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THE NEWS-PRESSSUNDAY, APRIL 13, 2008 | PUBLISHED SINCE 1884 news-press.com FINAL | $1.50

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The News-Press,A Gannett NewspaperCopyright 2008

PHOTOGALLERIES:‘GREEN’ OPENING:Slough preserve buildingfirst of its kind in Lee.

EXPLOREnews-press.com Lee home market clogged

BY DICK HOGANdhogan@news-press.com

Lee County’s inventory ofunsold homes has swollen torecord levels, depressing pricesand discouraging the construc-tion of new homes — and the glutmay be even worse than it

appears.Asreal estatesales inLeeCoun-

ty dwindled over the past twoyears, the inventory of unsoldhomes swelled to almost 16,000 _seven times what it was in 2005 atthe height of the market whenbuyers outnumbered sellers.Almost 5 percent of the total hous-

ing units in the county are for sale.Because of the glut, contractors

find it impossible to compete inprice against existing homes —and any dwelling in less than per-fect condition has little chance ofbeing sold.

The News-Press recently tooka look at a one-day snapshot of thehomes in Lee County for sale onthe Multiple Listing Service, the

system by which Realtorsannounce their listings to eachother.

Some statistics:¸ 5,189 single-family houses

were listed for less than $200,000countywide;

¸ 1,325 were going for $700,000or more;

Thousands are available; few are being sold

Tomatopickersfeelingspied on

BY AMY BENNETT WILLIAMSawilliams@news-press.com

Who would spy on a couple ofnonprofit human rights groups?Who would hire a professionalinfiltrator to sit in on the organi-zations’ planning sessions? Whowould attack them on the Webfor their efforts to improve thelives of workers who pick pro-duce for the world’s largest fastfood chains?

That’s something the Coali-tion of Immokalee Workers andthe Student/FarmworkerAlliance would like to know.

In recent months, they’vebeen vilified online and in e-mails that can be traced to theMiami headquarters of BurgerKing, a company that’s opposedthe groups’ efforts.

The alliance also identified aspy in its ranks.

Burger King spokesman KevaSilversmith says he knows noth-ing about any Burger King effortto spy on the Immokalee groups.

“I have no idea what shouldbe secret about helping farm-workers,” Silversmith says.

And unless the e-mails orpostings came from the compa-ny’s communications office,they’re not official, Silversmithsays.

“Are employees allowed touse our corporate Internet forpersonal e-mails?” he asked.“Yes, but only communicationsthat come from this office can beconsidered representative ofBurger King’s official position.”

The coalition works to improvethe lives of its mostly immigrantmembers, many of whom do low-wage labor in Florida’s fields; thealliance is a key ally. In recentyears, the coalition has scoreda number of hard-fought,

Aide says infiltratorshave been at meetings

PHOTOS BY JOHN DAVID EMMETT/THE NEWS-PRESS

¸ Attorney Yale T. Freeman represents Robert Fontaine in a suit filed against Fontaine by RobertRauschenberg over artwork taken from trash in front of Rauschenberg’s Captiva home.

¸ Born Milton Rauschen-berg Oct. 22, 1925, in PortArthur, Texas.¸ Went to the Kansas CityArt Institute in 1947, studiedin Paris at the AcademieJulian, went to the experi-mental Black Mountain Col-lege in North Carolina in1948 and studied at the ArtStudents League in NewYork City through 1951.¸ Married artist Susan Weilin 1950. Their son, Christo-pher, was born in 1951. Theydivorced in 1952.¸ Redefined art in 1954 bybeginning to create “com-bines,” a mixture of paintingand sculpture that includedeveryday found objects. Hismost famous combine is“Monogram,” using a stuffedgoat.¸ Started experimentingwith the use of silkscreenand repetitive images in1962, anticipating the PopArt Movement.¸ Also embraced perform-ance art.¸ Contemporary and friendof artists Jasper Johns, CyTwombly, James Rosenquist,Joseph Albers and others, aswell as dancer and choreog-rapher Merce Cunningham,and musician and composerJohn Cage.¸ Awarded the Grand Prizefor painting at the 1964Venice Biennale, the firstAmerican ever.¸ Moved to Captiva Islandin 1970.¸ A Rauschenberg retro-spective organized by theNational Collection of FineArts in Washington, D.C.,traveled throughout the U.S.in 1976-78.¸ The Guggenheim Muse-um in New York put on aRauschenberg retrospective(400 works) in 1997. Theexhibit traveled to Houstonand Europe in 1998.¸ Continues to hold exhibitsin New York City, abroad andat the Bob RauschenbergGallery at Edison College.

ROBERTRAUSCHENBERG

Naples defendant claimsRobert Rauschenberg’sartwork was sold legally

More artwork was taken,target of lawsuit allegesBY MARY WOZNIAKmwozniak@news-press.com

Robert Fontaine, a Naplesartist accused of taking from thegarbage the work of Captivaartist Robert Rauschenberg andselling some of it fraudulently,claims at least two othershelped themselves to thetrashed cache.

If so, many more unauthorizedRauschenberg works could befloating around in art limbo inthe public domain.

The revelation comes in a casethat has attracted internationalattention.

Rauschenberg is consideredthe greatest living contemporaryartist, known for an array ofwork including paintings, sculp-ture and mixed media.

The lawsuit could define forartists what rights they have totheir own work, legal expertssay.

The case is scheduled to go totrial in February. Court paperssay both parties are unlikely tosettle.

In an interview, Fontaineadmitted taking two rolls of workthat contain colored images thatcould have been used inRauschenberg’s creative process.He said the rolls were taken 10years ago from trash placed onthe road outside the artist’s Cap-tiva Island home.

Fontaine admits to have soldthree pieces of the work, but hedoes not admit to selling themfraudulently.

¸ What: A U.S. Senate hearing on theconditions on Florida tomato pickers’working conditions.¸ When: 10 a.m. Tuesday, April 15¸ Where: The Dirksen U.S Senate OfficeBuilding, Room 430, Washington, D.C.¸ Information: Call (202) 224-5141.

¸ What: Delivery of petitions to BurgerKing.¸ When: 3:30 p.m. Monday, April 28.¸ Where: Burger King corporate head-quarters, 5505 Blue Lagoon Drive, Miami¸ Information: Call 657-8311.

IF YOU GO

¸ See COALITION A13

¸ Surplus of propertyCape Coral and Lehigh Acres seesharp increases. A2¸ Prices slide High inventoryof homes has kept prices down. A2¸ Recent drive Local devel-opers, builders say sale prices andspecial events helped sales. G1

INSIDE

Punta Rassa’s cattle ranch history is now a cash cow.

news-press.com/galleries: View more photos of Punta Rassa.

Trash or treasure?The debate rages

¸ WEATHERHigh 82 Low 70Breezy p.m., 20 percent chance ofrain; forecast B12

INSIDE

Immelman in chargeTrevor Immelmanhas a two-shotedge overBrandtSnedeker,and is sixshots betterthan TigerWoods, entering today’s final round ofthe Masters.

¸ SPORTS, C1

National treasureZion National Park in southern Utah isthe perfect place for a springgetaway.

¸ TRAVEL & LEISURE, E1

Back in the airAmerican Airlines receives clearanceto return all of its 300 grounded jetsto service.

¸ NATION & WORLD, A4

Skeeter beatersLee Countyagency celebrates50 years offighting SWFlorida pests —mosquitoes.Mosquito controlemployees gather to mark the eventat a open house.

¸ LOCAL & STATE, B1

There is no more iconic artist than Rauschenberg.¸ Robert Fontaine, Naples artist“ ”

¸ See HOMES A2

¸ Artists Rights Alook at how an artist’swork, including paintings,drawings, prints, sculp-tures and photos, is pro-tected by the VisualArtists Rights Act.

¸ A glimpse ofthe work Details ofthe art that Fontaine tookout of Rauschenberg’strash and other piecesthat could be missing.

¸ The case Legalexperts weigh in on thelawsuit and how theresults could affect otherartists.

¸ History Other law-suits involving artistsallegedly taking imagescreated by others for usein their own works.

INSIDE/A12

¸ Photo gallery: View art taken from Rauschenberg’s trash. View other examples of his art.news-press.com/galleries

¸ See ART A12

MORE THAN JUST

D NUTSQuick-service restaurants are expandingtheir menus. Business & Money, D1

PAYING AT THE PUMP

Bad for businessExperts say higher gasoline pricesare affecting service providers’bottom lines.

¸ BUSINESS, D1

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A12 | THE NEWS-PRESS, NATION & WORLD, SUNDAY, APRIL 13, 2008 ***

Lawyers, artists the world over are captivated by caseBY MARY WOZNIAKmwozniak@news-press.com

The outcome of a lawsuit filedby artist Robert Rauschenbergcould send shudders throughartists working on canvas orbehind the shutter.

Art experts, attorneys and lawprofessors are watching to seewhether new law will emergefrom the case.

Rauschenberg alleges Naplesartist Robert Fontaine took workfrom his trash and sold it fraudu-lently under Rauschenberg’s name.

The work is not authentic andshould be returned anddestroyed, Rauschenberg says.

The case is groundbreakingbecause there is no legal prece-dent.

At stake is the ability of artiststo define what is their authenticor inauthentic work, and whetheran artist maintains creative own-ership of work he consideredunfinished or unusable.

Fontaine’s attorney, Yale T.Freeman, said if the work was inthe trash, laws of abandonmentapply.

“We say once abandoned,once discarded, that’s it. Theartist gives up any claim to that,”Freeman said.

Lawrence H. Kolin, Rauschen-berg’s attorney, called Freeman’stheory “absurd.”

The case is far from indis-putable.

The law of abandonment

would apply if the item were acouch, said Donn Zaretsky, aNew York City attorney whospecializes in copyright andentertainment cases. He alsoaddresses these issues online onhis Web site, The Art Law Blog.

But Rauschenberg filed hisfederal lawsuit under the VisualArtist Rights Act, Zaretsky said.The law provides limited copy-right protection for an artist’swork.

“VARA has to do with intel-lectual rights, not just rights on aphysical object,” Zaretsky said ofthe act.

Marc J. Randazza, an attorneyin Altamonte Springs, is fascinat-ed by the case. He has addressedthe issue in his Internet blog,The Legal Satyricon, whichfocuses on entertainment andsports law, as well as otherissues.

The act protects the author’screativity but only to a certainpoint, Randazza said.

“The Europeans have a differ-ent theory that you protect copy-right because it is the moralimperative of the artist to controlhow the works are used,” he said.

The artist’s rights act lacksthat emphasis, Randazza said.

Randazza plans to have stu-dents study the case nextsemester at Barry University inOrlando.

“For a law professor whoteaches intellectual property law,this is like a unicorn,” he said.

Attracting attention

The case also has drawn theattention of publications acrossthe country and abroad, includingthe venerable ARTnews, a maga-zine that began publication morethan a century ago.

“Lawsuits involving the fraudu-lent sale of artists’ work are rare,”said Milton Esterow, ARTnewseditor and publisher.

He mentioned a 1982 casebrought in New York against artdealer Stephen Mazoh, whoallegedly lifted two rain-soakedworks from the garbage of artistFrank Stella and then exhibitedthem in his gallery.

The case was settled out ofcourt and the work was returnedand destroyed. But that was beforethe artist’s rights act existed.

Then there’s Josh Sapan, CEOof Rainbow Media Holdings, LLC,a cable media company in NewYork City. Sapan put together acollection of art dumped on citystreets, at flea markets and evenart school trash.

The work is displayed on hisWeb site discardedart.com.

“Sapan has not been accusedof any wrongdoing,” Esterowsaid.

Even Der Spiegel, a Germanweekly magazine with a circula-tion of 1 million, has weighed inon the lawsuits.

In faxing a letter to Freemanrequesting an interview withRauschenberg and the defen-

dants, magazine Senior EditorRolf Hoppe wrote: “I found it ofinterest, because it has interest-ing aspects to the questions:‘What makes art art? What isactually art?’”

The broader issue is whatbelongs to Rauschenberg,Zaretsky said.

If the courts rule in favor ofFontaine, it would be a blow toartists’ rights, he said. The workfound in the trash is not complet-ed work, he said.

“This is not artwork — justdrafts and thoughts, and theyshould not be in any way exhibit-ed as artwork,” Zaretsky said.

But Fontaine may be able touse and sell the images, with orwithout Rauschenberg’s per-mission, said John Henry Mer-ryman, law professor at Stan-ford University.

“If we were in France, theanswer would be no,” said Mer-ryman, who is considered a lawtextbook pioneer. “In the UnitedStates I don’t know what wouldprevent it.”

The concept of moral rightsoriginated in France, he said.Moral rights are inalienable andgive artists complete controlover their work, includingwhether the artist allows workhe considers unfinished or unus-able to be exhibited.

Rauschenberg should havethat right, Merryman said.

“But VARA doesn’t cover thatright like Europe does,” he said.

Glimpseof worksrevealsstill-life

BY MARY WOZNIAKmwozniak@news-press.com

The nature of the works takenfrom artist Robert Rauschen-berg’s trash has caused muchconfusion and speculation.

What exactly are they?Fontaine’s two rolls of images

contained 60 sheets, each 36 by54 inches, of what look like X-rays, translucent when held upto the light.

When placed against a whitebackground, the images showup as giant photographs of still-life scenes.

If two of Fontaine’s co-work-ers took even a single roll ofimages, and the rolls containedthe same amount of work con-fiscated by Fontaine, there couldbe at least 60 more pieces ofRauschenberg work unaccount-ed for.

The News-Press viewed twoof the pieces of work inFontaine’s possession.

One is a shot of assorted potsarranged on blue and patternedtablecloths.

The other looks like a nega-tive of a photo of a table withkitschy souvenirs of Rome forsale.

The souvenirs include maga-zines and small replicas offamous statues, such as the Pietaby Michelangelo. In the corneris a display of arm patches, witha World War II Iwo Jima patchon one and and the stars andbars of the U.S. Confederacy onthe other.

About 10 of the piecesFontaine took have the initials“RR” on them, but that is not aRauschenberg signature, saidartist Darryl Pottorf, Rauschen-berg’s close friend and neighbor.

The initials are artists’ short-hand for the word “Rewrite”meaning the piece has to bereworked, he said.

Rauschenberg’s recent workincludes the use of original pho-tographs that are scanned into acomputer, then printed in a sol-uble medium made with veg-etable dye and transferred to thesurface of the artwork.

The images are transferredusing hand pressure andwater.

It’s possible the images fromthe trash could have been usedin this process.

Two rolls of images,containing 60 sheets

Fontaine, an art student at thetime, said he showed his find totwo co-workers at a now-defunctCaptiva Island restaurant wherehe was working. Both took off toget their piece of the cache,Fontaine said.

The man and womanreturned with more rolls ofRauschenberg’s work, Fontainesaid. He doesn’t know how many.He also declined to provide theirnames.

There were numerous otherrolls of images sticking up inRauschenberg’s trash, Fontainesaid. Anyone passing by couldhave helped themselves.

“God only knows how manyislanderswereoutthatday,”hesaid.

“That’s all true, but no one isout trying to sell it except him,”said Lawrence H. Kolin,Rauschenberg’s attorney.

And artist Darryl Pottorf,Rauschenberg’s friend andneighbor, said there’s no tellingwhose discarded materialFontaine really picked up.

Rauschenberg is generouswith letting other artists use hislarge-format printer, so thepieces could easily be anotherartist’s work, Pottorf said. Theprinter can reproduce images ofup to 5 feet by 8 feet.

Pottorf called the work “left-over stuff” and also said simi-lar work was taken from histrash outside his own studio

just down the street — hedoesn’t know by whom.

DetailsWhen Rauschenberg became

aware last year some pieces ofFontaine’s find were in circula-tion, he filed a federal lawsuitunder the Visual Artists RightsAct. The lawsuit claimedFontaine violated Rauschen-berg’s rights as an artist andsold some of the pieces, com-plete with bogus certificates ofauthenticity.

The HW Gallery of Naplesalso is named in a state lawsuitseeking facts on whetherFontaine and the gallery sold,helped sell or offered to sell theworks to unsuspecting buyers.

Rauschenberg filed the law-suits to protect the integrity ofart and protect the collector,who deserves to know what heor she is paying for, Pottorfsaid.

“When something happenslike this, he has to take action.”

Fontaine said he didn’t knowat first what kind of artwork hehad pulled from Rauschen-berg’s trash but knew it had tobelong to the artist.

“I was curious as an art stu-dent. I saw them as materialsworth looking at,” he said. “Iwould have been stupid not tohave looked at them.”

Fontaine told the story offinding the work to friends andcolleagues over the past 10years. About half of what hefound was given away, he said.

Fontaine admits selling threeof the works in 2007, nine yearsafter he found them. He said aperson knowledgeable in art,whom he declined to name,gave him the idea.

Fontaine said the first piecewas sold through Space 39Gallery in downtown FortMyers, and the other two weresold through the HW Gallery inNaples.

Terry Tincher, owner ofSpace 39, denied Fontaine soldthe work through his gallery.

“That’s absolutely not true,”Tincher said. “I think when hewas at Space 39 he sold one tosomeone in Fort Myers forcash. I didn’t know that untilafter the fact.”

The HW Gallery sold twoworks that were brought to thegallery by Fontaine, said Dami-an C. Taylor, the gallery’s attor-ney. “They were works that Mr.Fontaine said he had acquiredor found among items that werediscarded at the Rauschenbergstudio,” Taylor said.

Fontaine claims not to knowhow much the first work soldfor. The second and third soldfor at least $2,000 each, saidYale T. Freeman, Fontaine’sattorney.

Rauschenberg’s federal law-suit contends Rauschenberg hassuffered damages to his imagewhich, in turn, jeopardizes theeconomic value of his legitimateworks.

Rauschenberg’s authenticat-ed work regularly sells for hun-dreds of thousands of dollars to

more than $1 million.

DisagreementFontaine said he spent his

childhood on Sanibel and Capti-va islands and said he played withpet dogs in Rauschenberg’s back-yard when growing up.

“He’s a pretty interesting guyand definitely someone I’velooked up to my entire life,Fontaine said. “There is no moreiconic artist than Rauschenberg.”

Fontaine said news reportshave painted him unfairly as a vil-lain in the case and he meant noharm to the artist by taking workfrom the trash. “I never meantmalice in using or selling them,”he said.

But did he sell them withbogus certificates of authenticity?

That contention is probablythe significant dispute in the case,Freeman said. There is a certifi-cate that went with each of thepieces sold from the HW Gallery,he said. “There is a dispute as tohow they were created and whatthey were meant to say.”

The certificates were inten-tionally worded in a way meantto skirt the law, and Fontaine istrading on Rauschenberg’s name,Kolin said.

Pottorf, meanwhile, saidRauschenberg has been stung byFreeman’s depictions of the law-suit as a David vs. Goliath case —a world-famous artist picking ona local artist.

“He does not attack artists. Hetries to help them,” Pottorf said.Among numerous charitable

pursuits, Rauschenberg startedand directs a foundation calledChange Inc., he said. The non-profit organization providesemergency funds for artists.

Rauschenberg also givesgrants to artists to study andcontinue their work, Pottorfsaid. One of those grants, for$500, went to Fontaine as an artstudent.

Freeman wants what he callsa creative solution to the case.He wants to arrive at languageagreeable to Rauschenberg andFontaine that will allowFontaine to continue selling thework — perhaps as “Rauschen-berg’s Trash by Fontaine,” Free-man said.

Fontaine also wants to keepusing pieces of the materials increating his own works. “Hav-ing found them in the sameway Rauschenberg finds hismaterials, I’m hoping to havethe privilege to use them asfound objects, discardedobjects,” he said.

Rauschenberg’s initial break-through as an artist came by cre-ating what he called “combines,”assemblages that included dis-carded objects he found on thestreet and in the trash.

Kolin doesn’t look kindly toFreeman’s “creative solution.”

“Why would he be allowed toprofit from something pilferedthat was meant to bedestroyed?” Kolin asked.Fontaine is already violating therights of the author “by trying tomake a buck in an illegitimatefashion,” he said.

¸ Continued from A1

ART

The Visual Artists Rights Actwas enacted by Congress in1990. The act covers paintings,drawings, prints, sculpturesand photos produced for exhi-bition, and only if they are pro-duced as a single work, or inlimited runs of 200 or fewercopies.

The artist has these rights:¸ To claim authorship of thatwork.¸ To prevent the use of his orher name as the author of anywork of visual art which he orshe did not create.¸ To prevent the use of his orher name as the author of thework of visual art in the eventof distortion, mutilation orother modification of the workwhich wold hurt his honor orreputation.¸ The intentional distortion,damage or modification of thework is also a violation of thatright.¸ To prevent the destructionof a work of recognizedstature.

SOURCE: THE LEGAL SATYRI-

CON, A BLOG BY ATTORNEY

AND LAW PROFESSOR MARC J.

RANDAZZA OF ALTAMONTE

SPRINGS

VISUAL ARTISTSRIGHTS ACT

There are numerous casesover the past few decades ofartists allegedly taking imagescreated by others and usingthem in their own works. Theyinclude contemporary masterslike Robert Rauschenberg, AndyWarhol, Joan Miro and JeffKoons.

They are copyright, or “fairuse,” cases that involve theproduction of work, not themoral rights an artist has to hiswork and his creative process.

¸ In 2005, a Richard Princephotograph of a Marlboro ciga-rettes advertisement was auc-tioned for a world record ofmore than $1.2 million. He pho-tographed the Marlboro adwithout permission, removingthe identifying marks. Theoriginal photographer of theimage did not sue. Prince callshis practice of re-photograph-ing the work of others and pub-lishing it as his own, “practicingwithout a license.”

SOURCE: DONN ZARETSKY, THEART-

LAWBLOG.BLOGSPOT.COM/

¸ Robert Rauschenberg wassued by photographer MortonBeebe in the 1970s when Beebesaw his photograph of a diverused as part of Rauschenberg’swork, “Pull.” Rauschenberg set-tled out of court by giving acopy of the print to Beebe.

SOURCE: WWW.MORTONBEEBE.COM

¸ Andy Warhol was sued byphotographer Patricia Caulfieldin 1964 after he plastered thewalls of a New York gallerywith silk-screened reproduc-tions of a Caulfield photograph.While Warhol was author of thesilk screens, his settlement outof court included a royalty forfuture use of the image.

SOURCE: WWW.WIKIPEDIA.ORG

OTHER CASES

JOHN DAVID EMMETT/THE NEWS-PRESS

¸ Letters purported to be written by artist Robert Rauschenberg on works taken from trash in front of his Captiva home. Fellow artist Darryl Pottorf says the let-ters are shorthand for the word “rewrite.”

“Why would he be allowed to profit from something pilfered that was meant to be destroyed?”¸ Lawrence H. Kolin, Rauschenberg’s attorney