On March 5, 2005, in central London two separate events took place: each focused on artlaw and different ways of appropriating the law into the form and content of artists’ works.

The first was jointly organised by the Interdisciplinary Department of Arts Council England and Westminster University’s Centre for Arts Research Technology and Education (CARTE): ‘Ways of Working 2: appropriation and collaboration in contemporary arts practice’. This was a study day designed to explore artistic engagements with copyright and intellectual property, and was inspired by a growing recognition that artists in all media need access to information about the changing landscape of copyright and other intellectual property laws. It was a forum for artists, legal service providers, and peer-to-peer organisations to discuss what happens when contemporary arts practice intersects with the law, how this affects arts practice, and what lessons might be learnt.

Artist Carey Young used her video work Terms and Conditions to exemplify one of her chief current interests: disclaimers (of contractual liability for supplying goods and especially services). It shows a person (in the mode of a TV presenter) directly addressing a static camera, standing in a stereotypically English-looking rural landscape, using legalistic jargon to explain that (not why) she had no legal responsibility for the contents of the video and especially as to whether or not it was a work of art, nor for the value of the work, the viewer’s access to it (which might at any time be interrupted or prevented), the viewer’s reaction to it, and so on. Young used the intellectual property lawyer Massimo Sterpi to collaborate with her on the making of her ‘Disclaimer’ series and she has credited him as co-author (‘why shouldn’t lawyers be artists?’), and explained that her intention was to ‘throw the viewer off balance’ by completely undermining the validity of the content of the show. She views Conceptual Art as a challenge to the contemporary art marketplace: ‘how else can artists elude the marketplace today?’; and admits the influence on her thinking of the work of Joseph Beuys ‘and his concern for language as a sculptural form’. Legal disclaimers abound in contemporary society, the more so as most people purchase or access their needs and desires via the internet – where extensive and impenetrably legalistic written disclaimers are becoming the norm, and which most people do not read but tick the box to say they have done so. But when they are read carefully, they appear to be saying that the service provider is not responsible for anything: this resonates, for Young, with artists’ concerns with ‘negative space’.

Artist and filmmaker Manu Luksch, founder of the London-based company AmbientTV.NET, showed her current project Faceless, which is compiled from surveillance video footage recovered under the UK’s Data Protection Act. The film explores urban fantasy and subjectivity under the regime of closed circuit TV, and the ways we leave data-traces and can be tracked through the city. Under UK law, a person has the right to be supplied with surveillance camera footage of themselves – but not of other members of the public in the same footage (their faces have to be blacked out by the surveiller/supplier). The UK has the highest density in the world of surveillance cameras online, and this inspired Luksch to try to get hold of some footage, which then led to her interest in the legal rules obstructing her access to such material. She sent a photograph of herself to surveillance organisations asking for footage of herself, and for the eradication of the faces of other people. The supplied footage was edited, with added narrative text, to explore how the people other than Luksch had become faceless.

Artist and lawyer Sarah Andrew has for many years combined her two practices to advise on terrestrial and digital TV programme content. She showed examples of her work, which focuses on gaining access to forbidden fixed images and reusing them. A portrait painting by Pierre Mignard, Louise de Keroualle, Duchess of Portsmouth, 1682, inspired her appropriation of that image to create a photographic portrait of herself as Head of Compliance for BBC Commercial Television. The importance to her of using that old painting was that it is virtually impossible to access, without technical subterfuge. Having successfully done so, and used it to recreate her self-portrait, she then framed and exhibited it in the News Corridor at the BBC. Andrew conceived and executed a similar project by gaining access to, and appropriating to her own use, a propaganda poster from a neo-Stalinist Archive, Coca Cola Soldier, by Oscar Reijiander. The law is seen by Andrew as a ‘system of description’, and she believes that artists and lawyers should work together to empower artists to find new ways of working.

Ian ‘Cutswift’ Edgar is part of Eclectic Method, a group of visual and aural artists who are ‘part of the ever-approaching critical-mass bootleg and mash-up scene’. They take ‘sample culture to its illogical conclusion in clubs, while pushing visual boundaries in any other medium we can get our hands on’; copyright law is ‘just a nuisance to us’. He showed a dance video, editorially choreographed loops of fight scenes from the Quentin Tarantino film Kill Bill. It was made to show that ‘you can re-mix anything’. As a result of (somehow) seeing this creative appropriation, commercial organisations (such as MTV) now commission Eclectic Method to use their techniques and skills to make commercial videos and promotion films. Edgar sees this work as ‘technology led’, and ignores copyright and other commercial issues: ‘we just do the work and see what happens’.

Palle Dahlstedt is an internationally recognised composer of instrumental and electronic music who has collaborated with Peter McBurney, a computer scientist, to create new software with properties that cannot be predicted: music is generated by computer, not by the composer. Who is the author of the resulting music (an essential legal prerequisite to establish copyright ownership) and does it matter that there is no identifiable author (other than the computer)?

Art lawyers Daniel McLean and Simon Stokes led a debate around the artlaw issues involved and arising from the five presentations. Three key themes emerged: the law as an artistic subject (Andrew); the law as a creative tool (Young), and collaboration between artists and lawyers (Young and Luksch). Subsequent audience participation in the debate included the raising of issues such as: the extent to which the law, slow to change as ever, has no real understanding of contemporary artworks; how the law might define a work of art, and should it even be asked to do so; the dangerous territory that is entered (for art and artists) when lawyers attempt to define art; that law should be flexible and not prescriptive; the extent to which artists like working with, as well as against the current law; the extent to which art lawyers should be embraced by artists to help the law to be flexible and serve the interests of artists.

The second event, ‘Public Art: retraining the streets’, was a collaboration between London’s ICA and Hames Levack, a gallery without a fixed venue. It was a sort of ‘magical mystery tour’ whereby the audience met at the ICA, boarded a bus, received a packed lunch, and were driven around the city to visit art and artists in ‘London’s most interesting public spaces’. Brad Downey, New York City artist and co-director of the documentary film Public Discourse was tour guide. For example, the tour stopped off to visit Doug Fishbone, found lying on a leather reclining chair ‘parked’ in a car parking space in St Martin’s
Lane. At Zimbabwe House in the Strand, the bus stopped to see Jacob Epstein’s 1907/08 sculptural frieze which was curiously vandalised in the 30’s and has remained exposed to the public viewing of such derogatory treatment ever since; here Neal White described Epstein’s unsuccessful ’30 years war’ to have the sculptures reinstated. The tour ended back at the ICA to debate who public art is for and who should pay for it, question what should be done with ‘public monuments to our more politically incorrect past’, ask whether public art has become an outdated initiative ripe for being subverted in unofficial/illegal ways, and to discuss the control of public space in Britain.

Several inter-related artlaw issues emerged from the debate: the centuries-old cultural and legal principle of property ownership, and whether there is any longer such a thing as ‘public space’ in the UK; the law of contract and its enforceable regulation of commercial relationships between artists and commissioners; the value or otherwise of % for art schemes (requiring a small percentage of public money to be spent on new projects for public buildings and/or spaces); ethical and public interest issues exemplified by Neal White’s ‘third campaign’ to reinstate Epstein’s sculptures; and the law of statutory moral rights, since 1989 giving UK artists (and their estates for 70 years after death) the legal power to prevent or correct derogatory treatment of works they made but no longer own (Epstein died in 1959, and his estate could therefore exercise this power until December 31, 2029).

Rosemarie MacQueen, head of city development (planning and design) for Westminster City Council and a member of the Westminster public art advisory panel, explained that the city council has three key roles in relation to public art and architecture: as an occasional commissioner of new artwork; as the legal planning authority for giving permissions to construct permanent buildings or monuments, and temporary installations, and to implement and monitor the city council’s ‘% for art’ policy (requiring a small percent of construction project budgets to be spent on the involvement of art or artists). She explained that Epstein’s sculptures had been vandalised before the Secretary of State for Culture, Media and Sport had designated the building as ‘listed’ under the provisions of the Planning (Listed Buildings and Conservation Areas) Act 1990, on advice from English Heritage. ‘Listing’ ensures that the architectural and historic interest of the building is carefully considered before any alterations, either outside or inside, are agreed. This has led to the currently perverse situation: the building, together with its vandalised sculptures by Epstein, has been legally sanctioned. Westminster City Council has the responsibility to decide, initially, whether the building and its sculptures can be altered (renovated or removed). The statutory moral rights of Epstein’s estate were acquired on August 1, 1989 (on implementation of the UK’s copyright Designs and Patents Act 1988). However, although these rights require that the vandalised sculptures be renovated (or removed from public view), the rights were required subsequent to the ‘listing’ of the building. The city council might find persuasive an argument that the artist’s statutory moral rights (not to have his work treated in a derogatory way) are of greater public importance than the perverse ‘listing’ decision made previously.

A digital report of the ‘Ways of Working 2’ event will be published by ACE and CARTE. Hames Levack and the ICA are discussing plans for further public art events. There is an excellent discourse and case studies on public and private rights in cultural treasures in Joseph L Sax’s Playing Darts with a Rembrandt (University of Michigan Press, 2002).

© Henry Lydiate 2005

Carey Young responded to this article in the letters page following month’s Art Monthly magazine, as follows:

Henry Lydiate’s review of the art-law conference ‘Ways of Working 2: Appropriation and Collaboration in Contemporary Arts Practice’ (AM285) misquoted and confused various aspects of my work.

For the record, the video piece Terms and Conditions features a female presenter who welcomes the viewer into a lush agricultural landscape with a series of excerpts from corporate website disclaimers which offer us rules for the possible use of a ‘site’. Contrary to Lydiate’s review, this character does not ‘explain that she had no legal responsibility for the contents of the video and especially as to whether or not it was a work of art, the viewer’s access to it’, etc. In fact, most of these points were part of the three other works that I presented – a suite of text-based panels called the ‘Disclaimer series’. These three works (created with the lawyer Massimo Sterpi) use playful but legally-credible terms to renounce their ontological status as artworks and their relationship to the viewer, artist and any gallery or sales context.

Furthermore, Lydiate has also misquoted me on my views on Conceptual Art. Far from seeing Conceptual Art ‘as a challenge to the contemporary art marketplace: how else can artists elude the marketplace today?’ I actually stated that it remains somewhat tragic that many works by conceptual artists around the period 1966-72 were so easily assimilated by the art market when those works had typically been intended to avoid commodity status.

London N1

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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.