Dead artists and ad campaigns: Is it okay to use art to sell?

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Is advertising art?

To answer that question, you may need to ask yourself more questions. 

Think about the last time you saw an ad that made you feel something. When your brain registered that you were looking at an ad, did your emotional response change? Could you still appreciate the ad’s message after knowing its goal was persuasion to buy?

Maybe an ad’s artistic merit is determined by processes, not goals. Ads are the sum of their parts: conceptualization, writing, design, cinematography, and editing are all artistic processes in and of themselves. Are those processes enough to imbue ads with artistic merit?  

You could also say that context matters even more than goals or processes. If art is supposed to reflect facets of ourselves and our world back to us, then it should follow that an ad’s relevance is what determines its artistic merit. 

Take this ad by Greenpeace. The ad uses unforgettable imagery and satire to communicate the most timely message of all: Climate change is fueled by human decisions. But is that enough to make it art?

Do artists think advertising is art?

In his essay “A Supposedly Fun Thing I'll Never Do Again”, David Foster Wallace said, “An ad that pretends to be art is—at absolute best—like somebody who smiles warmly at you only because he wants something from you.”

On the other hand, Andy Warhol said, “Being good in business is the most fascinating kind of art. Making money is art and working is art and good business is the best art.”

As it turns out, artists haven’t formed a consensus about whether or not advertising is art. But what happens when an ad campaign uses art to sell a product—and the artist isn’t alive to give their approval?

Basquiat and Beyoncé: A Tiffany’s campaign post-mortem

In the fall of 2021, Tiffany released their About Love campaign featuring Beyoncé, Jay-Z, and a never-before-seen Basquiat painting, Equals Pi. Tiffany purchased the 1982 painting from a private collector, well after Basquiat’s death in 1988.  

Some people loved the ad, but others were upset by it. Basquiat fans argued that the ad perverts the artist’s anti-colonialist and anti-capitalist legacies, especially considering the documented human rights abuses of diamond mining in countries like South Africa. 

Still others argued that Basquiat loved luxury products, going so far as to repeat Tiffany’s claim that the artist painted Equals Pi in the brand’s signature robin’s egg blue as an homage to the company. (The statement is likely false.)

Can we ever know if Basquiat would have approved?

We’ll never be able to ask Basquiat how he feels about the Tiffany ad. But we can ask people who knew him.  

“I’d seen the ad a couple of days ago, and I was horrified,” Alexis Adler, Basquiat’s former roommate, told the Daily Beast. “The commercialization and commodification of Jean and his art at this point—it’s really not what Jean was about.” 

Basquiat’s studio assistant Stephen Torton said on Instagram regarding Tiffany’s statement about the painting’s color, “...this very perverse appropriation of the artist’s inspiration is too much…. That “They” speculate and monetize, commercialize and manipulate every manifestation of this rebellious genius is not to my taste but that is the game. But leave deciphering his message to those who know or leave it alone.”

Others who weren’t as close to the artist left more room for Basquiat’s potential approval. The fashion designer Daphne Guinness said, “Having known him a little I don’t think he’d be upset.”

David Stark, president of Artestar which owns the global rights to Basquiat’s art, took a different approach. He told Jing Daily, “Things have changed a great deal. It’s not only accepted now, but these brand partnerships are also expected in some way. When I speak to artists about doing collaborations now, they’re very enthusiastic, whereas 10 to 15 years ago, they were very cautious about doing anything.”  

But is that really the case? Keep reading to find out how other contemporary artists are handling the commercialization of art—and what it could mean for a growing number of content creators who now make their own digital art for mass public consumption. 

Ai Weiwei and Volkswagen

In 2017, a Danish Volkswagen distributor used Ai Weiwei’s piece “Soleil Levant” in an ad without the artist’s permission. Weiwei heard about the use of his piece from Michael Thouber, director of Copenhagen’s Kunsthal Charlottenborg, where the artwork was displayed on the outside of the building for several months. 

If you know Ai Weiwei’s work, you’ll understand why the artist took offense to the ad. “Soleil Levant” depicts 3,500 salvaged life jackets worn by Syrian refugees who made the dangerous crossing from Turkey to Greece. Weiwei created the piece especially for World Refugee Day in 2017.

In an article for The Guardian titled “My art was used to sell cars – but I’m fighting back”, Weiwei said, “As an artist, I face serious consequences for this misuse of my art. The advertisement gives the false impression that I have given permission for my work about refugees to sell Volkswagen’s cars. This misrepresentation severely damages my artistic reputation and a lifetime of work defending human rights.”

After a year of unsuccessful negotiations with Volkswagen, Ai Weiwei sued the company’s Danish distributor, Skandinavisk Motor. In 2019, a court in Copenhagen awarded the artist $260,000 for “an improper exploitation of the artwork for marketing purposes.”

When Ai Weiwei moves on from this world, we’ll have no doubt how he would feel about the use of his art to sell products. “An artist must be an activist,” he says. We can only hope his estate and legacy are respected when he’s no longer with us. 

Marina Abramović and WeTransfer

Marina Abramović, on the other hand, has embraced several partnerships with large brands, including WeTransfer and Microsoft.

Known worldwide as one of the boldest performance artists of our time, Abramović is known for pushing her mind and body to extremes. For her 1974 piece “Rhythm 0”, Abramović stood still for six hours while inviting the audience to do whatever they wanted to her body using one of 72 objects on a table, including a rose, feather, scalpel, scissors, and a gun loaded with one bullet. 

Fast forward to 2021, and Abramović is collaborating with WeTransfer to teach people the “Abramović Method”: how to prepare the mind to “generate willpower and concentration” for “long durational performance work”. 

The project is a mini-masterclass on mindfulness techniques such as drinking water, counting rice, slow walking, and mutual gazing. While there isn’t any mention of WeTransfer within the videos themselves, the company is generating website traffic and brand awareness from the project. 

As far as artist-brand collaborations go, Abramović’s partnership with WeTransfer seems almost benign—the company wants to attract an artistically inclined audience, but the hard sell is nowhere to be found. 

If you also consider Abramović’s past partnership with Microsoft to promote the HoloLens 2 mixed-reality headset, it may be harder to discern the artist’s wishes about the use of her art after she passes. 

Content creators as artists: What happens when they die?

“I mean, they say you die twice. One time when you stop breathing and a second time, a bit later on, when somebody says your name for the last time.”—Banksy

The line, if there ever was one, between “celebrity artist” and “influencer” has disappeared into the early-internet time capsule. If you’re a creator with a sizeable audience, it’s time to start thinking about how to protect your likeness when you’re gone. 

In some ways, the legal system is still catching up in its handling of “personality rights” for creators who just happen to post their art to digital platforms like YouTube, TikTok, etc. In other ways, personality rights are well-positioned to help create further precedent to protect a creator’s likeness in death—but keep in mind they’re different in every state. 

There are complications for creators who are alive, let alone dead. Beauty YouTuber Lucy Kyselica, for example, woke up one morning to DMs from followers sounding the alarm over seeing her image used to sell clip-in bangs on Amazon.

When this happens, platforms like Amazon aren’t obligated to act on behalf of creators to make sure stolen content like this is taken down. Most platforms are supportive when a creator submits a report—sometimes—but it’s still up to the creator to take action. What happens if that creator isn’t alive to complain?

Creators may want to take a page out of Robin Williams’ will and restrict use of their likeness for 25 years. But if you don’t want to do that, here are some things to consider:

1. Find out how much your social accounts are worth in death. Here is a calculator to get you started, but you’ll need to consult with an entertainment lawyer to validate the data. 
2. Write a will. You can use an online service, but for anything complicated you’ll need to consult a lawyer to make sure all nuances are considered.
3. Choose one or more beneficiaries for all income from your social media accounts and likeness. 
4. Make a plan for how you want disputes over your likeness handled after you die. You may want to choose someone you trust who can fight on behalf of your estate. If your resources are bountiful, you may want to hire an agency to handle it on your behalf. 

It’s inevitable—as time goes on, more high-profile creators are going to move on from this world. Online creators are the artists of our time, and we’ll need to contend with how we want to remember them, which starts by knowing how they would want to be remembered.