What Happens When People Start Selling Posters an Artist Gave Away for Free

When thinking about the commodification of art that was intended to be free, the first example that comes to many people’s minds is probably street art, such as the carefully removed Bansky murals sold by galleries and auction houses for hundreds of thousands of dollars. Selling art taken off the street goes against the very nature of the form as a public work, but at least the pieces (usually) remain (relatively) intact when they’re removed from public view and put up for sale.

Imagine someone breaking the wall into pieces and selling the individual spray-painted bricks. A brick with a piece of a larger Banksy wouldn’t really be a Banksy anymore, or would it? Maybe people would buy it anyway? Based on the thriving market for fragments of works by Felix Gonzalez-Torres, the answer is probably yes.

The Gonzalez-Torres works in question are his “stacks,” a few dozen individual works that consist of stacks of hundreds of pieces of paper. Each paper in an individual stack is printed with the same text or image, occasionally created in collaboration with another artist; museum and gallery visitors are typically given the option to take a poster or two home with them for free. When the stack diminishes, the owner or authorized borrower of the work may let it deplete over the course of an exhibition or replenish it—the stacks’ materials are listed as “endless copies.”

Like with many works by Gonzalez-Torres, when a stack is sold to an art institution or collector, what changes hands are the certificate of authenticity (which includes instructions) and the right to manifest the work within the artist’s parameters—not individual sheets. The artwork is the idea itself, manifested whenever it is put on view as a slowly diminishing stack of individual sheets. But while the sheets exist in endless copies, per the terms of the works, access to them is limited to people who are able to attend an exhibition where a stack is on display. For everyone else, a thriving online marketplace for remnants of Gonzalez-Torres’s stacks may be the next best thing. In the past several years, many such individual sheets have been sold online, sometimes for thousands of dollars. These individual sheets are available not only on eBay, but also via some of the art world’s biggest marketplaces.

From free “stacks” to selling for stacks

In May 2018, artist and writer Greg Allen published an article on his blog about the phenomenon of selling individual sheets from Gonzalez-Torres’s stacks, a trend he found both unusual and disappointing. “Could the artist’s wishes be better served by adapting his stacks to the digitized world he didn’t live to see?” Allen wrote. “What if the Felix Gonzalez-Torres Foundation made all of the stack sheets available for download and individual printing? It’d be several kinds of complicated, I know, but it wouldn’t disrupt the existence of ‘the piece,’ the uniqueness of which, remember, is defined by ownership.”

For now, individual sheets from Gonzalez-Torres’s stacks remain available to purchase online; even the major auction houses are known to offer them, albeit with very specific language describing the individual sheet’s relationship to the stack. And for any seller who may miss the crucial and unique definition of a stack as an artwork, the Felix Gonzalez-Torres Foundation steps in to educate.

“The online auction houses often situate the individual sheets as artworks in and of themselves,” said Emilie Keldie, the director of the foundation. “In situations like that, the foundation does have a responsibility to share that the parameters of the work state that each sheet and all sheets taken collectively aren’t considered an artwork by Gonzalez-Torres. Whether or not the auction houses actually incorporate this type of information in their public lot listings is up to them.”

Legally, however, sellers may be obligated to incorporate that information. The most immediately relevant laws to the online marketplace for Gonzalez-Torres posters may be those protecting consumers from false advertising, and protecting transacting parties from false descriptions of commercial goods.

“When sold, Gonzalez-Torres’s stacks are accompanied by a certificate of authenticity and master for reproduction of the broadsheets,” Megan E. Noh, a partner at Pryor Cashman, a New York–based law firm, said. “Only the holder of the certificate actually owns a complete, authentic Gonzalez-Torres work. This means, logically, that if sold separately, an individual broadsheet from a stack is something other than that, and should be appropriately described.” In other words, if the posters’ sellers advertise them as being unique works by the artist or from a limited edition, buyers who relied on such inaccurate descriptions could potentially ask for their money back if and when they discover this not to be the case.

Cashing in on conceptual art

Art historian and attorney Virginia Rutledge said that the act of buying a conceptual art poster has interesting resonances with buying something like a vintage concert poster, turning it into a peculiar type of souvenir. “The buyer may just want the brand value of the artist’s name. But it also could be some attempt to track what it feels like to be in the gallery and take one,” she said. “It’s weirdly productive, this post-gallery circulation of the posters. If nothing else, it gives us something to talk about.”

For its part, the Felix Gonzalez-Torres Foundation is much more concerned with educating buyers and sellers about the artist’s work than in halting transactions. “We appreciate that there’s a market for these materials and we don’t try to impede that, but we do always make an effort to reach out to auction houses so that they have access to accurate and complete information,” McHugh added. “The foundation doesn’t ever try to stop the sales.”

Indeed, some people who knew Gonzalez-Torres find it interesting and even appropriate that some of the individual sheets from his stack works have taken on lives of their own. The consensus among these associates of the artist was that even though these sales may be somewhat contradictory to the spirit of the stacks, they’re an extension of the openness of the works. The sales have sparked conversations about the role of ownership and how we create value.

The limits of control

Andrea Rosen, the artist’s longtime gallerist and the president of the Felix Gonzalez-Torres Foundation, said that one of the core principles of the stacks is giving up control. What people decide to do with those pieces of paper is up to them, and those actions, and the questions around them, are ultimately an extension of the work itself.

For art historian Adair Rounthwaite, the selling of individual sheets is “cheesy, but I don’t see it as a terrible travesty against the work,” she said. “There’s an interest in objects like these, like the market for performance art documentation. They represent something about the work to us.”

Selling Gonzalez-Torres’s individual sheets may not be out of keeping with the spirit of his work, but what about the practice’s standing vis-a-vis intellectual property law? Noh said that the sale of a poster alone—that is, the sale of a sheet properly taken from an exhibition, without further reproduction—should not violate the Copyright Act of 1976, as the owner of a copy of a copyrighted work is permitted to sell or otherwise dispose of that copy. The Copyright Act could, however, provide recourse for the current holder of the artist’s copyrights in the works, were someone to make unauthorized use of a depiction of a stack for either commercial means, such as to promote the sale of a product.

In terms of the perceived misattribution of the individual sheets to the artist as individual Gonzalez-Torres works, Noh noted that the statute providing for artist disavowal, the Visual Artists Rights Act of 1990 (VARA), is not a good fit. VARA protects only a narrow category of “works of visual art,” defined by the Copyright Act as including paintings, drawings, prints, or sculptures existing in a single copy or in a “limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” As Gonzalez-Torres’s stacks have both conceptual components and printed sheets that are inherently not limited to an edition number (and certainly number more than 200), they should not qualify for VARA protection.

Rutledge applauded the Felix Gonzalez-Torres Foundation for its handling of the poster sales. “The intent of the foundation seems so in keeping with what we could appreciate about the artist’s practice while he was still alive,” she said. “It’s an approach that even evolves, which is rare, and admirable.”

“We don’t position ourselves to speak on behalf of the artist or opine on how they may have felt about a situation,” McHugh said, noting that Gonzalez-Torres was fundamentally “interested in the ways in which the physical materials ended up circulating in the public realm.”

Perhaps, then, the comparison of a Gonzalez-Torres poster to a brick spray-painted with part of a Banksy street piece doesn’t quite hold. The latter has no meaning except as part of the original, complete mural; the Gonzalez-Torres can take on a life of its own independent of the stack from which it was taken. Every time someone takes an individual sheet from a stack, the work as a whole grows and gains new significance.