The New York Times had an article on Febraury 19th, about artist Daniel Johnston of Waller, Texas (pop. 2,032). Marty Schwimmer's Trademark Blog has a great copy of one of his works. The Times article is called "Man-Child in the Promised Land." Johnston's works are included in two upcoming New York City shows: (March 2) Whitney Musuem Biennial and a March 16 exhibition at the Clementine Gallery in Chelsea. Mr. Johnston is also a composer, whose music has been covered by Beck, Tom Waits, and Wilco. In 2005, a documentary was released, entitled The Devil and Daniel Johnston. Mr. Johnston, 45, has hit the big time.
The title of the documentary refers to the demons that have haunted Mr. Johnston for a long time. He has been diagnosed, according to the NY Times, as having a serious bipolar disorder, and has serious health issues too. He has spent periods in mental hospitals and lives with his elderly parents.
Now that his works are generating serious money, the inevitable battles have occurred, as detailed in the newspaper article. For copyright purposes, an important issue is competency: is Mr. Johnston competent to transfer rights in his works? He has not been deemed incompetent and may not be. He has no legal guardian. He is 45, so being a minor isn't an issue as it was for Franky Lymon and the Teenagers. These issues are state law issues: while Section 204 (the Copyright Act's version, in part, of the Statute of Frauds) sets forth the requirements for a valid transfer, it says nothing about the competency of the person who signs it, nor about issues of duress (another issue in the Frankie Lymon case), lack of consideration, and the like, all of which must, therefore, be filled in by state law. And then there will be choice of law issues too, depending on where the assignments are signed and whether they have forum designation provisions.
I doubt we have heard the last from Mr. Johnston, either in the art world or the copyright world.
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4 comments:
Given the subject of (at least) that one drawing, I'd think Marvel Comics would have something to say here as well? (I'm not registered with NYT, so I don't know if this is addressed in the article.)
Is mental competency required for authorship as a matter of copyright law? My answer would be "No." Even the most lunatic ravings would be entitled to protection. There is no harm I can think of in granting authorship status to a mentally incompetent person producing otherwise qualifying works and it is unlikely the courts could make rational distinctions with respect to competency in questions of authorship. But, competency is a required element of many rights accorded by states and the federal government. It is also a tangential question whenever aliens and gods are the purported authors of works.
The Times didn't discuss the similarity to a certain Marvel character. The question on competency ran not to whether one has to be competent to obtain protection, clearly you needn't be, but who has authority to license or transfer rights in the works of those who may not have the competency to make such decisions. Aliens and gods (small "g") presumably can take care of themselves
Yo la Tengo has also covered Johnston -- a song called "Speeding Motorcycle."
There's also a live version of the cover where Yo la Tengo was playing a live gig on the radio in New Jersey and Johnston called in and sang the vocals to Speeding Motorcycle over the phone while the band played in the studio.
It's a truly powerful tune...
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