Artist Robert Rauschenberg apparently didn't think several proof sheets were worth anything when he threw them out of his Florida home in 1998. But he is now suing another artist who allegedly made treasure out of his trash.

The federal complaint alleges Robert Fontaine violated the Visual Artists' Rights Act (VARA) by selling “items purported to have been created by the Plaintiff” using bogus Certificates of Authenticity. The law prohibits attribution to an artist of work created by another.

Rauschenberg does not specify where the items came from. In a related “bill of discovery” action filed in state court, he says only that Fontaine has possession of “actual or discarded works of Robert Rauschenberg or counterfeits intentionally misattributed to him.”

But Fontaine's attorney claims he found the proof sheets in a pile of junk outside Rauschenberg's home on Captiva Island, Fla. “It appears Rauschenberg threw this stuff away,” Yale T. Freeman told USA Today.

The state court action, which was filed by a Rauschenberg corporation, also names the HW Gallery of Naples, Fla., as a defendant. Rauschenberg is seeking the disgorgement of any profits made by Fontaine and a court order enjoining him from

doing any other act or thing likely to confuse, mislead or deceive others into believing that visual works of art not attributable to Robert Rauschenberg emanated from him or are connected with, sponsored or approved by him.

In an answer to the complaint, Fontaine says VARA does not apply because “Rauschenberg is the author of the material which is the subject of his complaint.” He also makes the provocative -– and potentially precedent-setting -- argument that Rauschenberg “abandoned” his attribution rights when he dumped the proof sheets in the trash.

“Rauschenberg is an incredible artist,” Freeman said. “But what happens when that incredible artist discards material?”

Courts have found garbage to be fair game in search and seizure cases. “An expectation of privacy in trash left for collection in an area accessible to the public” is not reasonable, the U.S. Supreme Court said in California v. Greenwood, 486 U.S. 35 (1988).

According to precedent in copyright infringement cases, however, Fontaine will have to show that Rauschenberg manifested the abandonment of his rights by “some overt act indicative of a purpose to surrender the rights.” Hampton v. Paramount Pictures Corp., 279 F.2d 100 (1960).

Given the heightened legal protections afforded intellectual property, it's unlikely a court will construe Rauschenberg's trashing of his work as such an act. As one law professor noted in an article on “The Public Domain in Copyright Law,”

[The] unique sensitivity to the rights of authors, and the protection against transfers [of copyright], even fairly compensated, should caution against too liberal an interpretation of abandonment.

At the time he found the proof sheets, Fontaine was an art student and was living near Rauschenberg. Most of the items, Freeman says, “have been given away or discarded over the years,” but one piece was sold, initiating the lawsuits.

By Matthew Heller
3/3/08