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Rothko’s Green and Tangerine on Red & Copyrightability of Color

Rothko’s Green and Tangerine on Red & Copyrightability of Color

 Mark Rothko,  Green and Tangerine on Red,  1956, oil on canvas, 93 5/8 x 69 1/4 in.; 237.8075 x 175.895 cm., The Phillips Collection, Washington, D.C.

Mark Rothko, Green and Tangerine on Red, 1956, oil on canvas, 93 5/8 x 69 1/4 in.; 237.8075 x 175.895 cm., The Phillips Collection, Washington, D.C.

Color is a fundamental element of visual art.  Together with form, line, and shape, artists use color to depict the world around them, to convey an idea, or to elicit an emotion.  Copyright incentivizes these very expressions by granting authors exclusive rights to control and thereby benefit from the works that they create.  During the term of protection, these exclusive rights limit another’s use of the work.  But how far does copyright protection extend to encompass the commonplace and essential elements of visual art, such as color? 

Granting copyright protection for a single color would confer to the copyright owner a monopoly for that particular color, “deplet[ing] a basic building block of the visual arts.”  (Patry 2018, 4:16).  But should using color as the primary feature of the work, as seen in Mark Rothko’s color field painting, Green and Tangerine on Red, deprive an artist of copyright protection for his or her creative work?  When is color copyrightable?  The relationship between color and copyright is not black and white but requires a careful and nuanced analysis for this legal determination.  A visual analysis of Rothko’s Green and Tangerine on Red reveals colorable arguments for and against copyrightability, while providing insight into the relationship between copyright law and color.  

Mark Rothko’s Expressions Within An Abstract Color Field 

Mark Rothko (1903-1970) was an American painter of Russian birth.  Primarily self-taught, he developed his style by experimenting, attending exhibitions, and visiting the studios of other artists.  (Clearwater 2013).  Rothko was a member of the Abstract Expressionist movement, recognized for the use of abstract forms for expressive or emotional effect.  (Anfam 2012). For these artists, color field paintings in particular elevated the movement’s objective to depict abstract states of consciousness, by accentuating the viewer’s isolation and reflecting the emotional experience associated with the Cold War of the late 1940s and 1950s.  (Anfam 2012).

Around 1949, Rothko began painting the stacked horizontal bands of his signature style color field paintings.  (Fer 2005, 160). The format may seem repetitive, at first glance; but the artist routinely modified the template, such as with the application of paint around the edges. (Fer 2005, 161).  Concentrating not on color alone but the “quality of color”, Rothko would vary the edgings (hard/soft), brushwork (even/painterly), density (opaque/gauzy), saturation (full/evanescent), reflectivity (matte/shiny), and hue.  (Elderfield 2005, 110); (Anfam 1998, 79).  To alter the “quality of color”, the artist would often paint a ground color and then add and scrape off superimposed color areas.  (Elderfield 2005, 110).  This technique allowed the simplified, rectangle forms to appear as if floating on a “stained field”, free of the picture edge.  (Clearwater 2013).  The forms in these color field paintings are not static but give an impression of constant motion resulting from the pulsating colors that project and recede.  (Clearwater 2013). 

Rothko never wanted his paintings to be just about color and emphatically claimed that he was “no colorist.”  (Fer 2005, 159); (Gage 1998, 247).  For Rothko, the paintings did not depict color or common geometric shapes but profound human emotion.  In a 1957 interview, Rothko stated: “I’m interested only in expressing basic human emotions – tragedy, ecstasy, doom…and if you…are moved only by their color relationships, then you miss the point.”  (Clearwater 2013).  But for many, the force of Rothko’s paintings derives from the color.  Duncan Phillips, art collector and critic, said: “In the two soft-edged and rounded rectangles of Mark Rothko’s matured style there is an enveloping magic, which conveys to respective observers a sense of being in the midst of greatness. It is the color of course.”  (Gage 1998, 248).  Rothko made color speak. 

Rothko’s Green and Tangerine on Red (1956) certainly represents the artist’s use of color and basic geometric forms to express human emotion.  Acquired by the Phillips Collection, Washington, D.C. in 1960, the painting is composed of two large rectangles: one dark green and one tangerine.  According to Marjorie Phillips, Rothko asserted that “the striking tangerine tone of the lower section of [Green and Tangerine on Red] could symbolize the normal, happier side of living; and in proportion the dark, blue-green rectangular measure above it could stand for the black clouds or worries that always hang over us.”  (Phillips Collection 2018).  The vibrant orange and the more sedative green appear to stimulate and relieve the senses simultaneously.  (Phillips Collection 2018). 

Color & Copyright

Copyright’s purpose is to encourage the creation and dissemination of new works for the benefit of the public by granting authors for a limited time exclusive rights concerning the uses of their works.  Copyright extends to a work of original authorship, meaning that it must originate with the author and exhibit at least a minimal amount of creativity.  (17 U.S.C. § 102); (Feist, 499 U.S. at 358).  While this standard presents a low bar for copyrightability, a work does not possess the minimal creative spark if the author’s expression is obvious or inevitable. The bar for creativity, however, must not be too low to disincentivize an author’s willingness to create or to hinder the potential creativity of others.

The following discussion will focus on copyrightability, specifically originality, under current copyright law.  In order for Rothko’s works to have been eligible for copyright protection during his lifetime, the paintings would have needed to have met other qualifications under the 1909 Copyright Act irrelevant to the discussion here.  

Uncopyrightable Color

“[C]olor in and of itself” is uncopyrightable.  (Compendium (Third) §§ 313.4(K), 906.3).  Because copyright is a monopoly granted to the author concerning the uses of the work, copyright cannot fundamentally extend to color, a basic building block of visual art.  Insubstantial variations or gradations among shades within a single color are also uncopyrightable.  (Patry 2018, 4:16).  Simply adding or changing a few colors of a public domain work or a preexisting design will not render the new work copyrightable.  (Compendium (Third) §§ 313.4(K), 906.3).  For example, changing only the pearl in Vermeer’s Girl With A Pearl Earring from white to green would not create a new copyrightable work.  Similarly, mere coloration of text or a line alone is not copyrightable even though it may enhance aesthetic appeal or commercial value.  (Spilman, 115 F.Supp.2d at 154).  Expected or familiar combinations of pairs or sets of colors are also not copyrightable.  (Compendium (Third) §§ 313.4(K), 906.3).  For example, a district court in Banzai v. Broder Brothers., Co. held that a designer’s red, white, and blue tie-dye t-shirts were not copyrightable because the red, white, and blue color selection was basic and predictable.  (Banzai, No. 08-813, *3). 

Copyrightable Color

A combination or arrangement of colors may, however, be copyrightable.  (Compendium (Third) § 313.4(K)).  While the individual elements may be uncopyrightable, the selection, coordination, or arrangement of colors may contain sufficient creativity to result in copyrightable authorship.  (Feist, 499 U.S. at 358).  The choices made in creating this combination cannot be obvious or inevitable but deliberate and creative in order to qualify as an original and, thus, copyrightable work.  Changes in color to a preexisting work may also be copyrightable if the changes constitute a new, original work of authorship.  (Compendium (Third) § 906.3).  For example, adding different hair color, colored nail polish, and stylized clothing to the Mona Lisa may be sufficiently original for copyright protection. 

Copyrightability of Color: Rothko’s Green and Tangerine on Red

The low standard of originality can deceptively create a challenge when determining the copyrightability status of a work, especially when the work seemingly contains only the basic elements of art with little apparent elaboration.  Rothko’s paintings, including Green Tangerine on Red, offer an interesting canvas on which to explore the tension between copyrightability and color.  The paintings are titled and recognized by their primary feature: color.  Rothko, however, emphatically denied his position as a colorist, declaring that his paintings were not about color but human emotion.  The copyrightability of color debate is inherent in Rothko’s paintings, especially as subjects for the following academic exercise: would Green and Tangerine on Red be copyrightable if painted today? 

Resolution: Green and Tangerine on Red is Uncopyrightable 

Relying on the central tenet for copyrightability, Green and Tangerine on Red is not sufficiently original as it does not “possess more than a de minimis quantum of creativity.”  (Feist, 499 U.S. at 363).  Copyright does not protect mere variations of color or familiar geometric shapes.  (37 C.F.R. § 202.1(a)).  The painting is fundamentally composed of uncopyrightable elements: a green rectangle above an orange rectangle on a red background, with the edges of the rectangles not well-defined.  The basic shape of a rectangle is not copyrightable; and the colors green, tangerine, and red alone are not copyrightable. 

The combination of a green rectangle and a tangerine rectangle is also not sufficiently original.  A mere simplistic arrangement of uncopyrightable elements does not demonstrate the necessary level of creativity.  The U.S. Court of Appeals for the Ninth Circuit in Satava v. Lowry stated that “a combination of unprotectable elements may qualify for protection”, but “it is not true that any combination of unprotectable elements automatically qualifies for copyright protection.”  (Satava, 323 F.3d at 811).  The court further continued that “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”  (Satava, 323 F.3d at 811).  Green and Tangerine on Red’s arrangement of two rectangles of different colors, one merely floating above the other, is not sufficiently original to constitute a copyrightable work of authorship.  Placing one shape above another is an inevitable arrangement, while the selection of only three colors is not sufficiently creative.

A copyrightability analysis also does not consider the aesthetics of a work.  The attractiveness of a design, the visual effect, and the effort expelled for the creation are not suitable factors for a copyrightability determination.  (See Bleistein, 188 U.S. at 251-52).  Lastly, the uncopyrightability of Green and Tangerine on Red and similar color field paintings is in the public interest.  Granting copyright protection would hamper creativity in providing a single artist a monopoly over, essentially, green and orange rectangles.  

 Color Wheel

Color Wheel

Rebuttal: Green and Tangerine on Red is Copyrightable 

Despite the persuasive arguments above, one may also argue that Rothko’s Green and Tangerine on Red may also be copyrightable as an original work of authorship.  Rothko did not create perfect rectangles of a single, opaque application of color.  Closer examination reveals great variation in the edges.  The brushwork is painterly and uneven with variation in the density and saturation of the color.  These are not merely rectangles but more creative applications of color. 

The Copyright Office and the courts have stated that an original combination or arrangement of color may be copyrightable.  (Compendium (Third) § 313.4(K)); (Boisson, 273 F.3d at 271).  The combination of green, tangerine, and red is a not an obvious or expected color combination as compared to, for example, the combination of red, white, and blue that the court in Banzai found to be uncopyrightable.  Carefully selecting his colors, Rothko was not concerned with common color contrasts but “color combinations which [were] his own, and which [had] not been seen and felt by others.”  (Gage 1998, 253).  A combination of three colors, a “triad,” which are equidistant from each other on the color circle, produces a highly contrasted yet harmonious effect.  The colors in this particular painting, green, tangerine, and red, are not equidistant from each other on the color circle, creating a triad that is somewhat “off-kilter” and dissonant. 

While a copyrightability analysis cannot consider the aesthetics or art historical context of a painting, the emotional content of Rothko’s paintings, including Green and Tangerine on Red, discounter the assumption or interpretation of this color field painting as merely basic colors and shapes.  For Rothko, groups of colors portrayed a particular meaning, such as the combination of red and green to express antagonism.  (Gage 1998, 258).  While copyright does not protect a particular idea or emotion, the purpose of copyright aims to protect the creative expression of that idea.  Fundamentally, Rothko’s paintings such as Green and Tangerine on Red are not about color but about the unique expression of human emotion.  While each viewer may encounter the painting differently, one may argue that Rothko’s painting expresses some universality in emotion captured by this creative expression and its use of color.  Granting an author control of his particular expression fulfills copyright’s purpose of encouraging such artistic endeavors. 

The Color of Copyright

The purpose of this discussion is not to arrive at a specific answer about the copyrightability of Green and Tangerine on Red but to examine what the question can tell us about law and the painting itself.  The copyrightability of a work does not and should not necessarily interfere with the appreciation or aesthetic value of the work.  But it is in the artist’s interest to create a work that meets the originality standard for copyrightability, for the benefits of copyright protection.  Copyright may dismantle Rothko’s painting Green and Tangerine on Red into basic shapes and colors, but the creativity lies, in an artistic sense if not necessarily in a legal sense, with Rothko’s use of these elementary elements as a vehicle for human emotion.  But as in a legal copyright analysis, the viewer should observe the combination of these basic elements of shape and color.  For the combination alone truly reflects the complexity of human emotion and the various shades and hues involved.

The determination of a work’s copyrightability is not an easy one.  The originality standard is deliberately vague to encourage careful consideration of a work within the context of the overall aims of copyright law.  But sometimes the apparent simplicity of a work, upon first impression, can challenge this standard and deceive the examiner.  The elements of Rothko’s painting appear deceptively simple but upon closer consideration are more complex.  The law does not necessarily accommodate careful visual analysis supported by art historians and artists. But how can the law be more receptive to and incorporate visual analysis?  While not advocating for a change in the legal standard, the consideration of complementary and contradictory arguments of copyrightability, like different colors on a color wheel, makes such a legal determination, when eventually reached, stronger and more resilient. 

What’s your artistic and legal interpretation?  Is Green and Tangerine on Red copyrightable?

Bibliography

Anfam, David. 2012. Abstract Expressionism. Grove Art Online.Accessed June 29, 2018. http:////www.oxfordartonline.com/groveart/view/10.1093/gao/9781884446054.001.0001/oao-9781884446054-e-7000000252.

—. 1998. Mark Rothko; The Works on Canvas; Catalogue Raisonné. New Haven: Yale University Press.

Clearwater, Bonnie. 2013. Rothko, Mark. Grove Art Online. Accessed June 29, 2018. http:////www.oxfordartonline.com/groveart/view/10.1093/gao/9781884446054.001.0001/oao-9781884446054-e-7000074108.

Elderfield, John. 2005. "Transformations." In Seeing Rothko, by Glenn Phillips and Thomas Crow, 101-122. Los Angeles: Getty Research Institute.

Fer, Briony. 2005. "Rothko and Repetition." In Seeing Rothko, by Glenn Phillips and Thomas Crow, 159-175. Los Angeles: Getty Research Institute.

Gage, John. 1998. "Rothko: Color As Subject." In Mark Rothko, by Jeffrey Weiss, 246-263. Washington, D.C.: National Gallery of Art.

Patry, William F. 2018. Patry on Copyright.

Phillips Collection. 2018. Green and Tangerine on Red.Accessed June 29, 2018. http://www.phillipscollection.org/collection/browse-the-collection?id=1665.

 17 U.S.C § 102.

 37 C.F.R. § 202.1(a).

 Feist Publ’n, Inc., v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903). 

 Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003).

 Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001).

 Spilman v. Mosby-Yearbook, Inc., 115 F.Supp.2d 148 (D. Mass. 2000).

 Banzai v. Broder Bros., Co., No. 08-813 (E.D. Pa. May 7, 2009). 

 U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES (3d ed. 2017). 

 

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