It’s been described as Wichita’s Statue of Liberty – said to embody the town’s image, aspirations and soul.
For decades, the city has rallied behind the Keeper of the Plains as part of our cultural identity.
It’s not uncommon to see T-shirts featuring the Keeper, or professional photographs of the Keeper for sale.
It’s likely that the Keeper of the Plains merchandise is actually breaking the law.
The 44-foot-tall weathering-steel sculpture has been a copyrighted work of art since it was dedicated in 1974, though few realize it, according to David Simmonds, stepson of Blackbear Bosin, the artist who designed the Keeper.
Simmonds has never filed a lawsuit, but recently he’s had to tell a local paint party company to stop painting Keepers during classes, and a local store to stop selling a “sleazy” Keeper T-shirt, he said.
“The Keeper is obviously iconically tied to Wichita and Sedgwick County,” Simmonds said. “It’s a copyrighted image.”
Someone who knowingly uses the image without a license is breaking the law, Simmonds said.
History of the Keeper
The idea for the Keeper of the Plains originally came while Bosin was hospitalized in 1968.
Bosin, who worked primarily as a painter, was approached by an official with Kansas Gas & Electric, who suggested he design a sculpture as a tribute to the area’s Native American history. The company owned the land at the confluence of the Little Arkansas and Arkansas rivers, so the official suggested the statue go there.
KG&E (now known as Westar) also owns a generating station on the east bank of the Little Arkansas River, near that confluence. In the ‘70s, power lines ran along the river downtown – and they still do.
“KG&E had the idea that, in their civil spirit, they would provide this wonderful thing for the community, which at the same time would ... take people’s attention away from their really ugly treatment plant,” Simmonds said. “It was great for publicity and also people wouldn’t be so likely to focus ... on that.”
From then on, the Keeper was “an off-and-on project,” according to Simmonds. The drawings were done, but the money wasn’t there.
By 1971, KG&E had run out of funding for the project – the rest of the money came from the Wichita City Commission, the State Bicentennial Commission and the Quivira Council of the Boy Scouts of America, which sold 10,000 Commemorative Bicentennial medals featuring the Keeper design.
The Keeper was dedicated on May 18, 1974.
Bosin took no money for the sculpture, donating it as a gift “to the City of Wichita and all its people,” he was quoted as saying during the dedication. By this time, KG&E had deeded the land at the confluence of the rivers to the city.
Bosin died in 1980, six years after the Keeper’s dedication.
For the first 31 years of the sculpture’s life, it sat on ground level at the confluence of the two rivers. From that elevation, it was easy to see Bosin’s signature on a plaque afffixed to the Keeper’s feet, alongside a copyright symbol, Simmonds said.
In 2005, the city underwent a $20 million renovation of the area around the Keeper of the Plains, creating the large stone outcroppings and the pedestrian bridges leading to it.
There is no mention of a copyright on the current Keeper of the Plains Plaza.
The copyright symbol – if one still exists – is now well out of sight.
The Keeper and copyrighting public art
Bosin’s catalog of work shows a distinct change in his paintings starting around 1970.
Before, all of his paintings were simply signed “Blackbear Bosin.”
Then, around 1970 and thereafter, his signature would typically appear next to a copyright symbol.
A local patent attorney, the late John Widdowson, advised Bosin to add the symbol to his works to protect them, Simmonds said.
According to U.S. copyright law, all works of art are inherently copyrighted from the moment of their completion, but formally registering a specific piece with the United States Copyright Office provides official documentation.
“If it’s registered, it’s just that much easier to establish that it’s yours, because sometimes challenges come up ... and then they have to go through the process to establish it is their property,” said Pat Dooley, a communication law professor at Wichita State University. “It would be one less shred of evidence they would have to come up with to prove they actually own it.”
The official copyright for the Keeper of the Plains, which is registered with the U.S. Copyright Office as “PLAINS INDIAN. In native dress, looking upward. Statue. (G055329), December 6, 1974,” protects against others profiting from the design, which clearly has mass appeal in Wichita.
“All art is copyright-protected, and that’s a blessing because a lot of artists are not businessmen,” Simmonds said.
The debate about what constitutes copyright infringement when it comes to public art is somewhat of a gray area; however, just because it is in the public sphere does not mean it’s in the public domain.
Technically, if you take a photograph or create a likeness of a copyrighted work – such as the Keeper – with intent to sell, you are infringing upon copyright law.
Copyright issues with the Keeper are nothing new – in 1982, a fundraiser for the then-financially strapped Mid-America All-Indian Center was put on hold because the museum planned to sell limited-edition prints of a painting featuring the Keeper without asking permission. An attorney for Bosin’s widow advised the museum to stop the fundraiser because the prints were infringing upon the statue’s copyright.
Internationally, the debate about public art and copyright law most recently came to a head in Sweden in 2014, when Wikimedia Sweden was sued for posting photos of public art on its website.
The Supreme Court of Sweden was sympathetic to the Visual Arts Copyright Society in Sweden, which claimed the website violated artists’ copyrights by not asking permission to post the photos.
A similar case played out in Chicago in 2005, when a lawyer for artists Anish Kapoor and Christo & Jean-Claude sent a cease-and-desist letter to a sports photojournalist who attempted to sell pictures of their “Gates” public art project.
The letter read in part: “You may not ... sell the photographs in a non ‘fair-use’ manner, or commercially exploit the work of art without the express written permission of (the artist), nor may you claim a ‘copyright’ in photographs of this protected work.”
There are exceptions to the copyright law: the fair use doctrine allows for limited use of copyrighted materials for commentary, criticism, scholarship, journalism or parody.
So you’re likely never going to be sued for taking a selfie in front of the Keeper.
“An individual who takes a picture of (a work) to have a record of it in his home would not be a condemned use,” New York intellectual property lawyer John Koegel said in a 2005 article in Sculpture magazine. “Making a poster to sell is less favored.”
‘Drawers full of letters’
For Simmonds, maintaining Bosin’s copyright on the Keeper of the Plains has become quite a busy job – he now has “drawers full of letters of agreement” for it, he said.
Typically he charges no more than 5 percent of profits made, he said.
That’s not a cash-grabbing effort by Simmonds – most royalty checks, if they’re ever properly paid, are for double-digit sums, he said.
It’s about preserving the legacy of Bosin, he said, and trying to ensure any reproductions of the Keeper are done “in the right spirit.”
“It’s real important to me that the integrity of the Keeper be preserved,” he said. “There are so many folks who have taken photographs of the Keeper and so many of them think they have such a wonderful version that they want to sell it.
“Well, technically you can’t do that without being licensed.”
Typically, one of the only conditions Simmonds requires is that he can see the artwork before it’s produced.
“The value of a copyright is that it gives some control,” Simmonds said. “It gives me the option of not allowing poor quality or poor taste.”
He usually never charges nonprofit charitable organizations to use the Keeper: for example, the local Quivira Council of the Boy Scouts of America has had the Keeper on its patches for decades.
He has agreements with organizations as varied as McConnell Air Force Base to Lockheed Martin to Botanica to Sedgwick County – which prominently features the Keeper on its official seal.
Three years ago, Simmonds collaborated with Together Wichita for its “Keepers on Parade” project, which placed 10-foot-tall fiberglass Keepers around town.
But he’s not going out and scouring Wichita for unauthorized Keepers, he said.
“I have all these amateur policemen who are out there making sure everything is above board,” he said with a laugh. “It all comes to me.”
He said he typically hears from the Mid-America All-Indian Center or from people who’ve signed license agreements with him, alerting him to potentially unauthorized Keepers.
“I do have some time I can give to this, and because of Blackbear, I will do it,” Simmonds said.
He paused for a moment.
“I think it’s important that I do it.”