Prof. Vik Kanwar

What is art?

What is art for?

Is this art?

Is this good art?

Who made this?

Who owns this?

Who gets to do what with this?

How does the law make art what it is?

What must the artist know about the law?

What benefits or liabilities accompmany art a protected sphere or activity?

What risks does art pose to society?

All of these examples show the social system within which valuations of are made. It is not just what we call “the art world” and it is not just the intervention of the law or politics.

Market actors, social actors, and even legal actors add their voices to the making of meaning and value. It is not just art critics or artists themselves.

Critical descriptions of art become a part of filing police complaints, filing civil lawsuits, defending against these, and in setting public policy.

Disputes over Status as Art (Categorization, Protection, Liabilities)

Disputes over Quality (Not an issue unless defense)

Disputed Ownership (Whose art?: Art loss, property, contract, cultural claims)

Disputed Authorship (forgery. Appropriation, collaboration)

Disputed Authenticity (Forgery, Fraud, etc)

Disputes Valuation/Appraisal

Disputes over Rights (Moral rights, right to destroy)

Disputes over Risks Posed by Art (Defamation, Health, Security, Offense, Exploitation)

Creation of Art through Legal Instruments

1. Is art a protected sphere or activity, a sacred, rarefied, or higher calling?

2. Or is it a transgressive activity: risk to self and others, the licensing of bad behavior? The defense: “but it’s art…” mediates between these claims.

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Despite Post-modernism, mechanical reproduction, cynicism, culture wars,

and everything else possible, a belief in “aura” persists.

Its aura, per Walter Benjamin: A magical, irrational way of viewing a physical

object

The impulse to own art (privately or nationally) is a testament to its power

Those who most vociferously defend art and those who most violently

oppose it seem to accord it a status that most people might not share. They

agree it has a kind of power, which is worth upending or defending.

A synthesis of the “risen” and the “fallen” notions of art is provided by Julian Stallabrass:

“Contemporary art seems to exist in a zone of freedom, set apart from the mundane and functional character of everyday life, and from its rules and conventions. In that zone there flourishes a strange mix of carnival novelty, barbaric transgression of morals, and offences against many systems of belief, alongside quieter contemplation and intellectual play.”

Is this zone of freedom a new form of “aura”?

Even transgressive artworks

require rules. There are

boundaries that must be

constructed: usually to

mediate risk with consent.

The “working” of art is in the

shadow of the law.

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Tino Sehgal 2012 (2012)

Tacita Dean: FILM (2012)

Ai Weiwei: Sunflower Seeds (2010 – 2011)

Miroslaw Balka: How It Is (2009 – 2010)

Dominique Gonzalez-Foerster: TH.2058 (2008 – 2009)

Doris Salcedo: Shibboleth (9 October 2007 –2008)

Carsten Höller: Test site (10 October 2006 –2007)

Rachel Whiteread: EMBANKMENT (11 October 2005 – 1 May 2006)

Bruce Nauman: Raw Materials (12 October 2004 – 2 May 2005)

Olafur Eliasson: The Weather Project (2003 -2004)

Anish Kapoor: Marsyas ( 2002 –2003)

Juan Muñoz: Double Bind (2001 –2002)

Louise Bourgeois: I Do, I Undo, I Redo (12 May – 26 November 2000)

As many as 15 visitors were injured in the first few weeks of the opening of an installation which features a large crack in the floor.

The figure was cited by the Times newspaper, which said some visitors had sustained minor injuries.

Physical protection measures had been rejected because they were "not deemed appropriate" due to the "artistic nature" of

the installation.

A spokeswoman for the museum said there were currently no plans to fence off the 167-metre long crack.

The tiny works of art, each hand-painted in porcelain and different from all the others, are collectively called Sunflower Seeds, which is what they have been made to look like.

For all their maximalism, the seeds, seen collectively, are also minimalist: square-edged, in line with the taupe-and-steel brutalism of the Tate Modern's architecture.

Sunflower Seeds is both almost pervertedly grand – 150 tons of handcrafted ceramics, covering 1,000 square metres of Tate Modern's floor to a depth of 10cm – and

irreducibly simple.

In those contradictions of massive numbers and individuality, of humility and grandeur, happiness and pain, Sunflower Seeds is like China itself.

It took the 1,600 bemused porcelain workers of the city of Jingdezhen two years to make. To do what Ai has done – to hijack the entire economy of a town, to bend the one-time makers of imperial porcelain to his conceptual will – is to behave like an

emperor, or like Mao Zedong. As ever in Ai's work, the artist is centre stage, running vast risks – political, of course, but also moral, risks of image and identity.

Dust raised by the feet of visitors on the first two days led to its being closed to walkers.

Sunflower Seeds is no longer the social

thing it was meant to be.

“I count myself lucky to have made the short Long March across it before public access was modified. As you set off, Ai's seeds shifted beneath your feet; as you looked at them, so did their meaning. They were graves and life, despair and hope. And they are still those things, and still wonderful, among the best installations I have seen.”

It is in is the nature of public artworks: that you cannot know how they are going to work until the public uses them.

Marina Abramovic's work is typical of the ritualistic strain in 1960s performance art, avoiding traditional, object-based art materials (such as paint and canvas), and to cut down the distance between the artist and the audience by making her own body the medium. This often involves putting herself in grave danger and performing lengthy, harmful routines that result in her being cut or burnt, or enduring some privation.

It is ordeal art, performance art, conceptual, time-based and immaterial art.

Citation: http://www.theartstory.org/artist-abramovic-

marina.htm#sthash.Rz2qU00W.dpuf

Abramovic's first forays into performance focused primarily on sound installations, but she increasingly incorporated her body - often harming it in the process. In Rhythm 10, she used a series of 20 knives to quickly stab at the spaces between her outstretched fingers. Every time she pierced her skin, she selected another knife from those carefully laid out in front of her. Halfway through, she began playing a recording of the first half of the hour-long performance, using the rhythmic beat of the knives striking the floor, and her hand, to repeat the same movements, cutting herself at the same time.

20 knives, tape recorder, body

Citation: http://www.theartstory.org/artist-abramovic-marina.htm#sthash.Rz2qU00W.dpuf

Abramovic invited spectators to use any of 72 objects on her body in any way they desired, completely giving up control. Rhythm 0 was exemplary of Abramovic's belief that confronting physical pain and

exhaustion was important in making a person completely present and aware of his or her self.

In Rhythm 0, the audience divided itself into those who sought to harm Abramovic (holding the loaded gun to her head)

and those to tried to protect her (wiping away her tears). Ultimately, after she stood motionless for six hours, the protective audience members insisted the performance be stopped, seeing that others were becoming increasingly violent.

72 objects including a feather, pen, book, saw, honey, band-aid, salt, rose, gun, bullet, paint, whip, coat and scissors

Citation: http://www.theartstory.org

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“On the sale of his work, Sehgal stipulates that there is no written set of instructions, no written receipt, no catalogue and no pictures. The conversation that constitutes a Tino Sehgal sale consists of his talking to the buyer (usually a representative from a museum) before a notary and witnesses about five legal stipulations of the purchase: that the work be installed only by someone whom Seh-gal himself has authorized via training and prior collaboration; that the people enacting the piece be paid an agreed-upon minimum; that the work be shown over a minimum period of six weeks (in order to avoid seeming more like a theatrical event than an art exhibition); that the piece not be photographed; and that if the buyer resells the work, he does so with this same oral contract. This means that his work is not documented in any way. As of 2010, the "constructed situations" sold in editions of four to six (with Sehgal retaining an additional “artist’s proof”) at prices between $85,000 and $145,000 apiece."

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Participants in the art world undertake

risks, opt out of some rules and consent

to others.

Art involves in part “games, governed by

detailed rules and rewarding those who

play along.”*

There are rules, but are they legal rules?

*NYT on Tinto Sehgal

The classification of "art" is, of course, the

subject of contention and a topic on

which many would agree that courts have

no business pronouncing.

But in many areas of law, courts encounter

such works and must decide whether they

are art.

The fat on the “Fat Chair” is not geometric, as in the “Fat Corners” but keeps something of its chaotic character. The ends of the wedges read like a cross section cut through the nature of fat. I placed it on the chair to emphasize this, since here the chair represents a kind of human anatomy, the area of digestive and excretive warmth processes, sexual organs and interesting chemical change, relating psychologically to will power.

Materials

FAT – nourishment and fuel, a material basic to life and not associated with art

FELT – insulation, preservation of warmth and energy

COPPER – fast conductor of energy and represents the ‘female’ side of us all

IRON – slow conductor of energy and represents the ‘male’ psyche and stability

BATTERY – storage of energy

Nature

ROCK/CRYSTAL/BASALT – the vast scale of time

EARTH/SOIL – people and their birth place

PLANTS/TREES – life; growing into the future

Things

FLASHLIGHT – spiritual guidance SLEDS – horizontality, death SPIRALS – Celtic symbol of organic

energy; growth pattern Animals

HARE – mobility, burrowing underground, the earth

BEES – social structure, produce energy-giving wax and honey

ANIMALS (generally) – intuitive powers

Critic Mark C. Taylor: “It’s all about the fat: the way it looks, smells, feels—the way it oozes and seeps, jiggles and ripples, molds and melts—the way it is stored and burnt. During an era in which art was becoming ever more abstract and, thus, increasingly thin, Beuys made art fat. Real fat. Fat is one of the most unlikely materials with which to make art. Traditionally associated with excess and waste, fat is supposed to be slimmed, trimmed, and eliminated; it is unseemly, inelegant, and ugly. There is something gross, even grotesque about fat. Far from aesthetically appealing, fat is undeniably abject. Yet fat is vital to life: while too much fat can be fatal, bodies live by metabolizing fat to create the energy necessary for bodily functions. The transformational process through which material substance becomes the immaterial is the alchemy of life.”

What if an art collector wants to depreciate her Joseph Beuys' Fat Chair(1963) because the now 50-year-old Irish butter, of which it is entirely comprised, is decaying, a legal question arises under tax law of whether this investment is "art" and therefore non-depreciable?

Simon v. Commissioner, 68 F.3d 41 (1995), was a decision by the Second Circuit of the United States Court of Appeals relating to the deductibility of expensive items or tools that may increase in value as a collectible but decrease in value if used in the course of a business or trade.(This was a case concerning expensive, collectible violin bows that were used by the owners)

In 1927, Romanian sculptor Constantin Brancusi was charged the normal (non-art) customs tax when he brought Bird In Flight into the United States.

Bird in Flight is Brancusi’s famous elemental sculpture composed of nothing more than a beautifully formed piece of bronze. Customs saw a hunk of metal and Brancusi was taxed accordingly. Brancusi appealed the tax and won a refund from the US Government.

Imagine an art gallery were to import Walter de Maria's 1979 installation entitled The Broken Kilometer, which consists of 500 highly polished, round, solid brass rods, each measuring two meters in length and five centimeters in diameter, which together weigh 18.75 tons,

A legal question arises under the customs law of whether a duty is owed or whether the rods are duty free as "art."

Viola works in video and sound

installation, the components of which,

when switched off and viewed out of

context, appear to be standard audio-

visual equipment.

Flavin is famous for his fluorescent

sculptural light work, which

possesses what the European

Commission has classified “the

chracteristics of lighting

fittings…and is therefore to be

classified…as wall lighting fittings”

Subodh Gupta, “My Mother and Me” (1997):

A roofless sculptural installation constructed out of stacked cow dung patties.

Owned by Anupam Poddar of the Devi Art Foundation

What if Sherrie Levine wants to assert a copyright in her 1981 After Walker Evans, which was simply reshot from Evans' famous Works Progress Administration (WPA) photograph, a legal question arises about the sufficiency of originality under copyright law.

Although a court need not technically determine whether the photograph qualifies as art, the determination of originality directly relates to the court's understanding of the photograph's artistic properties.

In 1981, Levine photographed reproductions of Depression-era photographs by Walker Evans, such as this famous portrait of Allie Mae Burroughs, the wife of an Alabama sharecropper. The series, entitled “After Walker Evans”

Sherry Levine's After Walker Evans (1981) is a photograph of a Walker Evans photograph.

As appropriation art:

She is challenging the concept of ownership: if she photographed the photograph, whose photograph was it, really?

And she is addressing the predominance of male artists in the textbook version of art history.

“A landmark of postmodernism, both praised and attacked as a feminist hijacking of patriarchal authority, a critique of the commodification of art, and an elegy on the death of modernism.”

“Far from a high-concept cheap shot, Levine's works from this series tell the story of our perpetually dashed hopes to create meaning, the inability to recapture the past, and our own lost illusions.”

A synthesis of the “risen” and the “fallen” notions of art is provided by Julian Stallabrass:

“Contemporary art seems to exist in a zone of freedom, set

apart from the mundane and functional character of everyday life, and from its rules and conventions. In that zone there flourishes a strange mix of carnival novelty, barbaric transgression of morals, and offences against many systems of belief, alongside quieter contemplation and intellectual play

The “aura” and authority of art persists even as it questions the bases for these.

The procedures of art have begun to foreground risk and consent.

Legal rules do not always underwrite the “rules” by which particular artists operate.

Art law is a process of risk management.

• TOPIC THREE: Censorship Law And Theory I: The Artist’s Right to Free Expression: Defining or Challenging Art as a “Protected Sphere”

Leading case: National Endowment for the Arts v. Finley 524 U.S. 569, 118 S. Ct. 2168, 141L.Ed. 2d 500 (1998)

• TOPIC FOUR: Censorship Law And Theory II: Limit Issues in Obscenity, Child Pornography, Hate Speech, Community Sentiments, Feminist Critique

•

1) Compare and contrast the (nude) exotic dance regulations scrutinized under the US First Amendment, and the rationales provided by the Bombay HC and more recently the Supreme Court of India for lifting a ban on (clothed) Bar Dancing.

2) Compare and contrast the US case concerning the right to burn the US flag to the Indian case on the right to fly the Indian flag.

3) Further, the Indian Penal Code contains two laws limiting free expression 2. -Section 295A punishes those who "outrage [the] religious feelings of any class" by spoken, written or visual means, with a fine or a prison term of up to three years. 3. -Section 505(2) promises a similar punishment to those who make "statements creating or promoting enmity, hatred or ill-will between classes" on grounds of religion, caste, language or race....

1. Gay artist attacked 05-01-2012. New Delhi An artist, Balbir Krishan was

attacked at Delhi's Lalit Kala Akademy during an exhibition of his art.

2. Delhi photo exhibit portraying gay life forced to close 29-03-2012.

New Delhi: The police forced closure of an exhibition of eminent photographer

Sunil Gupta at Alliance Francaise acting on an anonymous complaint that its

content was obscene.

3. Remove Gujarat video art from show: India tells Beijing gallery 25-07-2012

Beijing, China/New Delhi. The Ministry of External Affairs (MEA) officials requested

organisers of a Beijing art show to remove a four-minute video installation that

featured interviews, discussing the communal riots in Gujarat in 2002. The video

had “random interviews” with Indian youth, had some “politically controversial

overtones,” the MEA told mediapersons. The installation was removed.

4. PIL filed to ban Effigy burning. 18-11-2012 Kochi, Kerala Burning effigies is a

fundamental right of a citizen as part of the freedom of speech, the state

government has informed the Kerala high court. The government is against a

ban on burning effigies but will seek reasonable restrictions.