Pssst! If you stop and look very, very carefully, you might be able to see them. They silently hover over parts unknown. Only a few cases report their existence. And, like UFO spotters, their victims warn to avoid their crosshairs. If not, your art may be confiscated. Who are they? Vaguely written laws. To be specific, federal counterfeit laws. “Art is supposed to imitate life,” one judge cautioned, “but when the subject matter is money, if it imitates life too closely it becomes counterfeiting.”
While statutes aimed at counterfeiters rarely ensnare artists, there are a few reported cases, most notably that of J.S.G. Boggs. His “Boggs Bills,” painstakingly detailed drawings of currency, often use the same colors and dimensions of U.S. banknotes. But it’s hard to imagine anyone mistaking Boggs’s one-sided illustrations, with their subtle satirical twists, for genuine banknotes. Indeed, Boggs never intended his art to deceive, but rather disturb, forcing the viewer to question the value of money—ultimately a matter of faith.
Boggs doesn’t sell his drawings. Instead, he barters them for everyday goods and services. Boggs explains to the store owner that he is an artist and that the bills are not real cash. If they accept, Boggs insists for a receipt, which he then sells to art collectors, who then search for the holder of the “Boggs Bill,” hoping to negotiate a sale. Eccentric? Yes. But his art isn’t a one-off. He’s bartered thousands of drawings, with one receipt fetching $420,000. His art has been collected by the MOMA in New York, the Smithsonian Institution, and unfortunately, the Secret Service, who in the early 1990s confiscated some 1,300 drawings.
Boggs sued for the return of his work. Instead of drawing up a check to cover his lawyer’s fees—$1 million—he simply paid in “Boggs Bills” (which isn’t a bad idea considering the trial’s publicity value). His suit forced the D.C. Circuit into the awkward role of part-judge, part-art critic. It ultimately held the government seizure as lawful under 18 USC § 474(a) paragraph 6, which prohibits anyone from making “any engraving, photograph, print, or impression in the likeness” of genuine U.S. currency, regardless of the person’s intent. In addition, the Court found the art to be contraband under 18 USC § 504(1)13, which requires that depictions of money be in black and white, and within certain size limits (although the Treasury Department now allows color photos; hence I can post the image above without fear of men in black raiding my apartment). Although the U.S. government has never prosecuted Boggs as a counterfeiter (the British and Australian governments were unsuccessful), his art remains in custody to this day.
Boggs’s drawings were doomed by sloppy law. The court conceded that “if intent to defraud is statutorily required, no jury could find that the statute applies to Boggs.” In other words, Boggs lost the minute his pen crossed some ill-defined line: his art was deemed “far too similar to authentic currency,” to the point where a “person of average intelligence” could not “immediately distinguish them from genuine currency.”
Perhaps Boggs’s unusual story can be chalked up to a philistine court or the pitfalls of loosely- worded legislation. But it wasn’t the first time a court has confronted the issue. The Boggs court correctly observed that for over a century, the interests of American artists and anti-counterfeiting authorities have collided. In 1886, the Secret Service seized William Michael Harnett’s trompe l’oeil painting “Five Dollar Bill.” Harnett wasn’t prosecuted, though he was ordered to cease painting currency. But the feds couldn’t stop the emergence of a unique American art genre—money painting, a subject that dominated 19th century political debate.
The 1960s and 70s exemplified art’s clash with politics and money. President Richard Nixon’s decision to take the U.S. dollar off the gold standard transformed the way we think about money. Its value was no longer based on a tangible shiny rock, but faith, an even shakier foundation. In the 1974 case of Wagner v. Simon, the Secret Service went after an art student who had photographed a $20 bill, replacing President Jackson’s portrait with that of Nixon. In the eyes of the federal district court, this photo violated the “likeness” test under § 474. The court found it irrelevant that the student had intended to criticize Watergate.
It recently occurred to me that this missing intent requirement may be what protects some currency art from Secret Service incinerators, art such as Joseph DeLappe’s In Drones We Trust—a project inviting individuals to stamp currency with a tiny image of a predator drone. I first saw DeLappe’s drone while visiting the exhibit To See Without Being Seen: Contemporary Art and Drone Warfare, hosted by the Kemper Art Museum at Washington University. What are the legal implications when genuine currency is the medium, rather than subject, of art? Defacement of currency falls under 18 USC § 333:[w]hoever mutilates, cuts, defaces, disfigures, or perforates, or unites or cements together, or does any other thing to any bank bill … with intent to render such bank bill … unfit to be reissued, shall be fined under this title or imprisoned not more than six months, or both.
So how much abuse can dead presidents take before they’re considered “mutilated”? According to the U.S. Treasury Department, “Any badly soiled, dirty, defaced, disintegrated, limp, torn, or worn out currency note that is clearly more than one-half of the original note, and does not require special examination to determine its value, is not considered mutilated.” So it would’ve been hard to prosecute Andy Warhol under § 333 when he famously signed a one-dollar bill.
But more importantly, § 333 requires something crucial: intent to render the currency unfit to be reissued. Thus, President Obama wasn’t entirely correct when in 2012, he declined to autograph a dollar, explaining it was illegal. Hypothetically, even if Obama had accepted the offer, but his pen broke, drenching the dollar in ink, rendering it “unfit to be reissued,” he still lacked the necessary intent. And it would be particularly difficult to prosecute DeLappe under § 333 because he chose the dollar to be the vehicle of his message for one reason—he intends his drone dollars to change hands as often as possible.
But if this is the case, then why did H&R Block suddenly stop handing out dollars with stickers advertising their tax services? Because it likely violated 18 USC § 475, which prohibits anyone from writing, printing, or otherwise impressing upon any U.S. coin or currency, “any business or professional card, notice, or advertisement, or any notice or advertisement whatever.” This law raises interesting questions in the case of DeLappe’s website, where he sells his stamps. Does it matter that DeLappe’s campaign is a non-profit? Would it be constitutional to apply § 475 to political speech? What about art? Drawing such lines seems arbitrary, especially in DeLappe’s situation.
While there may be limits to an artist’s ink on the face of currency, that doesn’t mean art is powerless to determine whose face is printed on that currency. Consider Lin-Manuel Miranda, the creator of Pulitzer prize-winning musical Hamilton, who helped convince Treasury Secretary Jacob J. Lew to keep Hamilton’s portrait on the $10 bill, and announcing that Harriet Tubman would replace Jackson on $20.
In short, 2008 dealt a major blow to our faith in the dollar and the institutions it represents. Artists can play a major role in evaluating that faith. But lawyers should help protect that role, especially when the law doesn’t intend to.
by Kenny Geisler