Author ORCID Identifier
Document Type
Article
Publication Title
Mississippi Law Journal
Abstract
This article makes a simple but in its own way startling claim: much 20th century U.S. visual art is not protected by copyright. These works were regularly “published” when they were first exhibited for sale in commercial galleries, often marketed through contemporaneous illustrated catalogs, almost always without copyright notice of any kind. They were thereby placed in the public domain. What is remarkable is the extent to which this reality has been ignored by artist estates and foundations and other art industry players. They operate on the incorrect, self-serving and generally unexamined assumption that most 20th century American art is under copyright, and that a fee must be paid, and permission obtained, for its use. As a result, estates wield outsize power over access to these images. Art historians must curry favor with their subjects, or their posthumous representatives, or else jeopardize the ability to illustrate their scholarship. This creates the threat of distortions in art historical scholarship, both with respect to which artists are written about and how they are discussed. Yet, when it comes to midcentury American art, this entire rights clearance system is based on a false premise. These works should be legally free to use, with no permission needed.
The article proceeds in three parts. First, it demonstrates why a substantial amount of 20th century visual art created in the United States before 1978 is likely not under copyright. Second, it provides case studies applying this analysis to exemplary midcentury masterworks by Jackson Pollock, Lee Krasner and Diane Arbus. Finally, it shows how the art industry generally assumes the contrary for its own benefit. This has an especially harmful effect on the academic art historical community, where control over image rights can be used to shape artist narratives, as well as on filmmakers, museum curators, historians and countless others whose work is focused on images and burdened by rights clearance culture.
Publication Date
7-2026
Recommended Citation
Peter J. Karol, Illusory Copyright and the Private Censorship of Art History, Forthcoming, 96 Miss. L. J. (2027).
Creative Commons License
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