Art Market

When Rauschenberg’s Trash Became Another Man’s Art, He Sued

Isaac Kaplan
Dec 25, 2017 1:00PM

Image via Wikimedia Commons.

Could Robert Rauschenberg’s trash become another man’s treasured artwork—and then sold as a Robert Rauschenberg?

This bizarre twist on that age-old aphorism was actually at the core of a 2007 federal lawsuit brought by the famed artist against a proverbial dumpster diver. The case raised questions about whether artists have a right to what they crumple up and throw in the trash. Is a Rauschenberg photograph chucked out next to yesterday’s Chinese food and a pile of used napkins still attributable to Rauschenberg? Ultimately, the question was never resolved.

In 1998, a 20-year-old art student named Robert Francis Montgomery was walking down a street on Captiva Island, just off the coast of southwest Florida, when he saw several large negatives waiting for a garbage pickup next to the rest of the trash. Known as “chromes” (short for chromogenic slide film, essentially film negatives), the images had, Montgomery claimed, been produced by Rauschenberg, who lived not far away, and bore what appeared to be the artist’s signature. Montgomery decided to take the pieces—described as “colored images that could have been used in Rauschenberg's creative process,” by a local paper—and ultimately incorporated some into work he made for an art class.

Had that been the extent of it, Rauschenberg would have never realized that his images (if they were his images) didn’t make it to the garbage dump. But roughly a decade later, Montgomery, under the pseudonym Robert Fontaine, sold three of the pieces. Two of the pieces sold for at least $2,000 each according to Fontaine’s lawyer, a miniscule sum in the context of the artist’s market. “Fontaine” attributed the pieces to Rauschenberg and even included certificates of authenticity—though the legitimacy of the certificates was a subject of debate.

Rauschenberg sued Montgomery, citing his legal rights under the Visual Artists Rights Act (VARA). The statute allows artists control over what work is attributed to them, including the right to “prevent the use of his or her name as the author of any work of visual art which he or she did not create.”

Rauschenberg’s court filing charged that the negatives Montgomery fished from the trash were not his at all. The filing asserted that they “were not created by [Rauschenberg] and are therefore not authentic.” Additionally, the complaint stated that Montgomery’s sale of the trash as real Rauschenberg pieces “jeopardizes the economic value of legitimate works he has authored.”

The case got a flurry of press attention at the time but has largely faded from the spotlight since. Still, the questions the case raised remain compelling. “Rauschenberg is an incredible artist,” Yale Freeman, Fontaine’s attorney, told USA Today at the time. “But what happens when that incredible artist discards material? Do the laws of abandonment apply?”

Rauschenberg’s filing cast doubt as to whether the works were even created by him at all. But assuming they were produced by him—and not forged pieces, or cast-offs from some other artist living on Captiva Island—did Rauschenberg discard his rights when he threw the negatives away?

As a legal principle, “abandonment is defined as the intentional relinquishment of all title and claim to, as well as possession of, property,” wrote lawyers Charles T. and Thomas C. Danziger. Think of it like that IKEA bookcase you left on the sidewalk after a move. It’s not yours anymore, and you don’t have a say as to what happens to it—anyone could take it and resell it on Craigslist.

Other lawsuits have invoked the same principle in relation to art, Charles and Thomas Danziger noted, citing a 1982 case centered around two water-damaged pieces artist Frank Stella left outside his studio. Rather than being picked up for trash collection, the works were taken and later placed for sale by art dealer Stephen Mazoh. Stella sued and the case was ultimately settled, with the unwanted artworks returned to Stella—who destroyed them.

Rauschenberg could still have had attribution rights under VARA even if a piece was abandoned. So in Rauschenberg’s suit, a key question was whether the court would find that VARA applied at all given it only covers certain works of visual art, including “still photographic images produced for exhibition purposes only.” Do the images fished from the trash fall under this definition? If the court read the law in an “unsophisticated and mechanical” manner—that is, very narrowly—then negatives may not meet the definition of visual art and Rauschenberg would lose his VARA case, wrote lawyer Marc Randazza at the time.

But, he added, “if the court applies VARA properly” and more holistically, there might be a different outcome more favorable to the artist. “You can not take something that an artist created during the creative process, and then discarded, and say it is an authentic work of that artist,” Randazza wrote.

The statute also allows artists to both disavow a work and prevent that work’s attribution to them if the piece was distorted or mutilated in a way prejudicial to the artist’s “honor or reputation.” Arguably, Rauschenberg never wanted these chromes to be seen at all, so attributing them to him as artworks that are part of this oeuvre violates this provision.

In his suit, Rauschenberg sought the destruction of all the work Montgomery attributed to him, as well as the proceeds from their sales. But VARA only endures for the life of the artist, and Rauschenberg died in 2008, a few months after filing the suit. Like so many cases invoking VARA, this one never saw a legal verdict, and the questions it raised remain unanswered.

Isaac Kaplan