tantamount to acquiescence. I would think that SFU Galleries as the repository of some of Shadbolt’s best works should show leadership in this area and vigoursley defend the rights of Canadian artists.If SFU is not interested in actively collecting Shadbolt copyright royalties they may want to take advantage of third party copyright management society as mentioned above.

Perhaps the Copyright Act should be changed to include the enforcement and collection of copyright royalty fees as mandatory.

1 http://www.carcc.ca/en/Droits%20d’auteur%20101 Accessed Sept 11th 2017.
2 Ibid.
3 http://laws-lois.justice.gc.ca/eng/acts/C-42/page-21.html#h-55 Accessed Sept 11th 2017.
4 http://laws-lois.justice.gc.ca/eng/acts/C-42/page-9.html#h-26 Accessed Sept 11th 2017.
5 http://www.heffel.com/auction/Terms_Defined_E.aspx Accessed Sept 11th 2017.

Homeless Jesus. The Aesthetics of Kitsch.

Several weeks ago my wife and I had the pleasure of attending a wedding at Holy Cross Cathedral in Vancouver. After the ceremony, as we were exiting the foyer, along with others in attendance, we were confronted by an almost life size bronze statue of a person, covered in a blanket, lying on a bronze park bench. His bodily features were hidden except for two feet, each with a lacerated wound, protruding beyond the lower edge of the blanket. The statue, known as Homeless Jesus by Canadian sculptor Timothy Schmalz, was placed on a narrow landing, directly in front to the main doors, several steps below the cathedral entrance and several steps leading up from the sidewalk below.

‘Homeless Jesus’ is a cast bronze sculpture depicting a man covered in a blanket sleeping on a park bench, each of his feet showing evidence of a deep gash. It is one of several such statues that have been placed at various locations throughout the world, usually near a church or cathedral. Its placement has been rejected at locations such as St. Michael’s Cathedral, Toronto, St. Patrick’s Cathedral, New York and the London’s Westminster borough. It was installed in front of Holy Rosary cathedral in 2017.

The controversial statue is also available in various sizes including the convenient resin stone cast table top model at 5 x 9 ¾ inches and the handy travel size model also resin stone cast at 2 ¼ x 4 ¾ inches, each is adorned with a realistic bronze finish.

According to the staff at Holy Rosary Cathedral, the cathedral has been under siege by panhandlers and police have been called to an incident at least once a day, on a weekly basis. “We have people coming in here and they’re in another world and they’re either doped up or drunk up or else they’re in some psychological impairment.” said Father Dion. The situation has become so bad that women who enter the cathedral are in the habit of tightly holding onto their purses during mass.

In 2008 Darcy Jones 43, a crack addict and homeless person of some 20 years, attacked 81 year old parishioner Dr. Peter Collins, inside the cathedral foyer, after the two men were seen leaving together. Dr. Collins had been giving Jones $5 a day for several days. As the elderly man reached for his wallet to give Jones money, Jones pushed Dr. Collins to the ground, grabbed his wallet, removed $40, gave the wallet back to Dr. Collins as he lay on the ground and absconded down the street.The incident was recorded on video by one of the cathedral’s security cameras.

In 2013 Schmalz’s statue of Jesus entitled ‘Whatsoever You Do’, was stolen from outside the Church of Stephen-in-the-Fields in downtown Toronto and later returned with a ‘sorry’ note. Perhaps the thief had an epiphany when he realized that the statue was not made of bronze but resin and consequently did not have any value on the scrap metal market.
The resin sculpture was going to be converted to bronze once the artist and the church raised enough money.

The problem I have with Schmalz’s statue is that is a poser, akin to washing your hands with gloves on. It is desperately pretending to be something that it is not, it is kitsch: as Roger Scruton has observed ‘expressing fake emotions, whose purpose is to deceive the consumer into thinking he feels something deep and serious, when in fact he feels nothing at all’.

As Scruton has also noted, the Czech novelist Milan Kundera made a famous observation. “Kitsch,” he wrote, “causes two tears to flow in quick succession. The first tear says: How nice to see children running on the grass! The second tear says: How nice to be moved, together with all mankind, by children running on the grass!” Kitsch, in other words, is not about the thing observed but about the observer. It does not invite you to feel moved by the doll you are dressing so tenderly, but by yourself dressing the doll. All sentimentality is like this – it redirects emotion from the object to the subject, so as to create a fantasy of emotion without the real cost of feeling it. The kitsch object encourages you to think, “Look at me feeling this – how nice I am and how lovable.”

Schmalz corrupts moral truth to deceive the viewer into thinking that he feels fake feelings of pity, righteous indignation and schmaltz, feelings I would more correctly describe as the triumvirate or the holy trinity of schmaltz (pun intended). Some viewers may be conned into feeling sorrow and compassion caused by the sufferings and misfortunes of others, (There but for the Grace of God, go I.) while others may be conned into feeling anger at the plight of the homeless without feelings of guilt, while others may be duped into feelings of exaggerated sentimentalism.

What makes ‘Homeless Jesus’ especially troublesome is that it intentionally inveigles the viewer by conflating Christian imagery with the demi monde of popular culture to venerate bupkis. It is a placebo, a bland simulacrum worthy only of contempt.

The Recalcitrant Rembrandt.

Unknown Portrait. Oil on canvas. 
48 x 37 cms.

As most art historians will tell you historic paintings often take on a life of their own. They exist over time, are hesitant about revealing their true age, have distinct personalities, are nomadic and sometimes deliberately mask their origins and the nature of their true character and identity.

This perception I think could be applied to the two paintings illustrated, one perhaps has a more respectable art historical pedigree than the other but both are essentially the same image of an old bearded man wearing a cap.

My client told me that he had inherited the painting on the upper right from a recently deceased German relative and that he remembers seeing the painting as a child. Au verso of the painting in cursive script are the words Rembrandt Orig. 1631 and the remains of a label. He did not know anything else about it and wished to have it appraised for fair market value.

Bust of a Man with a Cap. Oil on oak
 48 x 37 cms.  Attributed to Jan Lievens.

The painting on the lower right, formerly known as Rembrandt’s Father or Rembrandt’s Brother was acquired from the E. Habich, Kassel Collection in 1891 by the Gemaldergalerie, Kassel, Germany. It was previously consigned to auction from the Freiherr von Friesen Collection and sold at the March 26 – March 27 1885 Heberle Keulen (Moore’s Art Gallery) auction to Edward Habich, Kassel. It is dated after 1630, thought to have been painted by Rembrandt and was listed and illustrated as Rembrandt’s Father (Br 78) on page 70 of Rembrandt Paintings by A. Bredius and H. Gerson. (1971)

In 1986 the painting was re-assessed and attributed to a contemporary of Rembrandt’s named Jan Lievens (1607 – 1674), the re-assessment was partially based on the fact that ‘The author of the painting seems to have worked from a number of early Rembrandt etchings, which date from the 1630’s’.

My intent here is to avoid traditional methods of art historical inquiry to suggest a plausible socio-political identity of the unknown painting, although I allude to a methodology of comparative connoisseurship only to contextualize my theoretical approach. I want to frame these images as descriptors in terms of a socio-political determined character and context, that is, to make ideological connections between the known and unknown as signifiers of citizens and denizens.

Guy Standing has remarked that the denizen as distinct from the citizen does not have full citizenship but has the status of a ‘resident alien’. Denizens may be considered nomadic, circulatory and without the rights and privileges associated with full citizenship and this concept according to Standing is useful ‘in delineating what people can and cannot do in society’. Denizens are expected to behave as good citizens and are susceptible to expulsion if they do not demonstrate the behaviour associative of the citizen.

The painting attributed to Jan Lievens appears to demonstrate all the attributes required to establish permanent and prolonged art historical residency. It has a traceable pedigree, is recognized by society as a cultural artefact and is imbued by the state with respectability and civility. It reflects its social status as a full citizen member of society. In contrast the unknown painting is of unknown origin, undocumented, without verifiable provenance and of dubious lineage. Its status as a denizen tends to confirm suspicions of fraud and subversiveness.

Claude Breeze: Hope and Despair in Vancouver.

Claude Breeze standing beside Museum Piece: Genetic Problem Prototype No. 5 1-6 on the deck attached to his home, 12640 Old Yale Road, North Surrey, B.C., c 1969-1970.

In an abstract entry numbered 4909 from Art and Architecture in Canada: A Bibliography and Guide to the Literature to 1981. by Loren Lerner and Mary Williamson the authors summarize an article by Barry Lord entitled From the ‘Deck’ at North Surrey: Landscape and Figure in the Art of Claude Breeze which appeared in Artscanada no 24 (Aug-Sep 1971). Their comments include the following “The universality of his work derives its authenticity and power from the artist’s direct experience of the Canadian West Coast and from what is described as a peculiar combination of hope and despair in Vancouver”

In his article Lord, when commenting on the supeficiality of the tourist ads that conflate the natural splendor around Vancouver with tourism, observes “It is the glory and the shame of the city that almost everywhere in its streets you can lift up your eyes and behold not the hills but precisely the conflict between a magnificient natural setting and the human effects on its gross exploitation”.

Lord’s article surveys Breeze’s artistic output from 1962 -1971 for an exhibition entitled Claude Breeze 10 Years which was held at the Vancouver Art Gallery, Sept. 29 – Oct. 24th 1971. Most of the work referenced Breeze’s signature compositions which featured the figure in the landscape, however the only sculptural piece included was that shown above.

Within the conxext of the anthropocene, Breeze’s paintings speak to the health and sustainability of the landscape as an important determinant for human survivability
and his contorted and somewhat tortured figures personify an ecological and empahatic relationship with their environment. His use of a sculptural medium is, essentially to represent human heads suggestive of human life long since expired, encased in vitrines resting on plinths. They are remaniscent of a museum exhibit curiosity, designed to elicit similar revulsion one might endure on seeing jars of formaldahide containing specimens of deformed or maladaptive humans.

Perhaps the sculpture references future human sustainability, attainable only within the artificially constructed environment of the vitrine, divorced from the natural environment.
Lord’s insightful article frames the imagery in the exhibition in terms of a conflict between the natural environment and the constructed environment but does not offer any solutions to the conumdrum.

Contemporary writers such as Suzi Gablik most recently in her book The Reenchantment of Art has suggested that ‘we need to disolve the dispassionate partriarical consciousness, which has become increasingly maladaptive to the natural and communal world’. She further observes that a ‘remythologizing of consciousness through art and ritual is one way that our culture can regain a sense of enchantment’.

Perhaps we need to take her advice, that is to re-enchant our understanding of the natural world as a necessity for long term sustainablity and survivability.That is to re-mythologise the idea of the magnificient machine, called Earth whose workings we do not completely understand and perhaps never should in order to guarantee our survival. Would it not make our world a more exciting place to live in if we did not understand all its extraordinary functionality?
But wait a minute, are there not traditional First Nations and other indiginous myths which speak to the relationship between human survivability and the natural world?

Tree of Life by Jack Shadbolt finds new home at UBC Okanagan

Tree-of-Life-shadboltYes, dear readers, art is complicated, referential, reflexive, often difficult and like nuclear fusion is best left to the professionals.

A case in point is the placement of Jack Shadbolt‘s painting Tree of Life, which was recently installed in the atrium of UBC Okanagan Reichwald Health Sciences Centre, the home of the Southern Medical Program (SMP) and the fourth site in UBC‘s MD Undergraduate Program.

Dr. Allan Jones, Regional Associate Dean, Interior commented that ―The Tree of Life has become a showpiece for us all to enjoy and feel inspired.‖ and Professor Deborah Buszard, Deputy Vice Chancellor and Principal remarked “We are truly honoured to display this beautiful work of art on our campus—it is a lasting legacy of Mr. Shadbolt and his many contributions to Canadian art, education and history during his lifetime”.

“It is just so massive,” said Susan Belton, the curator of the campus art collection, “Your response is demanded. But it is also so lively and colourful, one must fall in love. Art often draws opinions and criticism, but this work seems to touch everyone who sees it.” (?)

Such mundane and anodyne comments belie a deeper understand of the painting necessitated by the controversy surrounding its location, a controversy largely attributed to the curators not doing their homework. (D -, must do better)

The title is taken from an annotation provided by English artist William Blake (1757 – 1827) which appeared with others, in a blank space on the right hand side of his last illuminated print dating from1826-27, entitled Laocoon. Jehovah & His Two Sons, Satan and Adam. The annotation reads “Art is the Tree of Life. Science is the Tree of Death.”

When Shadbolt once described the piece as “art paraphrasing nature” no doubt he was referencing this annotation and paying homage to Blake, a fact that would have not been overlooked by those who were familiar with art history generally and Blake‘s work in particular.

So when optometrist, Dr. Allan Jones described Tree of Life, in the context of a medical science facility, as “a showpiece for all of us to enjoy and feel inspired” was he asking us to enjoy and feel inspired by the difference between Art as Life and Science as Death?

When Susan Belton, wife of Dr. Robert Belton, Associate Professor Art History, UBCO, remarked “it is also so lively and colourful, one must fall in love” was she romanticising about the tragic sentimentality, one must feel, with the death of love or was she ruminating on the visual imperatives of colour, intrinsically speaking?

When plant scientist and strawberry breeder Professor Deborah Buszard described the painting “(as) a lasting legacy of Mr. Shadbolt and his many contributions to Canadian art, education and history during his lifetime.” was she aware of the fact that this lasting legacy rejects science (including plant science) in favour of art?

Installing an artwork which venerates art as life over science as death in a medical science facility is perhaps not wise and somewhat ironic. It‘s clearly uninformed placement emphasises Shadbolt‘s affirmation as to the supremacy of art and over science, that is to life over death.

One wonders if medical students and others casually walking by the painting might be thinking maybe I should drop the sciences and focus on the humanities; UBC, think about it.