IP Law Daily, COPYRIGHT NEWS: A long-running dispute over the legacy of a famously reclusive artist reaches the federal courts, (Aug 2, 2022)
By Matthew Hersh, J.D.
The lawsuit pits the artist’s distant relatives against his former landlords.
The former landlords of a famously reclusive Chicago artist wrongly took possession of his creative works after he died intestate and started exploiting them as their own intellectual property, a collection of plaintiffs who claim to be the rightful owners of the artist’s estate contend in a newly filed federal lawsuit. The lawsuit, the latest turn in a bitter and litigious dispute that broke out after the publication of a student law review in 2019 that raised questions about the ownership of the works, is sure to bring more attention to the works of the once-unknown artist (Estate of Henry Joseph Darger v. Lerner, July 27, 2022).
The lawsuit revolves around the work of Henry Darger, an artist who lived alone in a small apartment in the Lincoln Park neighborhood of Chicago before dying intestate in the 1970. The artist, according to a profile in The New York Times, had a difficult childhood, passing through an orphanage and then a mental asylum before escaping at the age of 17. He then worked as a janitor in a Chicago hospital and, according to the Times profile, “came to be known as a hermit who muttered to himself so loudly that people on the other side of doors thought he had visitors.”
After Darger was moved to a nursing home in 1972, where he would pass away a year later, his landlords entered his apartment and discovered several written manuscripts as well as hundreds of drawings, paintings, and collages. The works, administered by a foundation set up by the landlords, immediately brought widespread recognition. A profile on the webpage of the Museum for Modern Art describe “the most ambitious” of his literary and artistic endeavors as an “illustrated epic about an imaginary world of rival nations divided over the practice of child enslavement and exploitation,” known as “The Story of the Vivian Girls, in What is Known as the Realms of the Unreal, of the Glandeco-Angelinian War Storm, Caused by the Child Slave Rebellion.” In this “sprawling tale” of good and evil, the title characters “battle the evil Glandelinians, whom they despise for holding children in bondage.” The book runs for 15,000 words over a total of five volumes.
Darger’s illustrations, according to art commentators, were as distinctive as his writing. His watercolors and other illustrations for his books, according to one art retailer, contained “contrasting scenes: the idyllic rural setting of little girls at play being backed by scenes of appalling carnage and dismemberment.” His works, unknown during his lifetime but now highly sought after by collectors, have been displayed at the Museum of Modern Art, the American Folk Art Museum, and the Art Institute of Chicago and the Smithsonian. One of his paper illustrations was auctioned for over €600,000—about $800,000 at the time—by Christie’s in 2014.
The dispute over Darger’s estate might not have reached the courts if it were not for a then-law student’s 2019 article in the Northwestern Journal of Technology and Intellectual Property. The article questioned the landlords’ right to exploit the works and suggested that the rights might instead have passed to distant heirs or to the City of Chicago. The thread was picked up by Ron Slattery, a Chicago art collector who worked with a forensic genealogist to identify some 50 relatives of Darger, most of them first cousins twice or three times removed.
The relatives filed a lawsuit in the Cook County Probate Court, seeking to be declared heirs to his estate. (That case is still pending.) The heirs then turned to the federal courts, filing this lawsuit against the surviving landlord, Kiyoko Lerner, and the foundation that the two landlords created, the Nathan and Kiyoko Lerner Foundation. The lawsuit alleges that the landlord, both in her individual capacity and also through the Foundation, not only took charge of the works but also registered copyrights in many of the works in her own name or that of her husband or foundation.
This lawsuit asserts actions for copyright infringement, trademark infringement, unfair competition and false designation of origin, violations of federal anticybersquatting law, unfair competition and deceptive trade practices under Illinois law, as well as common law claims of unjust enrichment and conversion. The lawsuit seeks preliminary and permanent injunctive relief, an accounting and award of profits, statutory damages, and a declaratory judgment that the putative heirs own copyrights in the works, among other remedies.
The Case is No. 1:22-cv-03911.
Attorneys: Marcus Stephen Harris (Taft Stettinius & Hollister LLP) for Estate of Henry Joseph Darger.
Companies: The Nathan and Kiyoko Lerner Foundation
News: Copyright IllinoisNews GCNNews