Originally Written & Posted by Michelle Stearn for Spacelab.info...
In Washington DC, art theft happens in the alleys, not just in the museums. One alley in particular, at 57 O Street NW around the corner from North Capitol Street, is the site of an invisible crime scene. No yellow tape, no flashing lights, no sirens. Those only come when gunshots are fired. But these bullets are inaudible, invisible, insidious. They are the words written in contracts between DC painter Lisa Marie Thalhammer and her suitor, the DC Commission on the Arts and Humanities. These words, among other invisible bullets, helped facilitate the theft of a work of art and subsequent payment of $50,000 to the thief herself.
The object of interest is a work of art created in front of my very eyes, in my kitchen one breezy evening in Spring of 2016. My life partner, Aja Adams, got out the big sketchbook to start the design. Lisa Marie, who had come over to discuss collaborating on a grant opportunity, brought out some watercolors, and we all brainstormed ways to bring an educational component to the painting of the wall. The mural was to be painted on the Open Arms building, a shelter for homeless and domestically abused women down the street, so naturally Aja depicted a goddess woman with her hand outstretched, and a swirl of colorful energy behind her. Lisa helped add colors and shading to the piece and helped define the contours of the outstretched hand.
Had I known at that moment, standing there stirring a pot of beans, that the rendering in Aja’s sketchbook would be ripped out and exchanged with a government body for $50,000 and a shiny press release, I would have laughed out loud. My neighbor, fellow artist, supporter of our Space Lab house shows, a thief? The one who paints rainbows and “LOVE” on everything she can get her hands on? Unbelievable. Even the beans would have chuckled.
Well, it happened.
And the rainbows fade to gray. It wasn’t a clean tear out of the sketchbook, either, figuratively speaking of course. If you have the wherewithal to learn about how DC’s wealthiest government arts institution is helping a white artist exploit a community of color, you’ll keep reading. If not, feel free to just skip to the last paragraph.
THE NITTY GRITTY
The institution in question is the DC Commission for the Arts and Humanities whose budget for the 2016 fiscal year was $15,955,248. Even with this cash register bulging, the grant selection committee doesn’t always throw the money at new faces. Lisa Marie was on the winning side of that coin; she has won grant monies from the DC Commission on the Arts and Humanities seven times – I repeat, seven times – since 2006.
Knowing this exclusivity, the news of the grant victory came bubbling up, and we celebrated. “I was so excited to be paid to do what I was born to do: paint,” Aja reminisces. “My partner was about to move and I didn’t know how I would afford DC rent alone. This seemed to be a blessing, a win-win.”
Win-win, until almost a year later, when we met at Lisa Marie’s studio and she informed Aja that they weren’t listed as “collaborators” on the grant application. Instead, Aja and I made up the “personnel team.” Okay, I thought, maybe that’s just wording. It took us almost an hour to get to some hard, fast numbers. Lisa Marie stammered at this part, saying she didn’t have the specific budget line items ready, but generally she was taking a ‘utilitarian’ approach to the grant budget. “Aja, it looks like this is going to be about a $10,000 project for you,” Lisa Marie admitted finally. During this meeting, Lisa Marie informed us that she was also planning to use about $10,000 for her own studio developments. We left the meeting with our eyebrows raised.
After doing some calculations, taking into account DC’s rising cost of living for the time it would take to complete the project, this simply wasn’t going to fly for Aja. “I was going to be paid as a minimum-wage worker for a mural I thought I was a collaborator on. So I dropped the project and asked Lisa Marie to scrap the image,” Aja says. “She agreed and also promised to pay me for my time, my company mission and resume used in the application, and for co-creating the winning design.”
The fact that Lisa Marie promised to redesign the mural is important to the plot of our story. U.S. copyright law states that once an idea is transferred into a fixed visual form, it becomes copyright. So that means that once the initial sketch was created in our kitchen that balmy DC evening, it was a legally protected jointly authored work, indicating that both Aja and Lisa Marie own the copyright and have a say in what ultimately becomes of the image.
I knew I needed to understand the law around this image to prepare for battle, so I sought the advice of copyright law expert Linda Joy Kattwinkel of the “Legalities” blog run by Owen, Wickersham & Erickson law firm in San Francisco. “Each co-owner has the right to exploit the joint work without permission of the other co-owner, but at the same time, must share all profits from doing so equally with the other co-owner,” Kattwinkel explains. Aja decided to charge less than 50 percent of the grant, "because in all fairness, I wasn't going to be there to physically paint the wall." So when Lisa Marie made a fuss about the $5,625.00 invoice, and ultimately refused to pay even the first installment, Aja and I decided to take it to the big-wigs.
First, we emailed the Director of the Commission, Arthur J. Espinoza, along with several underlings who we thought could help resolve our non-payment issue and alerted them of a possible breach of copyright. We are listed on the grant application as the “personnel team,” after all, so how difficult could it be?
For weeks: silence. We didn’t hear back from anyone except Lisa Marie, who pleaded: “They have not approved my redesign and suggested that I return the funds or have the design resemble the original, which means no one gets paid anything... which would also put me in considerable debt in addition to you not receiving any payment as well,” she wrote in an email in June 2017. Lisa Marie indicated that the funds were being threatened because of one line in her contract in question: “Artist warrants that the Work does not infringe or violate the copyright, trademark or patent right of any third party.”
Through the whole process, Aja continues to insist that the power has always been in Lisa Marie’s hands to resolve. Pay up, and send along the brand new image for the mural. “If you’re creative and worthy of this grant, you can design a new mural for the wall,” Aja says. However, in order to stall payment, Lisa Marie blamed everything from slow paperwork turnaround to our own efforts voicing Aja’s concern about copyright. Imagine our surprise when she touted the so-called “new” mural design as being “completely my own rendering,“ she wrote in the email thread with the commission. "The drawing is a completely new one,” she claimed.
Your jaw might have dropped when you saw the image; so did ours.
“I would love to see an art historian examine that image,” Aja smirks. “You can see the pencil-marking from the original rendering through the color. After telling me she had lost the original sketch when I asked for it back last year, I now know why Lisa Marie had to lie. She painted over the original, plain and simple.”
It started to become clear that Lisa’s carefully woven quilt of domination was unraveling. Since the commission wouldn’t approve anything Lisa designed on her own, she decided to use Aja’s original image without permission. Under copyright law this would be permissible, if and only if she didn’t profit off of the image, or if she paid Aja 50 percent of the award.
The story continues, because Aja didn’t stop fighting. In response to this blatant copy of the original, and despite our involvement from the beginning, the Commission asked Aja to prove status as a co-creator of the work. Why is it that now we need to show proof, I pondered, when the Commission threatened to pull the grant from Lisa Marie based on our initial communication with them about copyright infringement? Irony notwithstanding, we sent in statements and screenshots detailing our journey to negotiate payment and copyright ownership with the grantee Lisa Marie. The lack of written proof started to seem like evidence itself. Lisa had covered her tracks wisely; at all costs avoiding mentioning copyright issues in writing. The only time she mentioned copyright was when she tried to have Aja sign away all rights to the image, including the right to communicate with the grantors.
“Until that point, even though I knew the situation was corrupt, I didn’t want to shout about this on social media,” Aja admits. “That’s not my personality. I was seeking compromise anyway, not domination.”
The piece of news that finally pushed Aja and me over the edge came as a blow this Tuesday morning. Even though Lisa Marie had claimed to have “lost” the original when Aja requested to see it back in 2016, the piece mysteriously received a copyright registration under Lisa Marie Thalhammer from the U.S. Copyright Office in August 2017, over a year after they jointly created it.
“Lisa Marie registered both the initial sketch and the derivative piece under her name, even though we both own the works jointly. It was done illegally, without my permission,” Aja explains. “However, in response to my claims of co-ownership, the DCCAH used these pieces of paper – these registrations with the U.S. copyright office – as proof that I was NOT a co-creator of the piece.”
How is it that the U.S. Copyright Office grants copyright registration to those who lie about their ownership of the work? As Linda Joy Kattwinkel from San Francisco advised, in order to register an image with the U.S. copyright office, “ownership issues need to be clear. Otherwise your registration could be invalidated.” Invalidated, why? Because it’s illegal. Copyright occurs the moment the image becomes fixed on paper.
In the end, both the DCCAH and Lisa Marie thought they had maneuvered their way out of this bind. Lisa Marie not only created and illegally registered a derivative work, she also planned on profiting off it, and went ahead and painting the wall using a combination of the original and derivative designs.
So how do we sit calmly while the DCCAH uses these illegal scraps of paper to claim that Aja is NOT a co-owner of the work, created in Aja’s very own sketchbook in our humble kitchen last year? Unlike the paintings in museums, which are protected by laser alarms and security cameras, local artists don’t have built-in support to protect their work when the art thieves come preying. Not even the taxpayers who funded the $50,000 transaction were ever supposed to know the perpetrator’s crimes.
Even if we had a case in court, hiring an attorney would be difficult, to say the least. A light of hope: U.S. Congressmembers have introduced a bill called the “CASE Act” that would help individual creators with copyright claims, but we can’t wait for that. As of now, as Robert Levine explained for a recent Billboard piece, “The potential penalties in copyright lawsuits often get a lot of attention: statutory damages can reach as high as $150,000 for willful infringement. What gets discussed less often, however, is the cost of bringing federal litigation to enforce those rights in the first place.” Levine cited a report by the American Intellectual Property Law Association which found that “the average cost of litigating a copyright case, from pre-trial proceedings through an appeals process has reached $278,000.” If my calculations are correct, even if we won the court case we’d be $128,000 in the red.
Thus, It remains to be seen the outcomes of this crime. Perhaps the most efficient of all solutions would be a private settlement between the two parties, similar to the one Shepard Fairey negotiated with The Associated Press after his infamous posterization of Mannie Garcia’s original photograph of President Obama for the “Hope” poster. The two parties never even entered a courtroom; instead, came to a profit-sharing solution at their own table.
“I’m open to negotiating with Lisa Marie for a fair way to share this image. The problem is, she’s blocked me from all channels of communication,” says Aja. “That’s why I’ve tried to press further with the DCCAH, but their responses are increasingly aggressive.” The Commission has repeatedly disassociated itself with the issue in their direct communications with Aja, stating that this is a personal matter to be solved outside the boxing ring. “We do not have the legal authority to resolve your personal, copyright-related fight with Ms. Thalhammer,” said a representative of the Commission, Carl Wilson, in their last communication with Aja.
Another source at the Commission similarly advised, “Frankly, the arbitration would be between Lisa and Aja. This isn't a Commission issue, it's an intellectual property (IP) issue between Lisa and Aja. The Commission awarded the project, and Lisa allegedly breached Aja's IP rights. The Commission contracts the applicant with completing the project, it doesn't deal with assigning intellectual property rights.”
Twisted, how institutions with the power to change the paradigm of artists leeching off unprotected and underserved community members shirk their responsibility to hold grantees accountable and play it off as “personal.” Twisted, how the underlying exploitation is dispersed onto individuals, making it even more challenging to pinpoint and deconstruct. It’s akin to faulting underpaid teachers for failing their students, instead of examining the underfunded education system as a whole.
In the midst of this storm, we are hopeful that resolve will start to coalesce. In less than 48 hours since Aja went public on Facebook and Change.org, there are over 660 petition supporters and counting, and even made the NBC4 evening news Wednesday night.
“Now that we’re past compromise, I’m not sure what to look for besides finding a drop of equality in this system,” Aja laments. “Something’s got to happen for artists, especially queer artists of color, to not be exploited and ignored anymore. To make sure this never happens again. And that the people guilty be held accountable. I need to be paid and given credit for my work. This is my livelihood, I don’t have a choice for this to be okay.”
So now, we wait, strengthened by our community that has risen up from the cracks in the internet’s floor. Although Lisa Marie has played innocent throughout the whole process, her actions tell the story louder than her words ever could. As transgender filmmaker of color Reina Gossett recently wrote on Instagram about how her white male counterpart stole years of research to direct a Netflix-funded documentary: “This kind of extraction/excavation of Black life, disabled life, poor life, trans life is so old and so deeply connected to the violence [film subject] Marsha had to deal with throughout her life.” Yet despite the crime against Gossett and evidence put forth to prove it, the film’s producer David France staked his claim of ownership and has not looked back since. A parallel to Lisa Marie’s strategy, he hides behind gushing praise and love for the community, while perpetrating the violence and exploitation we were hoping to combat with this project in the first place.
Lisa Marie’s last plea to Aja was dripping with pathos-plagued persuasion tactics. “The women at Open Arms constantly complain to me about how people just use their situation to take advantage of grants and get money undeserved,” she wrote us in an email, “which is why its so important to me that the funding be appropriately distributed and used for the production of the mural and work with the women directly.”
Lisa Marie Thalhammer, you stole artwork from a queer non-binary person of color from your own community, the one you are claiming to serve. You illegally registered two images for copyright, both of which you do not hold sole ownership of, and you pocketed $50,000 of taxpayer money. Please do yourself and the community a favor: follow your own advice.