So Sue Us

Why the Portlandia statue failed to become an icon.

This story isn't about her.

Rather, it's about the nation's second-largest hammered-copper statue, Portlandia, which turns 30 next year. And about why the 6.5-ton, trident-wielding lady based on our city seal keeps such a low profile.

You would think the image of Portlandia would adorn postcards, photos and T-shirts. She doesn't. That's because her maker, Washington, D.C.-based sculptor Raymond Kaskey, has, over the past three decades, often threatened to sue those who dare use photos or illustrations of Portlandia for commercial purposes.

That's possible thanks to a policy adopted 30 years ago this week by the Metropolitan Arts Commission, now known as the Regional Arts & Culture Council, when it voted to allow artists to retain the copyrights to their publicly purchased artwork.

"It was a forward-thinking decision," says Kaskey, who was paid $228,000 in public funds and reportedly another $100,000 in private donations to create Portlandia. "Not many cities respected artists' rights in those days."

The RACC agrees. "Many artists have had their works taken advantage of in the past," says Peggy Kendellen of the RACC. "It's important to protect the rights of the artist."

Some people—including artists—don't agree.

"This is absolutely ridiculous," says John Goff, a local art publisher. "[Kaskey] made that statue with public money. He should receive what he was paid to make it and not a penny more."

"Public art should be in the public domain," says Chris Haberman, an RACC-contracted muralist and co-owner of the Peoples Art of Portland gallery.

"It is unfair to have a situation where artists are afraid to make a painting of a statue or include public art in the background, or members of the public are afraid to take photos with the statue and post them on Instagram," says Kohel Haver, a local copyright lawyer who represents artists. "The [city] didn't realize it was giving away the rights to an icon."

Portlandia was unveiled atop the famous, postmodern Portland Building on Oct. 6, 1985. Tom Wolfe, covering the story for Newsweek, came to town for the grand ceremony as the city celebrated a crowning artistic achievement. Nearly 30 years later, architect Michael Graves' 15-story building—once considered a groundbreaking piece of art itself—now pops up on lists of the world's ugliest buildings, while Portlandia—Wolfe called her the "Copper Goddess"—crouches in relative anonymity.

Body of Evidence

In 2012, Laurelwood Brewing put the statue's likeness on the label of a new beer, Portlandia Pils. The brewery assumed the public had a right to use Portlandia's image because it was an "icon." Laurelwood later reached a cash settlement with Kaskey, paying for the rights to use a drawing of the statue.

"To make some money—that's the single-best reason," Kaskey, who also counts the National World War II Memorial in Washington, D.C., among his intellectual properties, told WW in a 2013 article about the negotiations. "It's called capitalism."

Kaskey says he has no intention of ever selling his rights to Portlandia to the city.

However, Kaskey did allow Portlandia to be used in a brief appearance in the opening credits of the TV show Portlandia. One of the show's producers said the negotiations were lengthy and that one of the conditions called for the statue not be used "in a disparaging way." The producer didn't know if Kaskey was paid. Kaskey declined to comment on the deal, or to say how much he's made in licensing through the years.

Kaskey has also allowed the creation of a line of Portlandia brooches, made by local crafter Liz Yerby.

"I actually just emailed [Kaskey] directly asking for permission, and he responded very quickly and very politely," Yerby says. "He gave me permission to use the image, granted I keep the copyright information intact with the piece, and pay him a licensing fee if I sold 10 pieces."

She has yet to sell any of the $6 brooches, and has had to explain what the statue is to friends to whom she's gifted them.

"In a way, it's nice that the Portlandia image isn't overused and used on tacky souvenirs," Yerby says, "but it is kind of sad no one can recognize her."

How can a work of public art, located on public land and funded by taxpayer money, be the intellectual property of an individual artist? Actually, it's not that uncommon.

Portland was a leader in first allowing artists to retain copyright on all public art, but other cities, from Seattle to Miami, have followed suit.

In Portland, the decision evolved during a series of heated debates over the summer of 1984—sparked by a poster and a postcard.

The 1978 "Expose Yourself to Art" poster featured then-future Mayor Bud Clark holding his trench coat open and appearing to expose himself to a piece of public art, the downtown statue Kvinneakt ("nude woman" in Norwegian). The poster had sold some 250,000 copies by 1984. There was one problem: The poster did not contain an attribution to the sculpture's artist, Norman J. Taylor, who expressed concern that the city did not adequately ensure he was credited.

The second catalyst was a postcard of the then-unfinished Portlandia that Kaskey wanted to distribute. The city attorney advised Kaskey's lawyer that it was a violation of Kaskey's original contract with the city of Portland, which retained the rights to Portlandia.

In March 1985, the city amended Kaskey's contract for the unfinished statue to transfer the copyright back to Kaskey, with the city keeping only the right to use it for certain publicity purposes.

"In the early 1980s, copyright was not as big a deal as it is today, and it certainly wasn't in the forefront of public consciousness the way it is today," says Lydia Loren, a copyright law professor at Lewis & Clark College. "Even the amendment reflects that the only kind of reproductions [the parties involved] were contemplating were reproductions for 'publicity purposes.' But, in the end, the amendment is also clear that the artist is retaining his copyright."

"There is always going to be a debate about the rights to public works, but this is our standard operating procedure," says Eloise Damrosch, executive director of the RACC. "It's important to protect the integrity of the art and prevent it from being used in some schlocky merchandise."

Other artists aren't happy with Kaskey's brand of capitalism.

Amos Latteier, a Montreal artist and lecturer, had to get Kaskey's permission to use the likeness of the statue for his Be Portlandia project in 2003. That project, which Latteier had to assure Kaskey he would not profit from, involved the creation of an art installation reminiscent of Portlandia's perch on the Portland Building and photographing people posing on it with a trident.

"In general, I have an unfavorable view of copyright law," Latteier tells WW. "It doesn't benefit most artists or the process of cultural creation.

"Likewise, I am generally opposed to rent-seeking behavior."

"Copyright has its origins in censorship and thought control," says Stephan Kinsella, a Houston intellectual property lawyer and author of Against Intellectual Property.

Kinsella cites odd outcomes such as the city of Paris' 2003 move to copyright the night view of its signature structure. "You could be sued by the city of Paris for using a photo of the Eiffel Tower taken at night—and only at night—without its consent," he says.

Similar things have happened to other public art. Last year, a federal court awarded sculptor Frank Gaylord of Vermont nearly $700,000 in damages after determining the U.S. Postal Service did not have permission to use a photograph of Gaylord's 1995 work "The Column," a group of sculptures of U.S. soldiers and sailors that is part of the Korean War Veterans Memorial in Washington, D.C., on a commemorative stamp.

In 2009, artist Shepard Fairey was forced to pay a settlement after it was determined that the photo on which he had based the famous "HOPE" poster used by the Obama presidential campaign in 2008 was the intellectual property of an Associated Press photographer.

To be sure, Portlandia's copyright restrictions have provided a nice income for Kaskey. But they also limit marketing possibilities for the city, which seems to understand it needs such icons. That's why it acquired the rights to the famous White Stag sign at the west end of the Burnside Bridge in 2010. With Portlandia in Kaskey's shackles, the Old Town sign remains one of the most instantly recognizable parts of the Portland skyline.

The city charges a small fee for commercial use of the sign—raising $1,000 in the last fiscal year.

"Every time this sign appears in national magazines or [on televised] Blazers games, it is the city of Portland that gets the recognition, not the company," said then-Mayor Sam Adams.

Someday, the same will be true of Portlandia—but not until it enters the public domain, 70 years after the statue's maker and owner, Kaskey, dies. 

WWeek 2015

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