When she employed fair use to publish a book on Pablo Picasso’s relationship to African art, a leading art historian bucked decades of publishing tradition. And she threw open the door to whole new possibilities for budding art historians.

Photo of Suzanne Preston Blier

Prof. Suzanne Preston Blier

I first met Suzanne Preston Blier, an award-winning art historian at Harvard University, when CMSI joined others in facilitating a Code of Best Practices in Fair Use for the Visual Arts for the College Art Association (CAA), with funding from the Samuel H. Kress and Andrew W. Mellon Foundations.

Fair use is the well-established U.S. right to use copyrighted material for free, if you are using that material for a different purpose (such as academic analysis, for instance) and in amounts relevant to the new purpose.

Blier was the incoming president of the College Art Association, just as the Association launched the Code.

Self-censorship and smothered projects.

The Code addressed a huge need. Art historians, visual artists, art journal and book editors, and museum staff all have faced major hurdles in accomplishing their work because of copyright. Art historians avoided contemporary art, in favor of analyzing public domain material. Visual artists hesitated to undertake innovative projects that reuse existing cultural material. Editors, or sometimes their authors, faced monumental bills for permissions and sometimes those permissions depended on an artist or artist’s estate agreeing with what they say. Museums hesitated to do virtual tours, or use images in their informational brochures, or even to mount group exhibits, because of prohibitive permissions costs.

All together, some people in the visual arts called this “permissions culture.”

Culture change.

Once the Code came out, some things changed immediately. Museums rewrote their copyright use policies. Artists made new work. CAA’s publications—some of the leading journals in the field—adopted fair use as a default choice. Yale University Press prepared new author guidelines for fair use of images in scholarly art monographs to encourage fair use.

Blier was one of the Code’s champions. And then she needed it herself.

Picasso and Africa.

Her book project,  Picasso’s Demoiselles: The Untold Origins of a Modern Masterpiece

Cover of the book Picasso's Demoiselles

The award-winning Picasso’s Demoiselles employed fair use throughout for images.

(Duke University Press, 2019), just won the 2020 Robert Motherwell Book prize for an outstanding publication in the history and criticism of modernism in the arts by the Dedalus Foundation.

But for more than a year, it was looking like it might not come out at all.

In trying to publish this book, the  subject faced the stiffest possible copyright challenge. To tell her story, she would have to be able to show images from a variety of artists, most challengingly, Picasso. The Picasso estate is notoriously punitive and demanding. Fair use was an option in theory, but would publishers accept her claims?

She tells the story of how the book got out into the world, below.

You’re an expert in African art. How did you end up writing a book about one of the most famous modernist artists?

This is a book I never intended to write; it found me. For my previous book, Art and Risk in Ancient Yoruba: Ife History, Power, and Identity, I was doing those last-minute bits of work in the library to check sources, and I pulled out a book adjacent to the book I was looking for, an old book by the German anthropologist, Leo Frobenius. I hadn’t read it since graduate school. As I opened it up, I looked down and I said, “Wow, this is a book on African masks and they look like they’d be the ones Picasso used as models for his famous 1907 painting Demoiselles d’Avignon.” At the time I had first read the book, Picasso’s drawings for the painting hadn’t been released. This time I saw it differently and as I was looking at it in the library, I saw there was tracing paper over the pictures. There was a line drawing covering each mask, and that seemed significant too.

Pablo Picasso's Les Demoiselles d'Avignon

Pablo Picasso’s Les Demoiselles d’Avignon

The next thing I knew, I was hunting for a book from the Harvard library on Dahomey women warriors. It turned out it was in the medical school library, which should have been a sign. When I picked it up at the main library and flipped it open, I thought, “Oh my god, it’s pornography!” It was photos and line drawings of women around the world, in supposed “evolutionary” order. Photos of naked women begin with so-called “archaic,” in Papua New Guinea, right through to, southern Europe, then Denmark. In the library I’m bending over, kind of hiding it, out of embarrassment. I bring it home and realize, “Ohhhh!  Here’s another key source for Demoiselles.” This volume by Karl Heinrich Stratz had gone through multiple editions, and one was published about the same time Picasso stopped using living models. Then I found another book, by Richard Burton, which had a rendering that Picasso clearly used for his 1905 sketch Salomé.

What happened next was the clincher. I went to Paris to lecture at Collège de France. The week before my lectures, I went to hear another speaker at the Collège, a medieval historian. The speaker was a medieval historian, and on the screen was a work from a medieval illustrator, Villard De Honnecourt. This book was a modern edition of an illustrated medieval manuscript in the right time  frame for Picasso. And I thought, “Well, here’s another source Picasso used.”

Later I was also able to rediscover a photo that allowed me to date the painting to a single night in March 1907. The scene is often identified as a brothel, but bordel in French doesn’t mean bordello, but rather a chaotic or complex situation.

It was my belief that Picasso was creating a time-machine kind of image of the mothers of five races, as he understood them from the Stratz ethno-pornography book and other sources,  each depicted in the art style of that region or period. My larger argument is not only that Picasso was using book illustration sources, but also that these books invite us to see the canvas in a new light, and that, for Picasso, the painting has its intellectual grounding in colonial era ideas about human and artistic evolution.

What a sleuthing job! And so you decided to write the book then?

I wrote the first two chapters while I was in Paris doing the lecture. I saw it not as a coffee-table art book, but the kind of book you put in your knapsack as you head off to a long ride on the subway.

It was easy to write, but it was a very different story for the images. I immediately got a trade publisher in Britain to agree to publish it, and then they said they could not do it, because of problems with the Picasso Foundation.

The Picasso Foundation is notorious for making it difficult to access Picasso images, isn’t it?

The price of permissions are high, and this Foundation, like many estates, is interested in guarding the artist’s reputation as well. The difficulties of publishing about Picasso has been manifested in how little publishing was being done, and how scarce the images were in that work. Since 1973, there have been few heavily illustrated books about Picasso, except by wealthy individuals or museums in relation to an exhibition. I had heard about Rosalind Krauss publishing a work without permissions—at least that’s what I heard—anyway, she used very few images. Leo Steinberg apparently had not been able to arrange the rights for a work he wanted to do, a book of edition of his two seminal articles on Les Demoiselles.

Although, I hadn’t realized it until recently, in September 2019 there was an important case in the U.S., about a set of illustrated books by Zervos with a wide array of Picasso illustrations. The case was started in France, but a U.S. judge has allowed fair use.

But generally, yes, there’s common wisdom among art historians that the Picasso Foundation is a formidable challenge.

So how did you proceed when the first publisher backed out?

I was disheartened, but I got an agent. He sent it off to 10 or 12 trade publishers worldwide–and came up with nothing.

Then I realized I was going to have to go to a university press. That was a big decision. The trade publication will pay for the images, and do all the work on the rights clearance. But with a university press, you’re on your own.

One of the first people I contacted was legendary editor Ken Wissoker at Duke University Press. He was interested, but then came the issue of the images. I may have broached fair use with him from the start. The manuscript had gone through peer review and it was in great shape except for this copyright issue. I had quite a number of images—in the end, it was 338. At Duke, they won’t begin the editorial process until you have all the copyright clearance on images done. So I began the difficult process of deciding how to get the images.

Were you in contact with the Picasso Foundation directly?

I did contact them, in order to let them know about the project in general. I was doing final research work in Paris. I had framed the book as a travelogue in part addressing my discovery of these sources. I also wanted to find out so much more about Picasso. I’m not a modernist–I’m an outsider to the field. So I worked hard to get as much insight and criticism of the manuscript from specialists as I could.

I made it a point to meet with people at the Picasso Foundation. I had a Powerpoint of the images, which I showed to one of the key people there. Later I wrote to them, here’s the manuscript, let me know if you have any thoughts. And I heard nothing back. I had heard that with some manuscripts, they have been concerned one way or another. I didn’t want their permission for the intellectual content, but since they knew this artist and his life and family better than any academic could, I wanted their insights.

And then you started to look for permissions?

Well, I began to think about the cost of acquiring the images. The process is such that you have to go through [U.S. licensing broker] ARS. And to get a price, you have to furnish the number of images, how many are color, the size of the print run, the prospective profit, and a whole series of things we could not know. Duke wouldn’t even look at the project editorially without having the rights in hand. I had heard difficult stories—that they were interested in looking at the galleys along the way, and requesting changes, for quality control. But it wasn’t possible to do this and work with the press.

If I had to guess, I would say that it might have cost me something like $80,000 of my own money to purchase the minimum number of images for this scholarly book, from which I expect to make no money, or very little.

So how did you come to the decision to use them under fair use?

I had been president of CAA in 2016-2017, and a longtime promoter of fair use and IP issues more generally. I was involved in the creation of the Code of Best Practices in Fair Use for the Visual Arts. For me, CAA’s role in fair use is one of the most important and radical–in a positive way—thing that it has ever done.

I decided that fair use would make the most sense in that context. This was a book about an important modern artist. In addition, I’m a senior scholar—this was not my first publication. If the worst happened, if I had problems, well, I’ve had a great career and this would not harm it. I have tenure and so on. Also, as the then-president of CAA, I thought it was important to do this.

Besides, this to me was part of a larger picture of what I had done in my larger career. I’m very active locally in civic affairs, and really interested in promoting transparency, and democratic ideals. I was also very fortunate to have Peter Jaszi, a foremost legal scholar on fair use, working with me. At his suggestion, I took out an insurance policy, which for a fee—I think about $5,000—(with a $10,000 deductible) I was able to lower my anxiety level. I also paid $400 for an attorney to look over the insurance contract. And I had good friends like you, who when I got cold feet assured me it was the right thing to do.

Also, Duke is a publisher that has been willing to go ahead of others on fair use. So we began to consider that option. Duke was very supportive, and they ended up hiring extra legal counsel for this. In the end, I had to rewrite certain sections, and redo some images at the suggestion of outside counsel, to strengthen the fair use argument.

Can you give me an example of something you had to change in the text to strengthen the fair use argument?

With  a museum photograph of an African mask, for example, I had to explain why this particular way of photographing the work was critical to the argument in my book. I had to add a few sentences to justify my selection of several Picasso works as well. I also had to give reasons in my text for why each of the chapter epigraphs was necessary.

Did you have to alter the use of imagery in any way to accommodate fair use?

There are changes the press made, design-wise, that reflected in part the decision to employ fair use. Many of the photos are shown in  black-and-white and the majority are reduced size.

This was a necessity because of the quality of images I could get. The difficulty I had was that I could only employ fair use if I could get access to the materials without going through the Picasso Foundation. So I had to acquire nearly all the images from published books, and many of the Picasso images were published in black and white and at a very small size, in a grainy context. I had to spend a lot of time hunting down the best possible images to use. In my book they are shown in relatively small size, along with information on where you can find color versions online.

That didn’t bother me too much, though. For readers and viewers at this juncture in the Internet era, we have become expert at extrapolating the fuller figure from a small image.

There is also a small spread of color images, a couple Picasso works as well as from other artists. For these images, color was central to the book.

The decision to publish largely in black-and-white was, I think, also related to the fact that the Picasso Foundation and others are concerned that color representations be incredibly accurate, and it is very hard to get the color exactly right, when copying from books. You also have an issue with paper quality in getting accurate representation.

The cover is a handsome design, and very clever. They broke up the images into thumbnail-like sections, requiring you as a viewer to put them together as one image, similar to how Picasso was thinking in the early stages of cubism, where you as a viewer of an assemblage have to assemble them in your own mind, to make it work for you as a whole.

How was the book received?

It was a finalist for the Prose Prize, a prize of publishers to authors. My previous book won it in 2016. I didn’t expect to win it this time again, in 2019.  I was very honored that it was a finalist. It was also featured in the Wall Street Journal’s holiday art book list. And I just heard that it won the Dedalus Foundation’s 2020 Robert Motherwell Book prize.

Has the Picasso Foundation seen the book?

To date I’ve heard nothing. I was thinking earlier that the Picasso Foundation might want to stop it pre-publication. So much so that when I came back from travel in Africa, I went first to my academic mailbox, and was relieved when I saw no big legal envelope. But there has been no pushback. I certainly gave them the opportunity to comment on the content while it was still in manuscript. And last April or May, I went to France to meet with the curators at Musée Picasso about contributing an essay to a catalog. I sent them an article draft, which they decided not to publish, which is fine, but also sent them a copy of the manuscript, and of course the Musée speaks to the Foundation.

Interestingly, the two cases where the Foundation has sued or prevented publication that I know of has to do with children’s books about Picasso. I don’t know what it means.

Does the wider art history community know about this?

I hope this personal story makes a difference. We still have a lot of educating to do, in spite of the work we did around the Code. I continually get, on the art history listservs, questions–“How can I get permission?”, and I always say, “Use fair use.” People still don’t trust it or believe it’s more difficult than it is.

At the CAA conference I just went to in Chicago, there seems to be a division between presses. Presses at private universities–Yale, Princeton, MIT, Duke—seem to feel more comfortable exploring this. But for university presses at some public institutions, these legal issues have to be taken up with the state attorney general, and there can be real nervousness stepping outside a narrow parameter. I learned this speaking to an editor at a state university press in a progressive state, who believes they’re being held back because of this fear.

I was pleased to see at this same conference a pamphlet on fair use by Duke University Press’s former Director, Steve Cohn. In his essay, he mentions my Picasso book and how happy he is that Duke chose to publish it this way. I figured,  if Steve is openly talking about this fair use project,  then the proverbial cat is out of the bag, and I could be more open and provide some of the back story from my end.