Artist David Wojnarowicz sued the Rev. Donald Wildmon and the American Family Association in federal court yesterday for mass-mailing photos showing details taken from Wojnarowicz's work as part of Wildmon's continuing attack on federal funding of the arts.
The suit, filed in New York, charges Wildmon with copyright infringement and libel. Wojnarowicz seeks $1 million in damages as well as an order requiring Wildmon to stop using Wojnarowicz's work in the future and to mass-mail a disclaimer stating that the pictures do not fairly represent the artist's work.
"The damage from this is real," said the 35-year-old Wojnarowicz from his home in New York. "In a time when a lot of our institutions are in a sensitive state given the attacks on the National Endowment for the Arts ... this kind of mailing will affect my reputation. People will come to believe that this banal pornography is representative of what I do. And that can affect my livelihood. Given the fact that I have no health insurance and I do have AIDS, this can affect how I take care of myself. That's the seriousness of it for me."
Reached at his offices in Tupelo, Miss., Wildmon said he had not seen the suit and would not comment on it. "I've learned, sometimes it's best not to say anything," he said.
Wojnarowicz is being represented at no charge by attorneys from the Center for Constitutional Rights as well as three attorneys associated with the powerful corporate New York law firm of Skadden, Arps, Slate, Meagher & Flom (the firm itself is not involved in the litigation).
The case was assigned to Judge William C. Conner, and one of Wojnarowicz's attorneys, Kathryn Barrett, said she hopes to get a hearing on her request for a preliminary injunction within two weeks.
"Any artist whose work was reduced from art to pornography and then labeled as his would be likely to sue," said David Cole, of the Center for Constitutional Rights.
Wojnarowicz said he was "enraged" when he saw the mailing last month and got in touch with lawyers immediately. According to the suit, Wildmon sent out more than 180,000 pamphlets to members of Congress and pastors. Under the heading "Your Tax Dollars Helped Pay for These 'Works of Art,' " the mailing included blow-ups of sexual images. The suit says the pamphlet reproduced "a very small excised portion of the original work of art from which it was drawn." For example, the pamphlet duplicated only 2.5 percent of a 6-by-8-foot painting titled "Water," and 11 percent of a 30-by-20-foot painting called "Delta Towels."
The works were part of the "Tongues of Flame" exhibit, a show assembled with the help of a $15,000 grant from the NEA. The show appeared at the University Galleries at Illinois State University in Normal, Ill., from Jan. 23 through March 4. Recipients of the Wildmon mailing were urged to find out whether their congressmen support NEA reauthorization and "remember that when you vote."
Wildmon included a Wojnarowicz image of Jesus with a syringe in his arm in previous newspaper ads opposing the NEA. "I've overlooked full-page ads that he's placed, in part criticizing my work in vehement ways," Wojnarowicz said. "I have no problem with criticism. This is a very different issue. This guy did a hatchet job on a group of my works, my photographs and paintings, and is harming my reputation with this mailing."
Paul Goldstein, a professor at Stanford Law School and the author of a three-volume treatise on copyright law, says the case involves the issue of artists' moral rights to control their works. Goldstein said Wojnarowicz can find support for his case in that area as well as in traditional copyright law.
He said Wildmon is likely to counter with an argument that he made "fair use" of the works. The law allows use of copyright material in limited circumstances. In such cases, the court considers several factors, including the amount of the work used, the effect on the market and the purpose of the use. One permissible use is the advancement of public debate. Goldstein said Wildmon could also argue that he has a First Amendment right to reproduce parts of Wojnarowicz's work, although such claims have rarely succeeded in copyright cases.
The outcome usually rests on the particular circumstances of each case, Goldstein concluded. "Even if we knew all the facts, courts can go one way or the other," he said.