E11580.jpg

Welcome to the Legal Palette

An art law blog

Whistler’s Nocturne in Black and Gold: An Impression of Truth & Justice?

Whistler’s Nocturne in Black and Gold: An Impression of Truth & Justice?

James Abbott McNeill Whistler,  Nocturne in Black and Gold, the Falling Rocket , 1875, oil on panel, Unframed: 23 3/4 × 18 3/8 inches (60.3 × 46.7 cm), Framed: 36 3/4 × 30 1/4 × 3 1/4 inches (93.3 × 76.8 × 8.3 cm), Detroit Institute of Arts, Gift of Dexter M. Ferry, Jr., 46.309.

James Abbott McNeill Whistler, Nocturne in Black and Gold, the Falling Rocket, 1875, oil on panel, Unframed: 23 3/4 × 18 3/8 inches (60.3 × 46.7 cm), Framed: 36 3/4 × 30 1/4 × 3 1/4 inches (93.3 × 76.8 × 8.3 cm), Detroit Institute of Arts, Gift of Dexter M. Ferry, Jr., 46.309.

Upon viewing Whistler’s Nocturne in Black and Gold (“Nocturne”), the art critic John Ruskin wrote that the painting appeared as if the artist had flung “a pot of paint into the public’s face.”  In response to this review, Whistler sued Ruskin for defamation and sought 1000 pounds in damages alleging harm to his reputation.  The large personalities of both the plaintiff and defendant in the case of Whistler v. Ruskin attracted interest from outside the art world, with both the press and the public following the courtroom drama.  After hearing arguments made by Whistler’s and Ruskin’s respective counsel and testimony from artists and art critics, the jury found Ruskin liable for defamation but awarded Whistler damages of only a farthing. The jury had followed the judge’s instructions for finding that the case should never have been brought to court.   

Despite this discouraging statement from the jury, Whistler’s defamation claim against Ruskin was worthwhile in the sense that it embodied a larger conflict between the aesthetic and Victorian art movements.  The nature of Whistler’s representations in Nocturne and the subsequent legal challenges he faced in proving his case parallel the debate over truth and the role of the artist inherent in the contemporaneous artistic movements.  While the jury may have concluded that Whistler v. Ruskin should never have gone to trial, the importance and relevance of the case have extended over the centuries with the opportunity to examine the eternal debate within art and law: what is truth?  With this overarching question, Whistler’s Nocturne and Whistler v. Ruskin together expose for artists today the inherent challenges in bringing a defamation claim against an art critic and having to overcome the subjective nature of truth within law and art. 

The Aesthetics of James McNeill Whistler & Nocturne

American painter and printmaker, James McNeill Whistler (1834-1903), was a significant force in the avant-garde artistic movements in France and England during the second half of the nineteenth-century.  In contrast to the naturalism championed by the Royal Academy, Whistler’s style grew increasingly impressionistic and abstract as his career progressed.  (Landry).  Whistler’s paintings exhibited, particularly in the 1870s, bold, sweeping, and expressive brushwork, as well as a lack of finish.  (MacDonald 2003); (Curry 1987, 70).  Preferring the coarse texture of the canvas, Whistler thinned the oil pigment to a consistency of water allowing the paint to drip freely as he worked quickly.  (Landry).  Sensitive to small variations in color and tone, Whistler “carefully orchestrated color harmonies” and adopted musical titles for his works to emphasize this manipulation of color and mood.  (Curry 1987, 70); (MacDonald 2003). 

One such “color harmony,” Whistler’s Nocturne in Black and Gold: The Falling Rocket (“Nocturne”) (1875) depicts a night-time firework display in London’s Cremorne Gardens, painted primarily with three muted yet harmonious colors (blue, green, and yellow).  Not in the representational style that was orthodox at the time, Nocturne instead “conveyed a sense of atmosphere” with the glowing colors, drifting smoke, and dark sky.  (Lydiate 2012-2013, 122).  The composition freed Whistler from the constraints of faithful representation advocated by the Victorian naturalist painters, in order to focus on the arrangement of color, line, and form.  (Teniswood-Harvey 2010, 73).  The resulting abstraction and restricted palette directly opposed contemporary Victorian painting.  (Teniswood-Harvey 2010, 74).  This Nocturne, like Whistler’s other “nocturne” paintings, were “poetic evocations of the artist’s visual experience of and emotional response to his subjects.”  (Henshaw 1985, 202).

Nocturne’s palette and composition exemplified the Aesthetic Movement of the 1870s and 1880s in Britain and subsequently in the United States that developed in response to the absolutism and morality of Victorian painting.  Espousing the principle “Art for Art’s Sake,” art of this movement existed for beauty.  (Singer 1954, 346).  Truth to nature was not an objective for these artists.  (Grove Art Online 2003).  The artist did not need to paint true to life but according to his own vision of beauty.  (Singer 1954, 347).  Explaining this movement, Walter Pater, an art critic, wrote in 1873 that people should consider art “not of objects in the solidity with which language invests them, but of impressions, unstable, flickering, inconsistent, which burn and are extinguished with our consciousness of them.”  (Landry).

Whistler v. Ruskin 

Whistler exhibited Nocturne, with the price tag of 200 guineas, along with seven other paintings in the Grosvenor Gallery. Whistler’s paintings were displayed with works by other artists who painted according to the Royal Academy orthodoxy.  John Ruskin, one of England’s leading art critics, reviewed the exhibition in his July 1877 publication of Fors Clavigera.  While Ruskin praised the works of Edward Burne-Jones, an artist associated with the Pre-Raphaelite Movement, he attacked Whistler’s work and Nocturne in particular, by writing:

“The ill educated conceit of the artist so nearly approaches the aspect of willful imposture. I have seen and heard much of cockney impudence before now, but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint into the public’s face.”  

Whistler sued Ruskin for libel, demanding damages of 1000 pounds and costs. 

The specific question before the court in Whistler v. Ruskin was whether the review was a fair and bona fide criticism of the painting.  Whistler’s counsel argued that Ruskin’s criticism was false and malicious when it accused Whistler of being an imposter and an ill-educated “cockney pretender,” who lacked the proper qualifications to create valid art.  (Merrill 1992, 63-64, 138-140).  Whistler testified that his creative process focused on “an arrangement of line, form and colour first” and that Nocturne “was not painted to offer the portrait of a particular place, but as an artistic impression that had been carried away.”  (Merrill 1992, 144, 154).  Ruskin’s counsel in turn argued that his criticism was a fair and honest expression of opinion, without any indication of maliciousness.  Instead, the review sought to provide the public with an “absolutely true” description of the painting and to highlight the seemingly paltry time and effort Whistler devoted to the painting for a price tag of 200 guineas.  (Merrill 1992, 54, 182). 

After hearing testimony from artists and critics, the jury found Ruskin liable for the defamatory statements but awarded damages to Whistler of only a farthing, consistent with the judge’s instructions that such outcome is appropriate if the jury believed that the case should never have been brought to trial.  (Merrill 1992, 194).  Whistler declared bankruptcy shortly after the trial in 1879. 

Overview of Defamation Law

Many elements of modern American defamation law originate from English common law – the foundation for Whistler’s legal claim in Whistler v. Ruskin.  Today’s defamation law, similar to that in Victorian England, seeks to allow an individual to vindicate his or her good name and to recover from harm caused by the defamatory statement.  (Milkovich, 497 U.S. at 12).  While the precise elements of a defamation claim today may vary among the various state laws, a cause of action for defamation exists when false and unprivileged statements about a person are communicated (i.e. published) to a third party, resulting in injury to that person’s reputation.  (Restatement § 581A).  Injury to a person’s feelings alone is insufficient for a defamation claim.  (Coltoff 2018).  A showing of actual malice, defined as a knowing falsehood or reckless disregard for the truth, is necessary for a successful defamation claim if the plaintiff is a public figure.  Truth is a complete and absolute defense to a defamation claim. 

The Art of Defamation 

The verdict of Whistler v. Ruskin suggested that Whistler should not have brought the claim even though the jury found Ruskin’s review defamatory.  Is there something peculiar about a law that discourages a claim when a wrongdoing has occurred or is there something particularly challenging about finding art reviews defamatory? The arguments made by the parties in Whistler v. Ruskin almost 140 years ago show that even under modern defamation law, it is inherently difficult for an artist to bring a successful claim against an art critic due to the subjective qualities of both art and art criticism and the underlying public interest in supporting the free expression of both the artist and the critic.  

A False Opinion?

When formulating the plaintiff’s legal strategy, Whistler’s counsel had to overcome the privileged status of art criticism under nineteenth-century English law, which provided that comment on a work of art is generally automatically immune from any legal consequences.  Under modern American law, an artist/plaintiff must likewise prove for the first element of a defamation claim that criticism, which inherently concerns personal judgment, is false.  A disparaging opinion is not actionable because an opinion cannot be proven true or false.  (Truth 2018 § 6:14).  Some courts have interpreted evaluative statements about art as opinions.  For example, a court found that a statement made by an historian that a stained glass window was inauthentic was a personal opinion and thus incapable of being proven false for a defamation claim.  (McNally, 764 F.Supp. at 849). 

Art criticism, which is inherently based on opinion and personal judgment and thus cannot be proven true or false, provides a challenging basis for artists, like Whistler, on which to build a defamation claim.  Recognizing the subjective nature of aesthetic judgment, Ruskin’s counsel plainly asserted in his defense that the review was “absolutely true” and the description of Nocturne as if a “pot of paint” was thrown onto the canvas was a succinct “definition of a manner which is calculated to draw attention chiefly by its impertinence.”  (Merrill 1992, 101).

The subjectiveness of art itself weakens a defamation claim.  The debate of “truth” in art underlined the arguments made by both Whistler and Ruskin and may have even served as the actual impetus for the case.  Upset by Nocturne’s abstract representation of fireworksRuskin and other proponents of the Victorian art movement believed that art should be true to life as it was immoral to try to improve upon nature created by God.  (Landry).  For Whistler, truth in art derived from personal impression rather than naturalistic representation.  Whistler testified that Nocturne represented an artistic arrangement of color and not an actual place – hence the title of the work as “Nocturne” and not “View of Cremorne.”  (Merrill 1992, 145).  The subjective nature of art and thus intuitively art criticism accentuates the challenge of proving art criticism as true or false for a defamation claim. 

A Kind Critic?

Whistler’s counsel understood that the law would protect Ruskin’s opinion unless they could prove to the jury that Ruskin’s review was malicious as a personal attack on Whistler’s artistic qualifications.  Whistler’s counsel thus argued that the review implied that the artist was an ill-educated “cockney pretender”, which amounted to an accusation of fraud regarding the price of the painting.  (Merrill 1992, 140).  Under modern law, a plaintiff must show for a defamation by implication claim that the defendant made a false statement with actual malice, if the plaintiff is a public figure.  (Sullivan, 376 U.S. at 279-80).  Actual malice in this context means that the defendant knew the statements were false and acted with a reckless disregard for the truth.  

A showing of actual malice presents a particularly high bar for an artist/plaintiff who must consider the critic’s intentions at the time of publishing the defamatory statement.  A significant portion of Whistler’s own testimony focused on his skill and position as a recognized artist by discussing his invitations to exhibit at numerous galleries in England and that the Royal Collection at Windsor Castle even had some of his etchings.  (Merrill 1992, 142).  This focus on Whistler’s accomplishments as an artist, however, did not necessarily show Ruskin’s maliciousness in writing the review.  But it does demonstrate for modern artists the difficulties in proving this legal element, as the critic may have various motivations in writing a particular review. 

In fact, Ruskin’s counsel argued that not only was maliciousness absent but that the statement was made to further public interest in revealing a fraud: a “coxcomb” selling a painting for 200 guineas that looks like “a pot of paint” thrown on the canvas.  Focusing on the deficiencies in Whistler’s style, Ruskin’s counsel questioned Whistler how he could charge two hundred guineas for “knocking off” a painting in two days.  (Merrill 1992, 147).  Whistler responded that such price was “for the knowledge…gained in the work of a lifetime,” emphasizing his position as a valid artist, albeit one representing a different artistic style than that championed by Ruskin.  (Merrill 1992, 148).  Despite the weaknesses in Whistler’s case, his response may have indicated to the jury that Ruskin’s review was more about the critic’s personal dislike to the artist and his work ethic than the style and composition of Nocturne itself, granting a verdict in favor of Whistler despite the miniscule damage award.  Unfortunately, Whistler v. Ruskin does not more clearly illuminate the line that demarcates when an art review is malicious or not.

Flinging Mud or A Pot of Paint?

The legal arguments made in court for Whistler v. Ruskin may have been unremarkable then, but the outcome of the trial affected both Whistler and Ruskin for the rest of their lives and still resonates today.  The unsatisfactory resolution represents a struggle with the law and the limits of criticism.  The case grappled with balancing Whistler’s reputation and Ruskin’s right of free speech along with public interest in fair and balanced art criticism and the progress within the arts.  But the case did expose that the distinction between criticism of a work of art and the criticism of an artist is imprecise. The law may demand the absolute truth. But who can define the absolute truth in art and even in the law itself?  These rhetorical questions underlie the challenge with which an artist must tackle when seeking to protect his/her reputation against art criticism by pursuing a defamation claim.  The law and the subject of art criticism both expect the artist to have a thick skin, as every work will include a personal piece of the artist.  But when and should art, instead of the courtroom, be the appropriate avenue for an artist to protect his or her own reputation?  How can the artist and the lawyer sustain the perpetual pursuit of truth in art, criticism, and the law?

Bibliography

Curry, David Park. 1987. "Total Control: Whistler at an Exhibition." Studies in the History of Art 19: 67-82.

Grove Art Online. 2003. Aesthetic Movement; Grove Art Online. Accessed September 30, 2018. http:////www.oxfordartonline.com/groveart/view/10.1093/gao/9781884446054.001.0001/oao-9781884446054-e-7000000566.

Henshaw, Julia P. 1985. 100 Masterworks from the Detroit Institute of Arts. New York: Hudson Hill Press.

Landry, Erin. n.d. Whistler v. Ruskin: Morality in Art Versus Aesthetic Theory. Accessed September 30, 2018. http://people.loyno.edu/~history/journal/Landry.htm.

MacDonald, Margaret F. 2003. Whistler, James (Abbott) McNeill; Grove Art Online. Accessed September 30, 2018. http:////www.oxfordartonline.com/groveart/view/10.1093/gao/9781884446054.001.0001/oao-9781884446054-e-7000091375 .

Merrill, Linda. 1992. A Pot of Paint; Aesthetics on Trial in Whistler v. Ruskin. Washington, D.C.: Smithsonian Institution Press.

Singer, Irving. 1954. "The Aesthetics of 'Art for Art's Sake'." The Journal of Aesthetics and Art Criticism 12 (3): 343-359.

Teniswood-Harvey, Arabella. 2010. "Whistler's Nocturnes: A Case Study in Musical Modeling." Music in Art 35: 71-83.

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

McNally v. Yarnall, 764 F. Supp. 838 (S.D.N.Y. 1991).

Restatement (Second) of Torts (1977).

Coltoff, Paul M., et al., Injury to reputation, 53 C.J.S. Libel and Slander § 14 (2018).

Truth and falsity in defamation actions, 1 Rights and Liabilities in Media Content § 6:14 (2018).

Lydiate, Henry, What is Art? A Brief Review of International Judicial Interpretations of Art in the Light of the UK Supreme Court's 2011 Judgment in the Star Wars Case: Lucasfilm Limited v. Ainsworth, 3 J. Int'l Media & Ent. L. 111 (2012-2013).

Hogarth’s The Marriage Settlement: A Cautionary Tale of Two Lawyers

Hogarth’s The Marriage Settlement: A Cautionary Tale of Two Lawyers

Roberti’s Portrait of Ginevra Bentivoglio & Sumptuary Laws: Fashion Skirting the Law

Roberti’s Portrait of Ginevra Bentivoglio & Sumptuary Laws: Fashion Skirting the Law