Colliding Rockets: Legal Clashes between Artists and Art Critics
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On November 25th and 26th of 1878, under the reign of Queen Victoria, a libel case took place between two men in the Queen’s Bench Division of London’s High Court of Justice. However, these two were no ordinary men, and this legal suit was not an ordinary defamation case. The plaintiff in question was none other than the eminent American expatriate artist James Abbott McNeil Whistler, and the defendant was the Romantic-era art historian John Ruskin, arguably the most influential art historian in history after Vasari and Winckelmann. At this point, my dear reader, you may ask yourself: Why would an artist sue an art critic? This article will attempt to answer such questions about the fateful year in 1878 when two titans of art history clashed in the operatic legal battle of Whistler v. Ruskin, a case whose ostentatious theatricality and baroque fervor are comparable only to perhaps the Trial of Orestes at the Areopagus of Athens. Whistler v. Ruskin forever changed the legal dynamic between artists and art critics, and this response will examine this historic defamation case through the partial written court transcript. The case considered not only the damaging and libellous nature of Ruskin’s statements, but it also questioned the nature of Fine Art and artistic merit. Through an examination of this past court case and a contemporary case study of the art critic Robert Hughes and artists Jeff Koons, I will assess how legal relationships between art critics and artists have shifted into broader free speech protections in art criticism, allowing critics to launch acerbic and scathing comments against artwork and artist alike with practically little to no fear of legal repercussion.
It all began in 1875, when Whistler completed his oil on canvas painting Nocturne in Black and Gold – The Falling Rocket. Despite being known as one of his masterpieces today, in his court transcript, Whistler explains how the canvas only took about a day to complete, with perhaps some additional touches added the next day. The painting itself is an abstracted representation of evening fireworks exploding along the River Thames at London’s Cremorne Gardens, and the title’s musical allusion to a “nocturne” suggests an emotive, rhythmic melody underlying the composition or “arrangement,” as Whistler refers to it in the court case. Whistler’s Nocturne in Black and Gold was first displayed in 1877 at the Grosvenor Gallery in London, where it aroused great controversy for its ambiguous subject matter, with its amorphous silhouettes of individual figures and fireworks that hardly looked like fireworks at all. Soon afterwards, diverse groups of art critics began lampooning the work in multiple different newspapers, and numerous vignettes of such critiques were included in Whistler’s book. One of the most scathing criticisms came from John Ruskin in his 1877 Fors Clavigera, a series of letters written by Ruskin that contained the art critic’s opinions on a variety of moral and aesthetic issues. When Whistler read Ruskin’s Fors Clavigera, he was humiliated to find such a ruthless attack on his art, which Whistler interpreted as an attack against his artistic skill and livelihood as an artist. Thus, out of shame, indignation, and a desire to legally prove his worth as an artist, Whistler sued Ruskin for libel.
The Case and the Counsel for the Petitioner
The suit was heard in court in 1878 before a special jury, and Baron John Walter Huddleston presided over the case. Representing John Ruskin were the Attorney-General and a Mr. Bowen; the barristers’ cross-examination of Whistler and their own witnesses makes up the majority of what is included in Whistler’s account of the trial. The trial began with the opening statements of Mr. Parry, the counsel for the plaintiff. Mr. Parry explained how “Mr. Whistler had followed the profession of an artist for many years, both in this and other countries,” which established the fact that Whistler was a respectable and acclaimed artist throughout not only the United Kingdom, but the broader artistic circles of Europe. Mr. Parry continued to discuss the particular criticism that Whistler believed was libellous, namely, Ruskin’s paragraph about how “Sir Coutts Lindsay [the founder of the Grosvenor Gallery] ought not to have admitted works into the gallery in which the ill-educated conceit of the artist so nearly approached the aspect of wilful imposture. I have seen, and heard, much cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face” (Ruskin, Letter LXXIX, June 1877). Mr. Parry explains how thousands read Ruskin’s book, and this gave the impression that Whistler was ignorant, arrogant, incompetent, and a fraud. Ruskin’s criticisms of Whistler were a part of a larger complaint about the "eccentricities" and “mannerisms” of the “modern schools,” but Whistler was the only artist personally singled out and named by Ruskin in his disparaging remarks about “modern schools.” Interestingly, the only reference to statements by the counsel for the petitioner comes in the form of this opening remark, and there does not appear to be any other mention of Mr. Parry for the remainder of the trial.
The Counsel for the Defendant: Part I
It is the defendant’s portion of the case, where the theatrics really begin to ferment, turning the suit from a defamation case into a legal drama. The Attorney-General begins by cross-examining Whistler, asking whether Whistler believed that a cost of 200 guineas, equivalent to roughly 200 English pounds, was a severe price. Interestingly, Whistler actually agreed that the price of the work was rather high. The Attorney-General then asked Whistler if he really asked 200 guineas for a work which he only labored on for two days. Whistler responded, “No, I ask it for the knowledge of a lifetime,” which was a comment that was supposedly met with applause, according to Whistler’s transcript at least. The Attorney-General then proceeded into a discussion of whether Whistler expected to be criticized for his work, which was known by the public for its eccentric nature. Whistler responded that he did expect criticism but that he objected to “inimical” or hostile criticism or criticisms by those who were “incompetent” in art. However, this portion of the discussion ended with Baron Huddleston explaining that a critic must have the right to form an opinion and express it in strong terms if necessary. Thus, the central question was whether Ruskin directed such harsh criticism towards Whistler, the artist, which would be libel if an inaccurate assertion of Whistler’s actual personhood, or Whistler’s artwork, which would be protected as artistic criticism.
The Counsel for the Defendant: Part II
When the court adjourned, the Attorney-General picked up a new line of questioning, defending Ruskin’s statements against Whistler as a person. The Attorney-General argued that if Whistler did not want to face public humiliation and an attack on his livelihood, then he should have exhibited works that were worthy of respect. The trial then shifts to Mr. Bowen, who calls forth his witnesses. His first witness was Edward-Burne Jones, an illustrious Pre-Raphaelite artist and close friend of Ruskin’s. Mr. Bowen asked Jones if the artist saw any “art quality” in Whistler’ Nocturne. Jones responded that the painting displayed “fine colour and atmosphere” but lacked any sense of “detail and composition,” which Jones considered “essential” in art. Primarily, Jones’s testimony contributed information that Whistler’s painting lacked “finish” and the defining features of a “complete work of art,” relegating its authorship to someone who was not an actual artist, which would make Ruskin’s attack that Whistler unskilfully “fl[ung] a pot of paint in the public’s face” more justified. The trial then took an interesting turn of events when Mr. Bowen began investigating the formal qualities of Titian’s 1550 Portrait of Doge Andrea Gritti, a true work of art that had the qualities of “finish” that Jones was discussing in his testimony. The reasoning behind selecting a Titian and this particular work by Titian is rather perplexing at first glance. However, I’d argue the reason the defendant selected a work by Titian is that Titian serves as an Old Master comparison to Whistler’s modern painting. Titian was a well-known painter of the Venetian School, a Renaissance artistic group whose claim to fame is based on its sumptuous and vibrant use of color. One of the only formal qualities that Edward Burne-Jones admitted Whistler’s Nocturne possessed was “colour,” so I would argue that Mr. Bowen’s line of argumentation is showing the differences between how Titian, a real artist, and Whistler, an uneducated fraud, handle color. In this way, the defendant nearly summons Titian from the dead to provide a testimony against Whistler through his immortal art. After the discussion of Titian, there is a final cross-examination of another artist, William Powell Frith, who contributes essentially the same information as Jones. In the end, the trial concludes with a Pyrrhic and humiliating victory for Whistler, who is awarded a single farthing, amounting to less than a penny in 1880.
Implications of Whistler v. Ruskin
A deeper analysis of Ruskin’s comments in Whistler v. Ruskin illustrates why Whistler was successful in his trial, despite the fact that the Baron and special jury clearly found it a litigious case, as indicated by the fact that only a farthing was awarded to Whistler. Unlike many of Ruskin’s other art criticisms, which are centered within the pictorial frame of the painting, sculpture, or work of architecture, Ruskin quite explicitly punishes his written attack on Whistler as a person in a critique that was supposed to be about Whistler’s Nocturne in Black and Gold. In his criticism, Ruskin calls Whistler himself “ill-educated” and full of “cockney impudence.” Ruskin even calls Whistler a “coxcomb,” which was the name of a hat worn by a court jester, implying that Whistler’s works are worthy of laughter and ridicule like a jester’s jokes. While these elaborate and indirect attacks counted as libel in the Victorian era, I will now attempt to show how similar attacks against an artist’s person by art critics lack any legal bearing on current affairs in the art world.
Contemporary Case Study: Robert Hughes and Jeff Koons
To best exemplify how the legal dynamic between art critics and artists has shifted in contemporary society, we need to look no further than Robert Hughes’ artistic criticisms of the American artist Jeff Koons. Robert Hughes was an incredibly well-known Australian art critic who was called “the most famous art critic in the world” by a writer in 1997. Robert Hughes is perhaps best known for his 1980 documentary series on modern art, The Shock of the New. Robert Hughes also made a multi-part series called American Visions, based on his book by the same name. In American Visions, Hughes chronicles the evolution of American art from early Republican art with Jefferson’s Monticello and Houdon’s George Washington to American modernisms with Johns’ Flag and Rauschenberg’s Rebus. However, in the final episode, Hughes discusses American contemporary art, where he discusses and meets the artist Jeff Koons for an interview. Before the interview, Hughes calls Koons’s work “egregious” and filled with a “vulgarity” that was “syrupy, gross, and numbing.” All of these criticisms are directed towards Koons’ work and are, thus, valid and protected. Hughes also expresses a harsh critique of the fact that Koons “didn’t make his own stuff” and could not even carve his own name into a tree, but this is actually a true fact about most of Koons’ oeuvre and is therefore non-libellous as well. Once the interview begins, the awkward tension between Koons and Hughes becomes apparent from the start, as Hughes quickly dismantles nearly all of Koons’ sophisticated explanations behind his art. Hughes’s non-libellous comments against Koons here are still disparaging and look down on Jeff Koons as an artist, but if we want to really find scathing lampoons against Koons, we need to look outside the documentary series. In a 2004 article for the Guardian, Hughes writes that “Koons really does think he's Michelangelo and is not shy to say so…He has the slimy assurance, the gross patter about transcendence through art, of a blow-dried Baptist selling swamp acres in Florida. And the result is that you can't imagine America's singularly depraved culture without him.” As an art critic, Hughes was always known for his distaste of contemporary art, but he takes his criticism of Jeff Koons far beyond the art and transforms his criticism into an attack against Koons as a person. While matters of opinion are protected under free speech laws, insults that are published with the intent to harm an individual’s career have less grounds for protection. In the Supreme Court Case of Chaplinsky v. New Hampshire, a man named Walter Chaplinsky directly insulted a town marshal, calling him "a God-damned racketeer" and "a damned fascist.” Chaplinsky was arrested, but he argued that his statements were protected under the First Amendment. However, in the case, the Stone Court unanimously ruled against Chaplinsky and maintained his arrest, finding that there were certain exceptions to the First Amendment, including “fighting words,” words that would inherently incite a violent reaction. While Chaplinsky’s exclusions to the First Amendment have been narrowed by future cases, the stipulation on “fighting words” still stands. Calling someone the embodiment of everything depraved in an entire nation seems like it might fit the bill for words that might incite violence. However, during his lifetime, Hughes' vitriolic comments against Koons invited no lawsuit, and the same can be said about Hughes’ equally vehement ridicule of artists like Damien Hirst, which also invited no legal action. Thus, until an artist like Whistler decides to test his luck at a libel case in court against an art critic, it seems like attacks against the career and person of an artist are largely acceptable if voiced in the likeness of legitimate art criticism.
Parsa Zaheri is a junior at Brown University studying Political Science and the History of Art and Architecture. He is a writer for the Brown Undergraduate Law Review and can be reached at parsa_zaheri@brown.edu. Michaela Hanson is a sophomore at Brown University studying English and Economics. She is an Associate Editor for the Brown University Law Review blog, and can be reached at @michaela_hanson@brown.edu. Daniel Shin is a junior at Brown University studying English and Economics. He is an Associate Editor for the Brown Undergraduate Law Review blog and can be reached at @sangjun_shin@brown.edu.