The Creative Act 2007

In April 1957 at the American Federation of Arts in Houston, Texas, Marcel Duchamp gave his now celebrated and all too brief talk ‘The Creative Act’: ‘Let us consider two important factors, the two poles of the creation of art: the artist on the one hand, and on the other the spectator who later becomes the posterity.’

He goes on to clarify what he means by ‘art’, namely ‘the subjective mechanism which produces art in the raw state, a l’etat brut – bad, good or indifferent.’ And concludes by asserting: ‘All in all, the creative act is not performed by the artist alone; the spectator brings the work in contact with the external world by deciphering and interpreting its inner qualification and thus adds his contribution to the creative act. This becomes even more obvious when posterity gives a final verdict and sometimes rehabilitates forgotten artists.’

Fifty years after his talk and 40 years after his death, Duchamp’s influence has been massive. He removed the traditional boundaries of creative practice, inspired subsequent generations to work in far more varied modes than ever before, and stimulated many to assume greater and more direct responsibility for bringing their work to the spectator. In short, Duchamp can be seen as a transformational bridge between 19th-century bohemian romanticism and new working paradigms at the beginning of the 2ist Century. Let us consider some examples, and the professional practice challenges they bring.

Graffiti artist Banksy uses the built environment as his chosen medium, skilfully avoiding his being identified in public – and his arrest for possible acts of criminal damage to other people’s property. Today this urban guerrilla’s works fetch significant sums in the art market and, instead of potentially falling foul of the law, he often finds himself being lawfully commissioned to create new work. Banksy has become a brand. As has Damien Hirst, but he has developed a different way of working – adopted and adapted from the model of the Italian Renaissance studio. While Hirst conducts research and development, and makes controversial and experimental new works, his team of assistants are employed making and merchandising numerous versions of his earlier and more conventional paintings of, say, spots, spins and butterflies. Extensive media attention suggests that Hirst is acutely aware of his public image and its relationship to his brand.

For Alison Jackson’s lookalike moving and still images of celebrities in humorously quirky tableaux, she uses conventional mainstream broadcast media and publishing as art forms, though her aims and objectives are still determined by artistic parameters. She uses media to subvert and question notions of celebrity, and toys with the public’s notion that ‘I’ve seen it on TV and in print, so it must be true’, and describes her works as ‘explorations of the blurred boundaries between reality and the imaginary – the gap and confusion between the two. I recreate scenes of our greatest fears which we think are documentary but are fiction.’ In order to realise her works, Jackson skilfully – and deliberately – negotiates the potentially hazardous boundaries of the laws of defamation and confidentiality, and related celebrity rights; and also uses the type of business and financial skills more familiar to a film or television producer than an artist.

Christo and Jeanne-Claude’s Running Fence, 1978 (the construction of a fabric fence across 24 miles of California ranch land to the Pacific Ocean) required difficult and protracted negotiations with initially uncooperative landowners, county, state and federal authorities, environmentalists, conservationists and the California Coastal Commission. Christo described it as ‘an obstructive membrane’ intended to change the public’s perception of the land. And, just as it had taken Duchamp eight years from conception to realisation of The Bride Stripped Bare By Her Bachelors, Even, 1915-23, it took Christo and Jeanne-Claude a staggering 24 years to realise their Wrapped Reichstag, Berlin, 1971-1995 – time spent largely persuading the public authorities to give their necessary permissions and consents. Like Banksy, they also use the environment as their gallery, intervening with and changing it on monumental scales. Again, the artists go to the spectator, and they set themselves huge challenges – technical, legal, procedural, bureaucratic and financial. Each work is a discrete business project, funds for which are secured through complex and lengthy negotiations not unlike those a Hollywood film producer would normally employ. Moreover, the artists have developed merchandising techniques that variously include creating and selling related drawings, collages and works on paper, and, on occasion, they use their intellectual property and control of access rights to generate income – not unlike the merchandising with which we’ve become familiar at rock music events.

The culture of rock music was the subject of a group showing at the Bard Center For Curatorial Studies, New York, in 2004. Entitled Far Away So Close, it included works by lain Forsyth & Jane Pollard, Rodney Graham, Raymond Pettibon, Steven Shearer and Susanna Vapnek. The show’s curator, Tairone Bastien, explained: ‘These artists adopt do-it-yourself strategies from the culture of rock (tribute bands, mixed CDs, fan-art, posters, and zines) to examine the relationship between desire and alienation in a fan’s relationship to pop culture icons. The works in the exhibition touch on questions of nostalgia, melancholy, and representations of loss.’ Forsyth & Pollard are UK artists, who have been working in creative and business partnership since they met as students at Goldsmiths College in 1993, and they have consistently explored the territory of music culture in their films and live event recreations – such as those at the ICA in London: The Smiths is dead, 1997, A Rock ‘N’ Roll Suicide, 1998, The kids are alright, 1998. As with some of the artists mentioned earlier, Forsyth & Pollard set themselves enormous challenges of a technical, legal, business and financial nature not normally associated with art practice; as for their economic model, their practice does not normally involve the creation and merchandising of art objects.

These few but significant examples of new paradigms for creative practice represent increasingly diverse ways in which contemporary artists have begun to work in modem times, certainly since Duchamp’s death in 1968. They also begin to demonstrate the breadth of professional practice knowledge and skills that are needed to be able to realise such challenging projects. Those of us providing advice and support to creative practitioners have been required by them to address all manner of legal, business, financial and technical issues that hardly ever arose 30 or 40 years ago. Works made using media such as film, video, digital technology, light and sound stimulate and facilitate artists working collaboratively with other artists and/or curators or technical experts. This raises important business issues, such as the need for written creative partnership agreements, freelance or employment contracts, including especially clarification of who owns intellectual property rights in such joint ventures. Many such projects involve the taking of enormous financial and business risks, which often suggests the establishing of a registered company to manage and limit such liabilities. Recent discernible trends in contemporary artists’ thirst for new areas of knowledge to support their practice include: appropriation of copyright material from movies, TV programmes, videos, photographs, recorded music and literature; use of open source/content software; use of creative commons licences; and use of the web for self-promotion and marketing, and for downloading others’ material.

Sadly, higher education in the UK does not appear to have kept pace with such new ways of working, in the sense that art school curricula continue to offer professional practice studies (if at all) only as add-ons to the traditionally creative heart of the course, instead of embedding such studies holistically within the assessed curriculum.

© Henry Lydiate 2007



Still need help? Contact us

Similar Artlaw articles

Related articles / resources

Featured project

Unlocking the Collections

Artquest are partnering with the Museum of the Home who are funding a new research residency for an early career London-based artist. The artist selected for the Unlocking the Collections residency is… Continue Reading Unlocking the Collections

Read more


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.