Janice A. Oser, Esq.

Laura Gilbert was down on Wall Street last month protesting the current economic crisis and what brought it on by passing out her “Zero Dollars.” The Zero Dollar is her rendering of a one-dollar bill, with a portrait of George Washington but with zeroes instead of ones, and slightly downsized. On October 7, 2008, Ms. Gilbert, an artist based in Manhattan, was in front of Federal Hall, where George Washington took his oath as the first President of the United States, handing out free signed and numbered prints showing both sides of the Zero Dollar on a single sheet.

Her Zero Dollars will continue to be distributed free at the Grady Alexis Gallery, on upper Broadway, during an exhibition of her works and for as long as the supply lasts. It should last a while, because Ms. Gilbert printed 10,000 of the Zero Dollars, in an attempt to ensure that they will have zero value, as would befit her project and her protest.

Mindful of the legal travails of other artists who have painted, drawn, or made prints representing or resembling U.S. or other currencies, Ms. Gilbert designed her Zero Dollars in a manner calculated to keep the Secret Service from her door. For example, this is why, she says, she made her renderings 74% of the size of an actual bill. The law permits color illustrations of currency if they are either less than three-fourths or more than one and a half times the size of the bill being illustrated (and one-sided).

The Secret Service, which is not so secret that it doesn’t have a Web site, is authorized by statute to investigate counterfeiting of U.S. currency, among other specified crimes, and lists on its Web site the requirements for legal color illustrations of U.S. currency.

Granted that counterfeiting might be considered an art of a sort, the work of artists such as Ms. Gilbert is pretty far from what most of us are likely to think of as counterfeiting. In addition, however, to sections of the U.S. criminal code that use terms conforming to the ordinary sense of the word–that is, making “false” or “forged, counterfeited, or altered” obligations (e.g., dollar bills)–there is also a section of the code that uses the word “similitude.” This has got to be a scary word for artists who make representations, or misrepresentations, of currency in their art.

Under Section 474 of Title 18 of the U.S. Code (“Crimes and Criminal Procedure”), unauthorized possession with intent to sell or otherwise use currency made “in whole or part after the similitude” of any currency issued under the authority of the United States is a felony.

This provision appears to have been on the minds of Secret Service agents who raided the home and studio of an artist who goes by the name of J.S.G. Boggs, probably the best-known contemporary artist focusing on money, and the subject of a book by Lawrence Weschler, Boggs: A Comedy of Values (The University of Chicago Press, Chicago and London, 1999).

Laura Gilbert, in a note about her artistic project in the New York Times (“Money for Nothing As Seen by an Artist,” by Wendy Fried, October 5, 2008), is quoted as asking, “Why should art be worth less just because it’s free?” Ms. Gilbert poses the question of the worth or value of art. J.S.G. Boggs, as described in Wechsler’s book, asks about the meaning of “worth” and “value.” A dollar, Boggs is quoted as saying, is “an act of faith”–nobody knows what holds the thing up. (This seemed particularly apt to Weschler at a time of great financial instability, and, alas, seems particularly apt today.)

To get a sense of what fired up the Secret Service about Boggs’ art, a brief description of it is in order, as described in Weschler’s fascinating, funny, and, with it all, somewhat sad, tale. Boggs’ art, like Ms. Gilbert’s act of handing out her Zero Dollars, partakes of the nature of performance art, because, for Boggs, the art is a series of transactions involving a drawing by him of the face of a paper bill.

In his book, Weschler gives the following example of an experiment Boggs has performed, with variations, at restaurants, hotels, airline ticket counters, hot dog stands, hardware stores, and countless other venues in the United States, England, Germany, France, Ireland, Belgium, Switzerland, and Italy. He will, the author writes, invite you to dinner at an expensive restaurant, and toward the end of the meal, he will take out from a satchel a drawing he has worked on for several hours beforehand, a virtually perfect rendering of the face of a one-hundred-dollar bill (expensive restaurant? this would be a while ago). Then he will take out a pair of precision pens, one with green ink and one with black, and apply the finishing touches to his drawing.

This causes a stir at the restaurant, and when the maître d’ drifts over and praises Boggs’ work, Boggs will say, “I’m glad you like the drawing because I intend to use it as payment for the meal.” The maître d’ blanches, but Boggs almost immediately pulls the model for his drawing, a real hundred-dollar bill, from his satchel, and offers the maître d’ a choice–the regular bill or Boggs’ work of art in payment. In either case, the change must be given in genuine currency, bills and coins. The regular bill is often chosen, but over a two-year period, Boggs’ drawing was accepted for payment, and genuine change given, on almost seven hundred occasions, in transactions totaling over $35,000 in value.

In art gallery shows, Boggs’ transactions are shown with the framed drawing of the money, "Boggs notes" or "Boggs bills,” in the center, surrounded by framed objects, including a receipt, the change (each bill received in change is signed and dated by Boggs, each coin scratched with Boggs’ initials), and perhaps something else relating to the transaction. Shirts purchased with a drawing have been exhibited, for example, or other objects relating to the purchase, such as ticket stubs, and the pieces fetch prices considerably higher than the “payment” made by Boggs.

How, one may wonder, was the drawing that is shown in a piece retrieved? Boggs has a waiting list of collectors ready to trace and buy the Boggs note when he informs them of the transaction 24 hours after it has taken place. (He will not sell a Boggs note directly.) He gives the recipient of the Boggs note some time to reflect on what has taken place, to ponder the meaning of money, and value and the drawing received. The collector, or the collector’s agent, will pay Boggs for the change he received and the receipt, and either track down the recipient of the Boggs note on the basis of the information on the receipt, or pay Boggs a further fee for more detailed information.

The Boggs notes, despite the artist’s virtuosity in draftsmanship, would not, one would think, be taken by any reasonable person as genuine. Even if they are not embellished, as they often are, with whimsical variations from the genuine original (e.g., J.S.G. Boggs as Treasurer of the U.S.), they are one-sided. Nevertheless, Boggs was arrested and tried in England for his renderings of the British 50-pound note.

Boggs was acquitted by a jury despite a judge’s instructions that made all too clear the judge’s opinion that Boggs had violated British law. A statute prohibited anyone from making a "reproduction" on any substance, whether or not in the correct scale, of any British currency, without permission from the Bank of England. Boggs had sought such permission, but it had been denied. Weschler’s account of the trial, in an historic courtroom of the Old Bailey where many famous British murderers had been tried, is the high point of the “Comedy” in the title of his book (although it was a tense time for Boggs). Subsequently, a judge in Australia threw out the case against Boggs on a similar charge.

The United States Secret Service, however, has been another story. Towards the end of 1992, Boggs had decided to push the edge with a project he was calling “Project Pittsburgh.” He had drawn a new edition of Boggs bills in denominations ranging from one through ten thousand, and laser-printed a million dollars’ "worth" of them. This time they were not one-sided, but had an elaborate design of filigree on the back around five empty circles. Boggs' idea was that the first person to accept one of these bills in payment would make a thumb print on the back of it in one of the circles and pass it on to the next person willing to accept it, until there was a thumb print in all five of the circles.

If the project succeeded Boggs would have created five million dollars in value. This might well provoke the interest of the Internal Revenue Service (Boggs is always ready “to cut the IRS its own fair share of Boggs notes”) and agitate the Secret Service considerably. A few days after the project was written up in a Pittsburgh alternative newspaper, Boggs found himself surrounded in his pickup truck by flashing lights and officers waving badges–two Pittsburgh police and four Secret Service agents, who were armed with search warrants.

The agents escorted Boggs to his apartment, which, in Boggs’ account, they trashed while searching for the “million dollars,” and confiscated what Boggs has described as seven years’ worth of work. The next stop was Boggs’ office, where a half dozen other agents were already on the scene. Boggs wouldn’t tell them where the “million dollars” in Boggs bills was, but he invited them all to a show at a gallery where the bills would be displayed.

Boggs wasn’t arrested at the time of the raid or at the show, and the strategy the U.S. Attorney and the Secret Service were following wasn’t clear. What was driving them crazy, Boggs theorized, wasn’t the alleged counterfeiting, but the way his bills were calling into question the very creditability of the country’s currency, which was “Nothing. Sheer faith.” The Secret Service did manage to stop his Pittsburgh Project by blanketing the city with warnings that anyone who passed or even accepted any of the Boggs bills could face dire consequences.

Subsequently, Weschler’s tale continues, Boggs obtained the services of a high-powered attorney, who was to be paid with Boggs bills, and filed a civil suit seeking a declaration that Boggs’ work was not in violation of any law. In the alternative, the judge was asked to order the government either to bring a criminal case against Boggs, in which case he could defend himself before a jury (apparently, something the Secret Service would prefer to avoid), or “cease its persecution of the artist and return his property forthwith.”

Trial and appeals courts have ruled against Boggs with respect to the declaration he seeks, and have stopped there, refusing to rule on his quest either to be tried or to be let off the hook, with his property returned. He made a down payment with his last Project Pittsburgh thousand-dollar bill for an engraving by the chief master engraver with the Bureau of Engraving and Printing in Washington, D.C. for a portrait of himself. The portrait was to be used on eight one-hundred-thousand-dollar Boggs bills with which to “pay” Boggs' considerable legal expenses.

That portrait graces the cover of Weschler’s book, in which the author writes about Boggs telling of his inability to drop his obsession with “worth” and “value” and Boggs notes. The author closes by summing up Boggs’ lawsuit as a “hilarious nightmare of a case in which both sides were in a position to cover and go on covering all their costs simply by printing money.”