Collecting Performance Art

A unique art fair exclusively showcasing performance art was held for 72 hours in September 2019 during the Brussels Gallery Weekend. Organised and curated by A Performance Affair (APA), a recently established not-for-profit-share entity, the event was called ‘re:production’. Performance works by over 30 artists, both emerging and established, were exposed over 2,000 square metres of space on two of five floors of the prestigious Vanderborght Building in the centre of Brussels.

The uniqueness of APA lies not only in its harvesting and curating of new and historical performance works in one venue, but also in its ground-breaking decision to do so as an art fair marketing works for acquisition by collectors. APA’s professed key purpose is decidedly not to be ‘another art fair, but [to be] a flexible stage geared towards stimulating the acquisition of performance art while finding solutions for its development and sustainability’.

APA’s ‘re:production’ event also included many open discussions of ‘key elements necessary to perform, transcribe, document, transfer ownership and restage a performance’. Key issues included what is collectable matter of a performance; how do the protocols, scenarios, recordings, or artefacts relate; how can video or other means of representation benefit the discipline; whether any residue (objects, video documentation, and so on) resulting from the performance forms part of a sale; whether an acquired work can be re-sold in the secondary market, or be inherited by heirs or be donated; whether a work dies when the artist-performer dies or whether the work can be re-staged post mortem.

For centuries private collectors and public-facing institutions have traditionally acquired material objects; and physical artwork has been and remains the sine qua non of the secondary art market. But the dematerialisation of contemporary art activity has increased significantly in recent times, and has produced a unique range of performance-related artistic practices. It is therefore of paramount importance for everyone involved in dealing with performance-related works to understand and accept that each work will ideally have its own unique internal characteristics and external manifestations, and will ideally require its own unique legal and business arrangements constructed and implemented for its acquisition.

Moreover, key challenges arise on an increasingly international scale for artists seeking legal and business frameworks to support their performance-related work: its creation, performance, dissemination, communication, recognition, acquisition and/or sale and resale. Similar challenges arise for collectors/purchasers, curators and facilitators/producers, art market traders, and professional advisers and consultants. A complicating factor for all concerned is that virtually any action performed by an artist or by others instructed by an artist can be termed an artistic performance – including creating and delegating ‘performative’ instructions to others to perform in the absence of the artist (such as Tino Sehgal’s ‘constructed situations’).

There are two key legal and business disciplines that can offer possible ways forward for performance artists and others dealing with performance-related work – if used creatively to serve and meet their needs: contract; intellectual property. Contracts of acquisition can suit works manifest as, say, instructions for performance to ensure that the artist’s instructions and conditions for a work’s performance are respected and adhered to, and that only those contractually authorised to perform the work may do so. Ideally such contracts work best when they are in a written agreement signed by all concerned parties. However, some artists rely on verbal agreements or so-called ‘handshakes’ to initially perform and agree – for a fee – to re-perform their work periodically (whilst alive and well enough to do so). Additional contractual terms and conditions of sale might include that ownership is transferred uniquely to that collector, meaning that the artist undertakes not to sell the work to other collectors; or is tied to a specific one-off exhibition.

Intellectual property laws are many and various, and for performance-related works two are especially important. Performer’s Rights are akin to copyright, and are automatically given by most countries to their citizen-performers. The aim of these laws is to protect performers of all kinds including performance artists against audio/visual recordings being made of their activities without their prior written permission. In many countries the unauthorised making of audio-visual recordings may be criminal offences punishable with fines/imprisonment. In other words, performers of works (who might not be, but usually are, also the creators/authors/artists) automatically acquire ‘performers rights’ via international IP laws to authorise live recording of their performance (so-called non-property rights); and to make and distribute, rent and loan, copies of such recordings (so-called property rights).

Performers’ rights generally last for at least 50 years from public release of the audio-visual recording. It is normal practice for professional performers in conventional art forms (music, dance, film, theatre) to give prior authorisation for live recordings of their performances through written contracts with would-be producers and/or merchandisers of a/v recordings. In this way performers and industry professionals negotiate and agree the nature and content of: the recording itself; any performer’s fee; the performer’s share of economic rewards (royalties) that may be earned by future commercial showings or broadcasts or other commercial communication of those recordings. Performance-related artists could and ideally should do likewise; but as APA has justifiably said ‘few artists are able to draw any sustainable revenues from this practice’.

Copyright laws operate to protect authors of works against unauthorised exploitation of their original work: most countries automatically give their citizen-creators/authors of performance works (who might not be, but usually are, also the performers) rights to prevent: unauthorised re-enactment by others of all or a substantial part of their work; and likewise unauthorised recording, distribution, public performance, and public communication. Such rights endure for the artist’s life plus at least 50 years post mortem (70 in EEA and USA). Given the often open-ended and challenging nature of performance-related art, art lawyers dealing with such work should ideally have a sound understanding of its nature and intent to enable them to make creative legal analysis of it. Then to determine how international copyright laws would classify performance-related work into one or more recognised legal cultural forms giving such forms copyright protection. In this way the whole of a performance may be copyright-protected via its constituent elements as music, literature, film, choreography, dramatic work, even still art and design.

Although many artists are against allowing any recording of their performances, it is often beneficial for the artist to arrange for audio/visual recording to be made under their own arrangements and control so that the whole work is copyright-recorded as a film, which is copyright-owned by the one person who is the artist/producer/director/performer. And increasingly collectors are interested in acquiring such recordings – especially if they in a unique or limited edition.

© Henry Lydiate 2019

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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.