In December 2003, across the street from London's Tate Britain museum, artist Monica Bonvicini debuted her latest installation. Titled "Don't Miss a Sec," it was a public toilet inside a cube of one-way mirrors. The bathroom user could gaze out upon the passing museum goers and see the construction workers milling about, but they couldn't see inside. It was, among other things, a way for Bonvicini to challenge how people interact with their surroundings.
A decade later, Bonvicini was horrified to learn that the city of Sulphur Springs had constructed a knockoff version of "Don't Miss a Sec" and plunked it down next to the oversize chess set on the town square. The copy is completely faithful to the original, save for the addition of a steel frame and heating and air conditioning, which the city manager bragged about on local TV.
It is, in the words of Bonvicini's New York-based attorney, Patricia Hertling, "not very nice for her to have her kind of sophisticated sculpture" turned into a low-brow tourist attraction, which Sulphur Springs has advertised in press releases and by putting it in the running for "America's Best Restroom" contest.
Recently, Hertling sent Sulphur Springs a cease-and-desist letter claiming that the town's bathroom infringes upon Bonvicini's copyrighted artwork and demanding that it be removed.
The town has scrubbed its website and Facebook page of all references to the bathroom but has refused to take it down.
"Basically, they've got a cubed design with mirrors," says Sulphur Springs development specialist Gus Gustafson. "How the heck can you copyright that?"
But Hertling -- who, unlike Gustafson, speaks with a cultured German accent -- says it is much more than just a mirrored cube.
"The glass bathroom is very exquisitely designed as a minimalist cube with mirrored walls," she says. "The overall look and feel is this architectural sculpture that references minimalist architecture. Inside, the appliances are stainless steel, which Ms. Bonvicini did on purpose to kind of hint at prison-cell architecture. Foucault comes in [with] the pantoptical view. You all of a sudden become the prisoner guard where you can see outside but no one can see you."
That may all be true, but Philippa Loengard, assistant director at Columbia Law School's Kernochan Center for Law, Media and the Arts, says Bonvicini will have a tough time convincing a U.S. court that Sulphur Springs has infringed upon her intellectual property.
Works of art are protected by copyright upon their creation, but not all copyrights are created equal. Had Sulphur Springs faithfully reproduced Picasso's "Guernica" on its town square, it would have been a clear violation of copyright. But Loengard says that Bonvicini's copyright for "Don't Miss a Sec" is "thinner."
"It's just that a glass-enclosed toilet is not the most original thing," she said before clarifying that she wasn't making a pronouncement on the merit of Bonvicini's work. "It doesn't qualify, I think, under copyright for the highest degree of protection."
Hertling sent a separate cease-and-desist letter to the Observer demanding that the paper remove a photo of the Sulphur Springs restroom we published last fall, not because the photo itself is copyrighted (it's available on Wikipedia under a creative commons license) but because the subject of the photo is an illegally copied artwork.
"Any reproduction of that sculpture [e.g. a photo] infringes upon our copyright again because it is a reproduction of the infringement," Hertling told us.
An attorney with Observer's parent Village Voice Media informed Hertling last week that the photo's publication falls under fair use and that it will not be removed.
Bonvicini is still deciding whether to test the courts. Hertling says they are reluctant to file a lawsuit, the prospect of paying Sulphur Springs' legal fees if they lose being rather daunting for an artist, but they haven't ruled it out.
If Bonvicini does sue Sulphur Springs, Loengard says it's unlikely that a court will rule in her favor and that, even if that happens, the damages would probably be small.
For Bonvicini, though, this isn't about the money. It's a matter of principle -- the principle of Bonvicini not wanting to have her reputation attached to a toilet in Sulphur Springs.
"We're trying to avoid the spreading too much on the news," Hertling says. "We're just trying right now to avoid that people are going to talk too much about it."
Send your story tips to the author, Eric Nicholson.
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