A few days ago I was forwarded Stephen Elliott’s “Daily Email” from April 17th 2013 that he sends to his Rumpus listserv (the full entry is reprinted below). It was forwarded to me because I am the artist that he refers to in the following passages:

In my last movie there is a shot of a mural protesting capitalism. The painter found out her mural was in the movie and wanted compensation. She talked about the movie like it was a commercial enterprise. Not for me, I told her. She asked if I would be OK with people watching my movie and not paying for it. Of course I would, I said, though it wasn’t my decision ……

I told the woman with the mural she might be right. What I meant was I’ve been wrong before and if a judge or someone like that ruled in her favor I would respect the decision, but personally I didn’t agree with it. And then we found common ground and decided to do an event together to help a non-profit she worked with. And then we never got to that, but maybe we still will.

My response:

  1. I’m consistently irritated by Stephen’s presentation of himself as the naïve – “I never thought of that” artist whose never considered what it means to use someone else’s work without permission or credit … or that About Cherry is a commercial endeavor … none of this entered his mind … as though this was like a student project. And for Stephen as a first time filmmaker, it likely was to some degree. However, were all of the producers, co-producers, executive producers etc., many of whom are seasoned moviemakers (see below) really that incompetent? At one point Stephen said to me (when we met in March) that anyone who saw the film wouldn’t think that it was a professional endeavor because professional filmmakers would make sure that they had permissions and releases …. Implying that in fact, his team was not professional.
  2. Stephen’s depiction of the situation is deceptive in its representation of what actually happened – the shot of me painting my mural WAS NOT RANDOM – it was a planned and staged shot and I conveyed to one of the folks on the crew that if they used it they would need to get written permission from me and CAMP – Stephen says it was him I spoke with (see email exchange below), though it wasn’t and that became clear when we did meet in March.

Here’s what did happen:

In June 2011 I was painting my mural CAPITALISM IS OVER! If You Want It. In the early afternoon a film crew of approximately 7 – 8 people showed up to film on the alley. They stopped in front of my mural while I was painting and filmed for a good 10 minutes. I asked them what they were doing and one of the cameramen responded that they were filming a movie – to which I asked: “What kind of film?” They giggled and said: “It’s an independent film.” They  continued shooting on the alley and I gave my usual spiel to one of their crew which is basically: “If any of this is going to be used for commercial purposes you need to get written permission from the artists and Clarion Alley Mural Project,” (CAMP is a fiscally sponsored project of Intersection for the Arts) and I gave him my card. His response was something to the affect of: This is just a small film shoot and we’ll be in touch if needed. They then left.

I continued painting until around 7:30/8pm at which time I started packing up – it was really cold and windy and I was so tired from painting on the alley since 9am. Just as I was putting the last of my paint in my car, which was on the alley, the entire crew showed back up and asked if I was leaving to which I said “yes.” They then begged me to stay as I was cleaning my brushes saying: “We came back just to film you, but we had to get another lens.” I told them I was really tired and would be back the next day. One of the crew then pulled me aside and said: “Actually this is a new film with James Franco, Heather Graham, Dev Patel, Ashley Hinshaw, and Lili Taylor.” I said “hmmm, I really like Lilli Taylor, but I’m super tired” They begged some more and I finally said “Okay you can film me, but if it ends up getting used, as I said earlier, you need written permission from me and CAMP.” So I took all my paints back out and started painting – they got the footage – and then took off.

I never heard from them again.  A friend then told me that she’d seen my mural in the film in summer 2012. I was able to get a screener of the film and was both livid and disappointed to see that yes, in fact they’d used the scene that they’d begged me to pose in (when I was already freezing and tired – you’ll notice I’m wearing a winter coat and hat in the shot) and they used footage of Jet Martinez and Kelly Ording’s mural (though not staged as mine), they NEVER got permission from ANY of us or CAMP (as we are CAMP organizers) and THEY DIDN’T CREDIT US OR THANK US. I did follow-up and ask that my work be removed; however, the producers said they couldn’t. So now my work (and Jet and Kelly’s) is forever a part of Stephen’s work whether we want it or not.

3.  The issue was never at its core about the money – the issue is and has always been one of respect and ensuring that the work of Clarion Alley Mural Project is not used for commercial purposes. I feel like a broken record when I say this, but for some reason people don’t hear it:  the murals / art on Clarion Alley is FREE for people to enjoy – it’s a community art space; however, it IS NOT a space for commercial ventures (and yes Stephen your project was a commercial venture) to use as a set/brand for urban street art and urban grit. We have in fact, worked with a couple of other commercial projects in the past – Nash Bridges very early on, and then Lenny Kravitz for his video Storm. In both cases the production companies were extremely thorough and respectful – ensuring that we had contracts in place and that the artists and CAMP were compensated and credited. Both of those deals were also made long before Clarion had become bombarded with folks trying to turn it into their own profit-making project – be it as the image it presents or directly by giving unsanctioned and inaccurate tours.

4.  Stephen and I and Christopher Statton did meet in March to discuss potential ways we could come to a positive outcome. Stephen reiterated his belief that anything shot outside is free for use and doesn’t need permission or doesn’t heed credit – be it art or otherwise. I tried to explain the situation to him from the point of his efforts to keep American Apparel out of the Mission – that by his setting a precedent that it’s okay to use public art in commercial endeavors without permission or credit – it opens up the alley to becoming more of an amusement park than it already is. This is when he noted that folks wouldn’t believe it was a big production because if it were, the filmmakers would have been more professional and thorough.

We then moved on to discussing potential redress of the situation. Chris and I suggested:  1) James Franco could create a T-shirt for CAMP – to which Stephen conveyed that James Franco won’t give him the time of day anymore; and 2) Stephen could organize a benefit reading for CAMP to which Stephen said he could commit to showing up and being a part of a reading, but not organizing it. Stephen suggested that realistically the only thing he could provide (other than showing up for a reading) was free advertising for CAMP in the Rumpus to which we conveyed that CAMP really doesn’t need advertising. And as Stephen wrote – that’s how we left it … so perhaps if CAMP – as a volunteer-run org – ever gets the time to organize that fundraiser, we’ll see if Stephen can read at it.

Enderby Entertainment

http://enderbyentertainment.com/

Elizabeth Destro

http://www.imdb.com/name/nm1989592/

Jordan Kessler

http://www.imdb.com/name/nm0450347/

Producers:

Rick Dugdale

http://www.imdb.com/name/nm1067987/

Elana Krausz

http://www.imdb.com/name/nm0701504/

Executive Producer:

Bendrix Bailey

http://bendrix.com/author/bendrix/

Producers:

Elizabeth Destro

http://www.imdb.com/name/nm1989592/

Jordan Kessler

http://www.imdb.com/name/nm0450347/

Executive Producers:

Kim Leadford

http://www.imdb.com/name/nm3228092/

David Raines

http://www.imdb.com/name/nm1547647/

Claire Severance

http://www.imdb.com/name/nm3094659/

Randy True

http://www.bizjournals.com/sanfrancisco/stories/2008/08/11/story11.html?page=all

Executive Producers:

Chris Kientz

http://www.imdb.com/name/nm1863552/

Peter Acworth

http://en.wikipedia.org/wiki/Peter_Acworth

Producers:

Gordon Bijelonic

http://www.imdb.com/name/nm0082012/

Datari Turner

http://www.imdb.com/name/nm1484310/

Director of Photography

Darren Genet

http://www.imdb.com/name/nm0312790/

Production Design

Michael Grasley

http://www.imdb.com/name/nm2019925/

Co-Producer:

Anisa Qureshi

http://www.imdb.com/name/nm1993920/

More Credits and Thank Yous:

Stephen Elliott’s Post:

It’s been forever since the last daily email and I started to write to give you an update of what’s going on with our movie, Happy Baby, but in light of what happened in Boston that seems hard. It’s interesting that we make sense of the world through art and yet so often tragedy shuts us down. Partly because there is so much narcissism in art, and then the world comes in like a flood.

A while ago we did a fundraiser for the movie. It was a few weeks or more after the storms in New York and someone said it was inappropriate to raise money for our movie after the tragedy. She was right, of course, though I’m not sure what she was doing to help and she’s not sure what I might have been doing to help. It was unfortunate, we had a month for our Kickstarter, and we’d scheduled the event before, and we thought maybe enough time had passed so we went through with it. It was perhaps not the best decision.

Not long ago I got a note from someone wondering how we could be so concerned with a movie, or have any fun really, considering what’s going on in North Korea. The note was mostly all caps and the writer was seventeen years old.

In my last movie there is a shot of a mural protesting capitalism. The painter found out her mural was in the movie and wanted compensation. She talked about the movie like it was a commercial enterprise. Not for me, I told her. She asked if I would be OK with people watching my movie and not paying for it. Of course I would, I said, though it wasn’t my decision.

I mean, how does it all fit? A friend wrote from Boston, she said she didn’t like people.

I like to think of two people sitting close together, sharing a space.

One of my favorite stories is the one about the NFL playing football the Sunday after JFK was shot. I like what it says about trying to do the right thing and failing. It’s so often hard to know what the right thing is. And, I would argue, when you’re making art you frequently risk doing the wrong thing. Otherwise, you play it safe, don’t offend anyone, and one day it’s over.

It’s madness. It was madness in the seventies. You could argue that the madness is the same but you’d have to admit the weapons are getting bigger. Same madness, better tools. For years I’ve been skimming over the details of bombings in other countries. I was going to saywe’ve been skimming, but I don’t know that you have. It was on Game Of Thrones this week, a television show that we can all agree doesn’t actually make sense, and someone said that for all the carnage of war most people just go on with their lives. He meant, perhaps, in the countries that are not at war. I’ve been in Gaza twice, once during the second Intifada and then during the war in 2006. People were not going on with their lives.

I told the woman with the mural she might be right. What I meant was I’ve been wrong before and if a judge or someone like that ruled in her favor I would respect the decision, but personally I didn’t agree with it. And then we found common ground and decided to do an event together to help a non-profit she worked with. And then we never got to that, but maybe we still will.

**

Audio Portraits of Artists and Writers at Work: Lea Thau.

Collecting vinyl: Records Of You.

**

Love,
stephen

My exchanges with Stephen:

On Jan 24, 2013, at 11:50 AM, Megan Wilson wrote:

I’ve put it in my calendar – let’s check in when the date gets closer.

I do however want to say that I really really don’t appreciate that you used my work in your film without permission – especially after I had told the folks filming that if they decided to use the clip of me or any of the murals on Clarion Alley that they would need to get written permission from the artist, as well as Clarion Alley Mural Project - we deal with this all the time - for-profit ventures contacting us to use the Alley.

Also – the filming of me and my work wasn’t just randomly shot  - the crew, who had filmed in the daytime actually came back that evening as I was packing up and was just about to leave and they begged me for a good 10 minutes to unpack so they could film me – and I again kindly reiterated the CAMP policy. Its even more egregious since you’ve been a part of the Bay Area arts community for awhile now and we have many mutual friends - as well as the other artists from CAMP whose work was used.

From: Stephen Elliott <stephen@stephenelliott.com>
Date: January 24, 2013, 11:27:11 AM PST
To: Megan Wilson <megawilson@aol.com>
Cc: <aspat@att.net>
Subject: Re: P Ryan re re M Wilson Artwork in About Cherry

Hi Megan,

I can’t say I share your beliefs, but I’m not a lawyer. And that’s what courts are for, a third party to make a decision when two people disagree.

I don’t think of myself as making a movie for profit. It’s certainly not why I made the movie. I’m an artist, I don’t do anything for profit. For example, I took $10,000 less on my last book to publish with a smaller press because I thought the editor had more integrity. And I edited two anthologies to raise money for Oxfam. And I hosted a series of readings for six years at the Makeout Room to raise money for progressive political candidates.

I’m the person responsible for keeping American Apparel off Valencia.

I live in an artist co-op.

And I haven’t made any profit from About Cherry. It’s not yet “in profit” as they say. But again, that’s not my concern. It probably looks like a big budget movie because of all the famous people but they were all working for the Sag minimum, like $200 a day, mostly because they liked the script and/or liked me. It was a low budget indie feature.

My personal feeling, and that’s all it is, is that anything facing outside people should be allowed to film. I consider the sight line public space. I was there that day. I was the one that asked you to be in the picture. These things you say you said, you didn’t say them to me. If I had known we wouldn’t have taken the shot.

This happens in the literary world too. Like, if someone cuts and pasts a big chunk of something I’ve written and posts it on facebook, I guess, would be similar? I never worry about it though. That’s just not how I want to live my life.

I had to change my ticket. I’m actually back March 10 so we could have coffee on the 11th if you like. But it kind of seems like we just have different views of this. I’m not insisting I’m right. These are just my opinions. The lawyers and judges can say what the rule of law is.

I’ll be more aware of the concerns for outdoor art in the future. And I certainly wasn’t trying to offend anyone. If it had ever crossed my mind that an artist wouldn’t want their art to be seen in a movie it wouldn’t be there. So I’m glad you brought that to my attention.

The issues you bring up aren’t anything I’ve ever considered. But for this one it kind of seems like maybe the court should decide? I don’t mean that maliciously, I just mean that I really believe in the wisdom of the dispassionate third party.
stephen

On Jan 24, 2013, at 7:11 PM, Megan Wilson <megawilson@aol.com> wrote:

Stephen,

Wow! we do have different beliefs on public art and its usage and respect for public artists. Given your progressive political work, which is great, I would not have thought that you would distinguish public art/artists as different from gallery artists (?) – to the point that you wouldn’t even give credit to the public artists that you used – or to Clarion Alley Mural Project …

Also, I didn’t realize that About Cherry was not a for-profit project – so you and everyone else worked on it to break even? That’s amazing!! – does this mean that it can be screened for free?

Thanks,
Megan