Capsule Summary:

Wojnarowicz v. American Family Association1
745 F. Supp. 130
Southern District of New York, 1990

David Wojnarowicz was a New York artist whose artwork dealt with AIDS and sexuality.  American Family Association (AFA) and its director Donald Wildmon, were engaged in a campaign against the National Endowment for the Arts' (NEA) funding of artwork AFA deemed objectionable.  An Illinois university exhibited Wojnarowicz’s work in an exhibition entitled "Tongues of Flame" and published a catalogue with reproductions of the artwork.  The exhibition was financially sponsored by the NEA.  In 1990 AFA published and distributed a pamphlet aimed at publicizing NEA's funding projects in a negative light.  In the pamplet AFA reproduced 14 fragments of Wojnarowicz’s works, having taken them from the exhibition catalogue.

Wojnarowicz’s suit against AFA was based on violations of the Lanham Act and the New York Artists' Authorship Rights Act (1990).  The Lanham Act is a federal law that protects trademarks from unauthorized use. The New York act prohibits the display or publishing of artwork that has been altered, defaced, mutilated or modified – if damage to the artist's reputation is reasonably likely to result from that display.

New York Artist’s Authorship Rights Act violations:  The court found that AFA violated the Act and “created a likelihood of damage to his [Wojnarowicz'] reputation as a serious artist and to his earning potential…”

Lanham Act claim (Trademark violation):  The court found that the relevant portion of the Act applied only to clearly false and misleading commercial speech, and consequently dismissed this claim because the defendants were not engaged in selling a product. The court found that the mark was not used in commerce, but rather, was a component of AFA's non-commercial free speech. 

Copyright Act: By copying Wojnarowicz’s artwork, the court found that AFA infringed the artist's copyright in the work.  In essence, by cropping the work, AFA creating a new work based on the original work. In doing this AFA violated Wojnarowicz' exlusive right to produce derivatives of his original work.  Despite the infringement, this claim was dismissed on a fair-use defense.

Defamation: The court found that Wojnarowicz did not prove that Wildmon's conduct reached the high standard of actual malice necessary for a plaintiff that is a public figure.

Result:  Wojnarowicz received only nominal damages ($1), because the court found that he had not proven actual damages. However, Wojnarowicz was successful in obtaining an injunction, a court order, to stop distribution of the AFA pamphlet containing the altered images of his artwork. His successful claim was based upon a violation of the New York Artist's Authorship Rights Act.

Additional Resources:

Read the full court decision.

Another summary of the case is here: http://www.csulb.edu/~jvancamp/doc6.html

A brief editorial letter by Wojnarowicz’ attorney (1995) or, search "Wojnarowicz" at www.nytimes.com if the link has expired.

More about New York Artist's Authorship Rights

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1 Wojnarowicz v. American Family Association, 745 F.Supp. 130 (S.D.N.Y. 1990)




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