Performance Art and The Law

The resurgence of performance-related artistic practices over the past decade raises complex aesthetic, legal and, at times, ethical questions regarding the protection, authorship and ownership of the ‘works’ generated through these artistic practices.
The relevance of these questions can be linked to the recent revival of interest in Performance Art from the 1960s and 70s and the growth in the market for artistic performances through their film, video and photographic documentation as distributed and sold in the form of unique or limited-edition artworks. It is now common to see such documentation for sale at galleries, art fairs and auctions, often for substantial prices.

This revival has also engendered reflection on whether it is possible to re-stage earlier performance and conceptual artworks, in the main originally intended to be ephemeral, and whether such works might be preserved in the form of choreographic instructions in the future. Marina Abramović has explored these questions through her solo performances in New York at the Guggenheim, and the Museum of Modern Art. In ‘Seven Easy Pieces’, 2005, Abramović re-enacted seven iconic performances by other artists (with the prior consent of the artists or their estates), including Joseph Beuys’s How to Explain Pictures to a Dead Hare, 1965. In The Artist is Present, 2010, Abramović instructed others to re-perform earlier pieces she had made in collaboration with her former partner, Ulay (Uwe Layspien), which included re-performing Imponderabilia, 1977, by recasting the performers as a naked male and female standing immobile in the frame of a gallery doorway through which spectators had to pass.
Of equal importance to this resurgence has been the development of performance-related practices, whose model lies in the artist creating and delegating ‘performative’ instructions to others to perform in the absence of the artist. This paradigm is reflected in the work of various artists including La Ribot (Maria Ribot) and is epitomised by Tino Sehgal’s so-called ‘constructed situations’ that require the enactment of his choreographic instructions and scripted speech by performers – or ‘interpreters’ – approved and trained by the artist. Seghal’s constructed situations are enacted in real time and in interaction with an audience inside a museum or a gallery, for instance during his solo exhibition at the Guggenheim, New York, in 2010. In contrast to ephemeral works of Performance Art, Sehgal’s works are exhibited, like other exhibits found in a gallery or a museum, during the entire opening times of the exhibition’s duration.
The dematerialisation of artwork articulated in performance-related art raises complex legal issues as to how artists/performers define the ‘work’, and in particular control its performance and documentation by others. It also raises complex questions concerning legal recognition of authorship of the performance work and legal protection against plagiarism. Finally, it raises questions as to who has legal rights to control the (re)-performance of the work after an artist/performer has transferred ownership of the rights in it – particularly after the artist’s death. Given these questions, it is unsurprising that artists increasingly look to lawyers for answers.
There are three key facets that in particular need to be considered: protection, ownership, and authorship. As will be seen, legal recognition of performance-related art practices is problematic. Performance-related art encompasses an array of open-ended artistic actions/practices which defy established legal categorisation and border on many disciplines and practices, including dance, film, theatre and installation. There is no coherent cultural definition of Performance Art. In effect, virtually any action performed by an artist or by others instructed by an artist can be termed an artistic performance. The lack of materiality inherent in the open-ended and process-based approach of performance-related art (Artlaw AM346) is problematic because the law, particularly intellectual property law, recognises creative works through traditional categories, and techniques and forms that are rigid and largely alien to contemporary performance-related practices; it requires creative works to be fixed in a material form. However, there are two main areas of law that offer some recognition and potential protection for performance-related works: contract and intellectual property.

Protection by Contract
Contracts particularly suit works that are created and disseminated as instructions for performance. As when physical objects are sold and loaned, contracts – preferably written – can ensure that the artist’s instructions and conditions for performing the work are respected and adhered to, and that only those contractually authorised to perform the work may do so.
Sehgal, for example, trusts in the use of oral contracts to ensure that his specific performance requirements are followed. When he sells a limited-edition ‘constructed situation’, it is on condition that ownership is tied to a specific exhibition and that each time the work is re-performed in public one of his assistants attends and administers its performance – thereby contractually restricting the use owners may make of the work.
A contract can also become the site for defining what the work is, as well as documenting the conditions of performance negotiated and agreed with the work’s owner. Positions, 2011, by the Israeli artists’ group Public Movement, is the performance in ‘public’ space of a political choreography: members of an audience respond to pairs of political, cultural and social positions read to them out loud by members of Public Movement or its authorised ‘operators’; the audience aligns itself spatially and physically with the consecutive positions read to them. Public Movement used a written contract to define the rules for performance of the work and to transfer the exclusive right to perform it in the Netherlands to the Van Abbemuseum, Eindhoven. In effect, the artists transferred the exclusive performance right to the museum, which became the artists’ agent authorised not only to enact the work according to specified rules, but also to update and change the work’s content to reflect future contexts of its performance.
Yet the limits of contracts are also evident: a contract only binds the parties to it and cannot prevent non-parties from recording or recreating a performance without the artist’s authorisation. In many cases this leaves artists who wish to control the recording and reproduction of their work without a remedy. This is a particular problem for artists such as Sehgal who strongly object to the recording of their works in any form. It may be possible for a gallery or a museum exhibiting a performed work to prevent (contractually, on behalf of an artist) the unauthorised recording of it; but it is unlikely that many organisations would be prepared to do so, and questionable how effective this would be in practice.
For La Ribot’s series of performance works ‘Distinguished Pieces’, ongoing since 1993, she invented and uses an interesting contractual device with the ‘purchasers’ of her works (which are sold verbally). Such purchasers do not acquire the contractual right to perform or exhibit the piece they pay for, but rather a publicity right to be credited as a Distinguished Proprietor in perpetuity as part of the piece when it is performed or documented. In this way, the purchaser enters into an on-going epistolary relationship with La Ribot, who regularly writes letters to her Distinguished Proprietors informing them where ‘their’ particular work is currently being performed and about the development of the series.
Beyond the narrow scope of contract law, which confines any legal rights to the parties to the deal, copyright and performers’ rights are the main intellectual property laws by which works of performance might be protected against unauthorised use by others. These rights operate throughout most of the world, because of international intellectual property rights conventions and treaties whereby countries offer equal protection to foreign nationals as they do to their own citizens under their own laws.

Protection by Performers’ Rights
For performers of works (who might not be, but usually are, also the creators/authors) international intellectual property laws automatically give them ‘performers rights’: to authorise the live recording of their performance (the non-property rights) and to make and distribute, and rent and loan, copies of authorised recordings (the property rights). These rights generally last for 50 years from the date the recording of the performance was first released. It is normal practice for professional performers in conventional art forms (music, dance, film, theatre) to give prior authorisation of live recordings of their performances through written contracts with would-be producers. In this way, they negotiate and agree not only the nature and content of the recording itself and their performance fee, but also their 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 do likewise.

Protection by Copyright
Copyright law automatically gives creators/authors of performance works (who might not be, but usually are – at least in classic Performance Art – also the performers) the right to prevent re-enactment by others of the whole or a substantial part of their original work, and to prevent its recording, distribution, public performance and public communication. Copyright in a work lasts for the lifetime of the author plus 70 years after death in the EU and US (50 years after death in most other countries).
International laws offer authors of creative works copyright protection by categorising them into traditional or conventionally recognised art forms, including: music, literature, film, dramatic works and ‘artistic works’ (visual art objects and images, but not performance-related works). There is no general ‘catch-all’ category of, say, ‘any art form/practice that an artist says is art’; and so performance-related works are usually embraced, if possible, within the ‘dramatic works’ category. In UK copyright law, for example, a ‘dramatic work’ is not defined but is said to include a work of dance or mime ‘capable of being performed’. While this definition is potentially broad, it may not be wide enough to encompass extemporary performance-related works –because they have not previously been scripted or choreographically notated (like a movie script or screenplay). However, if the whole of an extemporary performance is recorded on film or video, it may comply with a further copyright law requirement: that the whole of a ‘dramatic work’ must be fixed or ‘recorded’, in writing or otherwise.
The so-called ‘fixation’ requirement may be satisfied by artists creating performance-related artworks that are recorded in detailed choreographic instructions, particularly (but not necessarily) works involving dance – artists such as Martha Graham or Laurie Anderson are notable examples. It is unlikely that a succession of still photographs of a performance would be sufficient to fulfil the requirement for fixation/recording of the whole work, nor would films and videos of incomplete recordings of a performance, or ones that are technically manipulated (say, by jump-cutting). However, one court recently decided that still photographs could fulfil the fixation/recording requirement for copyright in a performance work: in 2010 the Higher Regional Court in Düsseldorf, Germany, upheld a lawsuit by the Beuys Estate claiming that the whole of a Beuys extemporary half-hour performance (broadcast live on German television in 1964, but not taped) was fixed/recorded by 19 still photographs Beuys had allowed a colleague to shoot, and which are the only surviving record of the event (Artlaw AM342).
Finally, it is important to understand that copyright only protects the original elements embodied in a work: the detailed expressions, not the ideas behind or conveyed by them. Consider Abramović’s performance at MoMA New York of The Artist is Present, 2010: the artist sat at a table in the museum and audience members were invited to sit down individually at the table and gaze at her, while she gazed back at that person; there were no time limits (apart from museum opening hours) defining how long audience members could be seated, and Abramović performed this work every day for the course of the exhibition. Assuming Abramović’s whole work is protected by copyright law, it is unlikely that it would be infringed unless the whole performance was repeated by another performer in exactly the same way – in other words, there is no copyright in the idea of engaging with an audience in a museum in this way, only in the entire and precise forms expressed in the performance.

Protection of Authorship
A central issue for performance-related artists is recognition of authorship of the performance; often this can be more important than exploitation of any economic intellectual property rights in the performance. If an artist’s ‘originality’ of authorship is not consensually recognised within the art world through a combination of relevant discourses, institutions and the art market, then it becomes difficult for that artist to sell and re-perform their work as their own – particularly if another artist is thought to have created that work first. In a sense the art system functions genealogically through precedents (though these are not strictly obeyed), prizing artistic novelty and uniqueness while marginalising artistic practices which are seen to be repetitive and derivative. For performance artists, plagiarism and lack of authorial recognition presents particular difficulties: a whole history of performance can and often does remain invisible because it is unrecorded, or recorded through incomplete documentation and anecdotal recollection.
Most legal systems give creative artists in general rights to claim authorship of their works when publicly exposed or communicated. French law originally developed this attribution of authorship right – the droit de paternité – as one of several so-called droits moraux: moral rights. However, these internationally recognised moral rights usually apply only to authors of the traditional or conventional art forms classified by copyright law – see above. In other words, performance-related works will usually be recognised by international copyright laws – and therefore be given attribution of authorship rights – only if the whole performance is fixed in a material form (as discussed above, under Protection by Copyright).
Authors of performance-related works which do not qualify for international copyright protection and attribution of authorship rights may nevertheless be protected under other laws: they vary from country to country and therefore do not constitute a harmonious internationally enforceable legal rights framework. In the UK, for example, authors of performance-related works may consider using the laws of ‘passing off’ or ‘malicious falsehood’ to prevent others publicly performing their original works without prior permission. To succeed in such legal claims, original artists would be required to establish first, that they were indeed the original author/performer of a specific work; second, that the alleged plagiarist or re-performer of that work publicly claimed authorship and thereby falsely and deliberately denied attribution of the true authorship.

Envoi
Law-makers perennially experience delays in responding to inevitable changes in society, including especially the development of new art forms and practices. The dematerialisation of artworks, so manifest in the unique range of contemporary Performance Art practices, presents especially difficult challenges, and on an increasingly international scale, not for only artists seeking sound legal and business frameworks supporting the creation, performance, dissemination, communication and recognition of their works but also for would-be collectors/purchasers, curators and other facilitators and producers of such performances, and for art lawyers advising and helping artists turn their ideas into reality.
As for law-makers and courts – constitutionally responsible for meeting society’s changing needs – the complex artistic, legal and business requirements of performance artists draw legislators and judges away from their traditional legal recognition of material manifestations of art objects and their images and into legal consideration of alien territories of conceptualism and ephemerality. Such challenges need not be illusory or insurmountable. For example, the World Intellectual Property Organisation achieved remarkable success in persuading around 90 countries to implement its Performances and Phonogram Treaty of 1996 (WPPT), which came close to giving attribution of authorship rights to performance-related artists, but stopped short of doing so. The WPPT gives ‘actors, singers, musicians, dancers, and other persons who act, sing, declaim, play in, interpret, or otherwise perform literary or artistic works’ moral rights of paternity and integrity in their live (private and public) performances. Unfortunately, the Treaty only applies to live aural performances and sound recordings. Diplomatic pressure from a body of significant WPPT implementers – such as the US, EU and China – could stimulate a Treaty amendment that embraced live visual and audiovisual performances and recordings in the future.

© Henry Lydiate and Daniel McClean 2011 (Daniel McClean is a curator and a lawyer specialising in art and intellectual property law at Finer Stephens Innocent LLP).

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.

 

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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.