In 1964 Joseph Beuys gave an improvised 30-minute performance broadcast live on Germany's second public television channel ZDF (Zweites Deutsches Fernsehen), which he called Marcel Duchamp's Silence Is Overrated.
The performance was not taped but Beuys allowed his associate and renowned art documenter Manfred Tischer (1925-2008) to photograph it. Tischer's 19 photographs are the only record of Beuys's unique live performance; they remained unpublished until 2008 when they were exhibited at the Museum Schloss Moyländer (located within Moyländ Castle, Bedburg-Hau, Germany) which holds the world's largest collection of Beuys's works. Last year that exhibition was abruptly curtailed by a temporary court order requiring the photographs to be taken down, pending a full trial of a legal claim that the images violated Beuys's intellectual property rights. The lawsuit was brought against the museum by VG Bild-Kunst, Germany's artists' copyright collecting society, acting on behalf of Eva Beuys who inherited her husband's copyrights on his death in 1986. The trial ended in September 2010 when the Higher Regional Court in Düsseldorf gave its final judgment confirming the claim and permanently ordering Tischer's images not to be exhibited by the museum.
In most countries, including the UK, original works of creative artists (of all kinds - composers, writers, film-makers, choreographers, visual artists and so on) qualify for copyright protection only if they are fixed in a material form (such as sound recordings, manuscripts, films or videos, and physically manifest visual artworks). Beuys's 1964 performance was improvised (and therefore had not been performed or fixed in a material form via film or tape before the live broadcast) and the only record of it is Tischer's 19 photographs. Nevertheless, the court appears to have ruled that Beuys's entire performance - though transient and unfixed - was an artwork entitled to copyright and moral rights protection, and that the exhibition of Tischer's 19 freeze-frame-like photographs was an unlawful adaptation of the entire work of performance art.
The court's decision has been hailed as a landmark because it made an unprecedented ruling - not only in Germany, but worldwide - that unrecorded/undocumented performance art is capable of being protected by copyright and moral rights laws. An authorised English translation of the judgment is not yet available, but media reports of the court's reasoning appears to include the following.
Circumstantial evidence in the form of an assessment by experts can prove the existence of an entire performance, from which the court could gain an overall impression and find that an intellectual creation of the artist was made. Improvised actions are protected by copyright when they reach the required threshold of originality. The essence of this art form would be frustrated if art activities were denied the status of art on the grounds that they were essentially based on improvisation. German copyright law allows new forms of art beyond the boundaries of traditional art forms to be protected, and such protection covers the work as a whole. It is not necessary for a work to be recorded permanently so that it is capable of being reproduced. The entire performance lasted at least 20 minutes; the 19 photographs are only snapshots of the work and, thereby, transform a dynamic art process into stasis. The museum exploited an adaptation of the entire performance, without permission of the legal successor to the creator, and was contrary to copyright law.
Since the development of machines and technology to record and reproduce sounds and moving images towards the end of the 19th century, intellectual property laws were introduced and developed throughout the 20th century to give intellectual property rights to public performers of music, drama, dance or literature: conventionally known as the performing arts. Such performers were given an array of legal rights: to prevent their performances being audio and/or visually recorded without their prior consent; to license the public performance of recordings to which they had consented; and to prevent distortion or changes to such authorised recordings. Similar rights were also given to the authors of such performed works: choreographers, film directors, composers and songwriters, writers and dramatists. In all such cases, intellectual property laws operated only in relation to a work or performance that was recorded in a fixed material form - manuscripts, tapes and CDs, film and DVDs, and so on.
Performance art emerged in the 1950s, and especially the 1960s and 1970s, via notable visual artists such as Vito Acconci, Yves Klein, Yoko Ono, Barbara T Smith, Carolee Schneemann, Marina Abramovic and, of course, Beuys. Artists were making essentially transient works, often though not always improvised, and infrequently scripted or recorded. In recent times, performance art events and projects have been scripted and/or recorded by the artist/performer/author, which not only helps to meet the ‘fixation' requirement of intellectual property rights laws but also enables such secondary ‘documents' to be sold by the artist in the art market place.
Abramovic, a leading contemporary performance artist, has recorded/documented her works since her first performances in the1970s and, following a recent agreement with her former collaborator Ulay, frequently sells such documents; they now appear in the secondary market and fetch significant prices: in May 2010 Sotheby's New York sold her Rhythm 5, 1974 (a gelatin silver print) for $25,000. Other notable artists whose records/documents of performance works have sold at auction include Allan Kaprow ($21,400 in 2004), Rebecca Horn ($118,354 in 2007), Ana Mendieta ($202,970 in 2008). Younger artists have in recent times developed their ideas of performance to include the participation of would-be collectors: Tino Sehgal's ‘constructed situations' involve one or more people carrying out the artist's instructions, given orally in the presence of a lawyer, and have sold for around $100,000. London's Financial Times recently reported Nancy Spector, deputy director of the Guggenheim Museum, commenting: ‘I think a younger generation might begin to copyright their performances. But I can't imagine artists from the 1970s, who were anti-market, retroactively copyrighting material. The work of Chris Burden (famous for being shot in the arm as part of the 1971 Shoot piece) lives on through his sculptural relics but he does not allow his works to be re-enacted. Vito Acconci, meanwhile, made videos and photo-text pieces. Each artist has a different set of guidelines.' The FT also quotes Carolee Schneemann: "none of the 1970s pioneers want their pieces re-performed except in exceptional cases", and reports a contrary view from Lisson Gallery's Nicholas Logsdail that ‘performances should be treated like musical scores, with indefinite interpretations. It's frowned on to go beyond the original performance. But this has to change or pieces of art history will be lost'. Museum Schloss Moyländer is one example of an increasing number of modern and contemporary art galleries exhibiting records/documents of ‘non-object based' artworks.
There are two opposing schools of thought about the philosophy of copyright law: that copyright's vessel is almost full and about to overflow with controlling rights for copyright owners; or that it still has room for many more new ones. It would be unfortunate if intellectual property laws were developed by legislatures or interpreted by courts in ways that denied the public's experience - albeit at a step removed from original performance art events - of artists' endeavours to expand the boundaries of what visual art is or could become.
© Henry Lydiate 2011
Addendum August 2013. In May 2013 Germany’s Federal Supreme Court reversed the September 2010 decision of the Higher Regional Court in Düsseldorf. In essence, the Supreme Court held that Museum Schloss Moyländer did not violate Beuys’s copyright and moral rights by exhibiting Manfred Tischer's 19 photographs as a freeze-frame record of Beuys’s 1964 performance. HL.