Questions of Attribution

Richard Hamilton took part in a discussion, 'The Legacy of Duchamp', at Tate Britain in early May 2003.

This pointed up many interesting reflections on contemporary visual practice, including the tracing of direct links between the works of different artists. Speaking about his relationship with Marcel Duchamp, Hamilton said that he had made an early conscious decision not to emulate Duchamp's work in his own. In other words, in order to be true to Duchamp's core values and ways of thinking about art, it was important for Hamilton to move away from anti-retinal work - just as Duchamp's pursuit of originality had provoked his own move away from the retinal concerns of his day. This was a refreshing insight into Hamilton's oeuvre, and his pursuit of originality.

In the same week an article appeared in the Guardian (May 6, 'Can You Own An Idea?') addressing a dispute over the alleged relationship between a work created by Carey Young for the 2003 Beck's Futures Prize show at London's Institute of Contemporary Art and an earlier work by Anna Livia Lowendahl-Atomic. Regular readers will recall that Lowendahl-Atomic's work, A Selection of Interesting Secrets in My Life, was discussed in this column in December 2000 (AM242) because of the way in which it uses the law as a medium for creative practice. The work comprises a selection of 60 secrets that are for sale; they are listed and numbered in a catalogue with a price and brief description. For example: '32. A fine but somewhat seedy specimen that has stood the test of time. Occasional slight wear but otherwise in an attractive state of preservation. 1986. London. £450.' The catalogue also contains terms and conditions of sale, and a Confidentiality Agreement that buyers are required to sign - promising not to disclose the secret to anyone else; this document is also proof that the artwork/secret has been bought.

Young's work is also conceptual, and similarly places at its heart the use and fusion of the laws of confidentiality and of contract;indeed, that fusion is the rationale of any non-disclosure/confidentiality agreement. The public manifestation of this work is the actual legal document, framed and hung in the gallery, in which it is stated: 'The Artist has created a certain New Work of Art as a commission by the Corporate Sponsor. Title: Assisted Press Release. Date: 2003. Materials: Press Release for Beck's Futures, red ink. Description: Press release with truthful information added by the artist. Dimensions: 21 x 29.5cm.' This Agreement's terms and conditions also include arrangements for the sponsor's representative to have brief access to view the 'New Work of Art' (ie the 'Assisted Press Release') on a specific date, after which it would be sealed away and not further disclosed.

The use of a non-disclosure/confidentiality agreement is essential to the execution of both these works. In Lowendahl-Atomic's case, at the heart of her work is the confidential disclosure of a personal secret, for a fee, on condition that it is not further disclosed. In Young's case, the 'Assisted Press Release' is stated by the agreement to be the 'New Work of Art', disclosed in confidence to the sponsor on condition that it is not further disclosed. In both cases the physical public manifestation of the works is a legal document - the literary description of artwork/secrets in a sales catalogue including a non-disclosure/confidentiality agreement; and a signed non-disclosure /confidentiality agreement including a literary description of the 'New Work of Art'/Assisted Press Release. 'A striking similarity to my own work', is Lowendahl-Atomic's public claim, but Young has publicly asserted that she did not copy, nor had she seen it.

There are further similarities between the two works. Both are only accessible through the signing of a non-disclosure/confidentiality agreement. They are only exposed to the public via exhibition of that agreement. The only public evidence of the existence of each work is a document. Neither work is allowed to be further disclosed. Both give public descriptions and clues as to what is hidden. Both artists appear to be exploring the perennial questions of what art is, and where it resides. And both use the laws of confidentiality and of contract as integral media.

There are also differences. In Young's case, her exhibited non-disclosure agreement had been signed by the artist and the sponsor, whereas Lowendahl-Atomic's confidentiality agreement was exhibited as a precondition of her offer to sell secrets. Lowendahl-Atomic offers to sell secrets - via her 'Catalogue No.1' - implying that further catalogues will be published offering further secrets in future); whereas Young's 'New Work of Art' had been sold to the commissioner before the exhibition. Young's work was commissioned; Lowendahl-Atomic's was not.

Do such comparisons matter, from the art law perspective? Intellectual property laws - such as copyright, design right, moral rights, trademark, patents, and passing off - decidedly do not seek to give legal protection to original ideas. Rather, they seek to protect the original concrete manifestations of ideas via original forms of expression - such as paintings, graphic and photographic works, sculpture, architecture, and so on. In the cases of both these artists, their putative artworks are decidedly not manifest as visual works, and are therefore not candidates for such legal protection against appropriation.

Ironically, the law of confidentiality/privacy would also not appear to be relevant. This law is normally used to protect from exposure trade secrets, technical know-how, and other sensitive commercial information. Lowendahl-Atomic freely disclosed to the public the ideas and tools she used for her work, when she exhibited her first secrets catalogue in September 2000 (and this column gave it a wider audience in December that year).

These issues can be linked together through Hamilton. In the 60s, as a fine art lecturer at the University of Newcastle upon Tyne, Hamilton set for students an exercise to produce a work entitled 'Hommage à...'. This clearly reflects his own involvement at that time with his making of the authorised reproduction of Duchamp's The Bride Stripped, Bare By Her Bachelors, Even (The Large Glass), 1915-23 and 1936; and the extent to which his own practice, like that of many artists, uses the constructive and acknowledged stimulus of the work of others.

It is also interesting to note, in this regard, that the legal dispute between Glenn Brown and Anthony Roberts (discussed in this column inAM243) was recently settled out of court. It concerned the alleged copyright infringement by Brown of Roberts' earlier illustration work in his painting The Loves of Shepherds, 2000 - perhaps significantly now known as The Loves of Shepherds 2000 (After Anthony Roberts).

© Henry Lydiate 2003

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material.
The article is for information only, and not for the purpose of providing legal advice.
Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.