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Erik den Breejen, Fire, 2011
Erik den Breejen, Fire, 2011


Jan. 30, 2012

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Perhaps no one was more excited by the long-awaited release of the Beach Boys’ unfinished 1966 album Smile than Erik den Breejen. Even before Smile came out late last year, the young painter (and lifelong Beach Boys fan) had set to work on a series of paintings that transformed the lyrics into brightly colored text-blocks, assembled into shapes of ocean waves and smiling lips.

When the exhibition opened at Freight and Volume gallery in December (and was reviewed in these pages by Charlie Finch), den Breejen sent word of the show to Beach Boys lyricist Van Dyke Parks. Den Breejen had tracked down Parks’ manager, thinking that she might share his artworks with his idol. A few days later, Den Breejen was met with a less than enthusiastic reply: a cease-and-desist letter mailed to the gallery from Parks’ attorneys.

While these saber-rattling missives sometimes go disregarded as legalese scare tactics, in this case, “they seemed prepared to fight,” said Freight and Volume owner Nick Lawrence. “Van Dyke was personally offended. . . he seemed upset that he wasn’t consulted ahead of time about the show, which is a valid point. But in terms of fair use, I think it’s a bit of a stretch.”

In an email, attorney Jay Butterman weighed in. “It does seem that this is a fairly clear fair-use situation in that the paintings only take small snippets of the work, and the use of the words is clearly transformed far from their original purpose.”

But Lawrence and den Breejen are hoping to avoid having to make that distinction altogether. “If it were a Richard Prince or an Andy Warhol situation it would be handled very differently,” Lawrence said, “but Erik’s an emerging artist.” The works, a little more than half of which include Parks’ lyrics, sell for between $1,000 and $14,000.

Instead of fighting back with lawyers, den Breejen and the gallery have approached Parks himself to try to negotiate some kind of out-of-court agreement. Parks was already credited in the exhibition’s press release and in a booklet den Breejen distributed at the gallery, but soon he could be considered a collaborator -- entitling him to a percentage of the proceeds. (Van Dyke’s manager did not respond to a request for comment.)

Until the two sides settle their differences, the gallery has put on hold at least two sales inquiries for paintings containing the Smile lyrics.

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