In July of 2007, the exterior wall of the Birmingham Art Museum displayed a haunting image. In its center was a photograph, depicting a classic MasterCard advertisement, but with a few key differences. Rather than the traditional picture of a beaming couple embarking on an adventure, (“There are some things money can’t buy. For everything else, there’s MasterCard.”), the photograph displayed a radically different scene. There, in the background and foreground, stands an African American family, of varying ages. They surround a devastated father and mother clad in brimmed hats, glasses, and overcoats, seated, at the funeral of their twenty-seven-year-old son.
The familiar MasterCard logo sits toward the lower left corner of the photograph, and the text scattered across the image reads:
3-piece suit: $250
new socks: $2
gold chain: $400
9mm pistol: $79,
Picking the perfect casket for your son:
On February 2, 2000, Songha Willis Thomas was murdered, execution-style, during a robbery in front of dozens of individuals outside of a Philadelphia nightclub. He did not resist. He was murdered, apparently, for the thick gold chain worn by the friend who accompanied him. There was no other reason. The image of his grieving family constitutes the subject of Priceless #1 (2004), a work by Songha’s cousin, roommate, and best friend, Hank Willis Thomas.
At any other point in history, Songha might have become part of a sobering, yet monolithic, set of statistics regarding black males in America. But it happened that the artist, Hank Willis Thomas had decided that Songha’s memory would stand for something else. So he created the image—photographing his own family at the funeral, grieving over the loss. By juxtaposing the image with the familiar slogan made popular by the MasterCard advertising campaign, he compels us to examine the meaning, the presence, and the absence, behind the very idea of pricelessness.
After the Birmingham Museum acquired the photograph, it was displayed on its exterior wall. Almost immediately, the piece sparked a citywide controversy, largely because many of its residents mistakenly thought that the photograph was an actual MasterCard advertisement disparaging African Americans. The picture, after all, looked just like a regular MasterCard advertisement. If it wasn’t meant to critique MasterCard, then why did the artist use the logo? To confuse the public? Or to send a different message? Initially offended by the image while driving on her way to work, a local reporter broke the story, embroiling the community in a debate about advertising, consumer confusion, and the limits of artistic freedom.
In response, the artist wrote an editorial that appeared in the Birmingham local newspaper. “In the ’80s and ’90s,” Hank Willis Thomas explained, “a lot of young African American men were getting killed over Michael Jordan sneakers. Today, they're getting killed over gold chains, looks, and words.” If Songha had died for a piece of jewelry, Thomas explained, Priceless #1 ensures that the image of his grieving family will live forever in our collective memory. “It is this idea,” Thomas expressed, “that someone could be killed over a tiny commodity […] I want to question what makes these commodities so precious that they are worth defining, and more importantly, taking another person’s life?”
The intersection of advertising, race, and consumerism is an issue that has long concerned Thomas, a gifted photographer whose work has won both critical and popular acclaim. In other projects from his series “Branded,” Thomas juxtaposes the image of a black male with a series of Nike “Swoosh” logos, explaining that he aims to draw a connection between “how slaves were branded as a kind of ownership, and [how] today we brand ourselves.” His works are testaments to advertising’s power to draw a subtle and powerful connection between the branding of slaves, marked as human commodity, and the way in which we willingly undertake the same task.
However, although Thomas’s artworks display powerful critiques, they also run the risk of falling within a legal gray area. Here lies a curious irony. According to the Supreme Court, artistic expression is entitled to the highest possible First Amendment protection, equivalent in power and protection to that of the purest political speech. Yet the picture suddenly changes when brands—literally—enter the fray. While the law normally protects the freedom of individuals to speak and to express themselves, those freedoms can often stop short when they conflict with the intellectual property rights of others, particularly where brands are concerned. Since Priceless #1 and Branded Head (2003) display appropriated logos, those companies might argue that these works lead consumers into thinking that the works are officially sponsored by the company, confusing the public as a result. And even when court judgments reflect strong protections for artistic freedom, those pronouncements rarely find their way into the army of cease-and-desist letters some artists receive after appropriating a company’s brand.
Hank Willis Thomas’s dual act of artistic expression—and indeed, some might argue, political protest—represents today’s modern version of civil disobedience: a massive worldwide phenomenon that I call semiotic disobedience. Today, aided by the power of digital media, thousands of artists, activists, and ordinary citizens across the world—and the internet—routinely reverse the power of advertising, transforming ads and logos into a global conversation between corporation and consumer. For this reason, Thomas’s work accomplishes a sort of double irony: not only does he critique the constant pull of branding and advertising, but he also risks being targeted for violating the very properties within the advertising he criticizes. In this sense, his work continues in the tradition of artists like Andy Warhol and Richard Prince, all of whom appropriated recognizably commercial images in order to say something more profound about modern America and its romance with consumption. But while artists like Warhol often escaped being sued for the images they appropriated, in the past, many artists and activists like Thomas can be far more vulnerable than previous generations have ever been.
ContributorSonia K. Katyal
SONIA K. KATYAL is Chancellor's Professor of Law at UC-Berkeley Law School, where her work focuses on art, intellectual property, and civil rights (with a special focus on race and sexuality). Professor Katyal is the co-author of Property Outlaws (Yale University Press, 2010) (with Eduardo Peñalver), which studies the intersection between civil disobedience and innovation in property and intellectual property frameworks. She is also the first law professor to receive a grant through the Creative Capital/Warhol Foundation for her forthcoming book, Contrabrand, which studies the relationship between art, advertising, trademark, and copyright law.