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September 23, 2022

Frank Stella and the Rights of the Artist

The iconic artist and Artists Rights Society share what makes their NFT collaboration groundbreaking in the eyes of the law
Credit: Frank Stella, Geometry VI, 2022. Courtesy of the artist and ARSNL
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Frank Stella and the Rights of the Artist

At 86 years old, Frank Stella intuitively understands the zeitgeist as well as the potential of NFTs. Long a champion of artists’ rights, often in conjunction with Artists Rights Society (ARS) and now with ARSNL as well, the idea of automated royalties driven by smart contracts, and a push for a more equitable system for artists, clearly resonate. Aware that the market for his work prices out most younger collectors, digital editions also appeal as a way to increase accessibility to a new generation. 

Stella was already using computers in the early 1990s to devise forms and shapes that would be difficult if not impossible to conceive of with analog tools alone. His new NFT project, “Geometries” (2022), therefore represents the culmination of a thirty-year dialogue with computation and a sixty-year exploration of painting and physical space driven by one of the most iconic artists of his generation. As an artist known for challenging and expanding standards, not for following them, his new works push the potential of NFTs by licensing his 3D models for future remix by their owners — as ever leading the way by fearlessly opening new avenues of exploration for others to follow. To celebrate the launch of Frank Stella’s genesis NFTs, I asked Jessica Fjeld from Harvard Law School to join me in exploring the legal implications of Stella and ARSNL’s groundbreaking project.

Jason Bailey & Jessica Fjeld: How did you hear about NFTs?

Frank Stella: I’d heard chatter for a while, but the first time we began to take them seriously was at the suggestion of a friend of mine, Danny Sullivan, who is a former race car driver. Then we started talking to ARS (Artists Rights Society) to help us figure out if this was something that might be good. 

JB & JF: What appeals to you about NFTs generally, and specifically in seeing your work minted as an NFT?

FS: The appeal is two-fold.

In a very abstract way [NFTs] seem like a possible way to solve some of the issues that come from ever-increasing reproducibility caused by technological progress in imaging and fabrication. But more concretely, they may be a way for artists to seize the resale rights that I want us to have.
Frank Stella, Geometry IV, 2022. Courtesy of the artist and ARSNL

JB & JF: Whose idea was it to make your works available for remixing?

FS: Part of the appeal of the project is the hope that the geometrical ideas that we’ve developed might be interesting to other people, and that they might be able to do something exciting with them. 

JB & JF: Some artists are reluctant to let other people iterate on their work. What is your perspective?

FS: I completely understand that perspective, and I have it myself in most cases. But, to some extent, iterating on other artists’ work is kind of how art history goes. I also think of this like copying a work in a museum to learn about it. I’m hoping it will be an educational experience and a jumping-off point for people. 

JB & JF: Who do you see as the audience for these NFTs?

FS: I really don’t know. The youths? People who are interested in abstract art? I hope. 

​​Frank Stella, Geometry XXI, 2022. Courtesy of the artist and ARSNL

JB & JF: How do you think the painters you learned from and looked up to when you began your career would have responded to the idea of NFTs?

FS: I have no idea, and I don’t want to put words into anyone’s mouth. But the painters I most looked up to were all teachers, and I think that these [NFTs] might have value as teaching tools.  

JB & JF: Do you see any equivalence between the abstract outputs of generative artists working today and modernist painting, or indeed minimalism?

FS: In some cases. Some generative art is more about mathematical or social ideas rather than the kinds of pictorial problems that are informed by modernism or minimalism as art historical movements. But I certainly see the parallels in some work. 

Frank Stella, Geometry VIII, 2022. Courtesy of the artist and ARSNL

JB & JF: What rights do the collectors have, and how did you decide which rights to offer? 

Samantha Moore, Director of Legal Affairs, ARSNL: The two unique rights that “Geometries” collectors have is the right to create derivatives and the right to 3D print the artwork. Frank proposed including both of these rights.   

JB & JF: Allowing NFT collectors to “remix” the works is an unusual choice. Can you tell us about why that’s part of this offering, and what excites you about it?

SM: Admittedly, I was the member of our team most staunchly opposed to the license to create derivatives. The rest of the ARSNL team was excited about it. Ultimately, it’s what Frank wanted, and that’s what is most important. From my purely legal perspective, there are two main reasons to offer “remix” rights: 1) People will do it anyway, so why not be proactive and provide consent? And (2) It absolutely encourages creativity and community. 

Of course, I’ve come around from my initial hesitation and now I think it’s a confident, collaborative position to take, and it’s been so exciting and fulfilling to see this community share and discuss their “remixes.”

Frank Stella, Geometry 5, 2022. Courtesy of the artist and ARSNL

JB & JF: Do collectors who sell a Stella NFT retain any rights after the sale?

SM: The rights licensed to the collector travel with the NFT, so once you sell or transfer the NFT, your license terminates and those rights are licensed to the next owner. However, the Collector’s Rights stipulate that you retain any 3D prints you’ve created (we refer to them as “Models” in the Collector’s Rights) or any other derivative or “remixed” works you’ve created while you owned the NFT. The terms that pertain to the use of those Models or derivatives continue to apply.   

JB & JF: If a collector uses their NFT to make and mint their own remixed artwork from the Stella model, can they use Stella’s name? What limits do you place on that?

SM: If a collector creates a new NFT using the original Geometries NFT as source material, it’s a new work created by that collector. Of course, it uses and incorporates the original NFT, but it isn’t the artwork that Frank created.  

Accordingly, we don’t allow collectors to use Frank’s name in connection with the exploitation of any derivative, other than an attribution requirement in the metadata. The thinking with the attribution requirement was to highlight the “lineage” of these new works. 

Frank Stella, Geometry II, 2022. Courtesy of the artist and ARSNL

JB & JF: Some folks have been fractionalizing NFTs and essentially selling shares. What rights, if any, would transfer to the folks who purchased fractions of an NFT in that scenario?

SM: While I think fractionalization is an interesting concept and it’s an exciting tool that enables collectors to own a piece of an NFT that they might not otherwise be able to purchase, if any of the “Geometries” NFTs are fractionalized, the rights granted only transfer to an owner who owns 100% of the NFT.  

JB & JF: Moonbirds NFTs recently received a lot of attention for granting a Creative Commons license, having previously offered collectors only commercial rights. This angered collectors who felt like part of what they had been paying for when they bought the NFTs was exclusive rights, which were then made available to everyone. Is there a reason your focus is on collectors, rather than open licensing?

SM: To first touch on Moonbirds: in my opinion, it’s problematic to sell an artwork with a certain set of rights (and value) attached, and then materially change those rights at a later date. That being said, the collector’s rights could have explicitly allowed the grantors to do exactly that. I think this just highlights how important it is to understand the relationship you’re entering into with the grantor and what rights you may or may not receive. 

Frank Stella, Geometry XVII, 2022. Courtesy of the artist and ARSNL

As for our focus on collector’s rights over open licensing: ARSNL is the digital arm of Artists Rights Society (ARS), which has been protecting and promoting artists rights for 35 years. Copyright law was enacted to promote creativity by protecting certain creative expressions. On the flip side, open licensing is a great concept and also encourages a lot of creativity. Ultimately, what works for one project doesn’t work for others, and I don’t think it makes sense to expect most or all NFT projects to be Creative Commons projects simply because of how they’re created and distributed. 

At ARSNL, we guide and counsel our members, but ultimately they determine which, if any, rights they’d like to license or keep.

For this project, we put together a set of Collector’s Rights that reflect the artist’s values. What we ended up granting strikes a balance between protecting and valuing the rights and interests of the creator while acknowledging the expectations and norms of this medium’s collectors and community. 
Frank Stella, Geometry XII, 2022. Courtesy of the artist and ARSNL

JB & JF: What drove Artist Rights Society (ARS) to explore NFTs?

Katarina Feder, CEO, ARSNL: ARS has a 35-year history of protecting the intellectual property rights of artists. When the Beeple sale happened in 2021, I was flooded with inquiries about the space both from our artists and from third parties who wanted to license properties that we represent. Pretty quickly, it became apparent that many of these third parties really didn’t understand the licensing process, and frankly were not pitching projects of significant artistic interest.

We recognized that NFTs and blockchain technology provided a really interesting opportunity for our artists and we wanted them to be able to take advantage of it on their own terms. Thus, ARSNL was born. ARS has long been a proponent of resale royalties and has even been the financial backer of lobbying efforts in Congress for the ART Act. We are so excited that the private sector is embracing what our government has thus far failed to do. 

JB & JF: What will distinguish ARS’s NFT offerings from others in the space? What are you hoping to achieve through this program?

KF: We truly are an artist-first platform. We want to execute on incredible work from both traditional artists and crypto native artists.

With our traditional artists, we have put an emphasis on looking for works that, for various reasons, could not have been presented before this technology. For example, a traditional architect might have had an incredible idea that defied the laws of physics and couldn’t be built. But in the metaverse, the laws of physics don’t apply. 
Frank Stella, Geometry X, 2022. Courtesy of the artist and ARSNL

JB & JF: Who are some of your other members who may be interested in exploring future offerings?

KF: While I cannot disclose the names of artists we have been speaking with (and there really are many!) I can say that we have collaborated with other platforms on forthcoming NFTs by Leonora Carrington, LeRoy Neiman, and generative artist Anna Lucia, who is collaborating with the quilters of Gee’s Bend, Alabama. Other ARS members who have been active in engaging with NFTs include Damien Hirst and Marina Abramović.

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Frank Stella was born in 1936 in Malden. At the age of 24, he was included in the defining exhibition, “Sixteen Americans,” at the Museum of Modern Art, New York. From the mid-1980s to ’90s, Stella’s work became increasingly sculptural as his canvases gave way to three-dimensional forms derived from cones, pillars, waves, French curves, and decorative architectural elements. To create these works, Stella used computer-aided design (CAD) and 3D printing, a practice that he maintains to this day. He has used his position as a celebrated figure to advocate for artists’ rights, joining ARS in its lobbying efforts for resale royalty. 

Born in Malden, Massachusetts, in 1936, and based in New York, Stella has produced an extraordinary body of work over the past six decades. He studied painting at Phillips Academy, Andover and Princeton University, graduating in 1958 with a degree in History. Since his first solo gallery exhibition at Leo Castelli Gallery in 1960, Stella has exhibited widely throughout the US and abroad. Early in his career, his work was included in a number of significant exhibitions that defined the sphere of post-war art. In addition to “Sixteen Americans” in 1959, he was included in “Geometric Abstraction” and “Structure of Color” at the Whitney Museum of American Art, New York, in 1962 and 1971; “The Shaped Canvas” and “Systemic Painting” at the Solomon R. Guggenheim Museum, New York, in 1964-65 and 1966; and Documenta 4, Kassel, in 1968.

In 1970, at the age of 34, Frank Stella became the youngest artist ever to receive a full-scale retrospective exhibition at the Museum of Modern Art, New York. He received a second retrospective at the same institution in 1987, which is unprecedented in the museum’s history. The author of many essays and articles exploring painting and abstraction, Stella delivered a lecture series as the Charles Eliot Norton Professor of Poetry at Harvard University in 1983. He has received honorary degrees from Princeton University, Bezalel Academy in Jerusalem, Dartmouth College, and the Friedrich Schiller University in Jena, Germany. He has also been the recipient of a great many honors and awards internationally. In 2000, he became the only American artist to be given a solo show at the Royal Academy of Arts, London. 

Samantha Moore is Director of Legal Affairs at ARSNL and Artists Rights Society. She has spent her career in business and legal affairs at various leading entertainment and technology companies, including Spotify, Condé Nast, and Lorne Michaels’s digital-first studio, Above Average. Moore continues to focus on intellectual property and licensing matters. 

Katarina Feder is a founder and CEO of ARSNL, a digital studio and marketplace born out of Artists Rights Society’s 35-year legacy. For the last five years, Feder has been Director of Business Development at Artists Rights Society. She maintains a monthly advice column on Artnet, “Know Your Rights,” where she answers questions on matters of intellectual property and more!

Jessica Fjeld is a Lecturer on Law at Harvard Law School and the Assistant Director of the Cyberlaw Clinic at the Berkman Klein Center for Internet & Society. She is a member of the board of the Global Network Initiative, which works to protect free expression and privacy of internet users. Fjeld is also a poet, the author of Redwork (2018), and the recipient of awards from the Poetry Society of America and the 92nd Street Y/Boston Review. She holds a JD from Columbia Law School, where she was a Hamilton Fellow, James Kent Scholar, and Managing Editor of the Journal of Law and the Arts. She also has an MFA in Poetry from the University of Massachusetts and a BA from Columbia University.

Jason Bailey is the creator of the art and tech blog and founder of GreenNFTs and ClubNFT, where he serves as CEO.