Scattered Work

Intellectual Property and Conceptual Art

Julian Sanchez took a stab at describing the complex relationship between conceptual art and intellectual property recently on Ars Technica. I think he hits the major issues pretty well, and does a good job describing how they relate to work by Sol LeWitt, John Cage, Terry Riley, and even Glenn Gould (the story of Jeff Koons’ String of Puppies might have been an interesting one to add to the mix).

One of the keys here is understanding that much of the time, intellectual property in the art world is enforced the old-fashioned way: through the arcane systems of distribution and attribution created by the art world itself, independent of the legal system. Part of what protects Sol LeWitt’s work is the fact that the instructions are only part of the “machine that creates the art” — there are also certain installers who know the “correct” way to interpret the instructions. Another part of the equation is the idea of authenticity that separates a “real” LeWitt or a “real” Warhol from the fakes. No self-respecting art institution or collector wants to own or display a fake work of art — even if it is indistinguishable from the real one. Thus, as these artists worked to remove personal identity from the equation, several strategies were devised enforce the notion of authorship in their work — certificates of ownership, authentication boards, etc.

Even while LeWitt was issuing legal certificates of ownership, he insisted that “anyone with a pencil, a hand, and clear verbal directions” could create legitimate versions of his pieces. In this sense, he could be seen as a forerunner of the free culture movement and Creative Commons. Crucially, however, his approach was to make the idea (that is, the non-copyrightable aspect of the work) the essential aspect; whereas, Creative Commons created a set of licenses that intentionally strip away various restrictions enacted by copyright law.

We should keep in mind, however, that LeWitt’s concerns seem to center around the integrity of the artwork, more than ideals of freedom or a gift economy. He later declared that this openness to unrestrained reproduction could corrupt his work, back-pedaling on his earlier idealism. This tension between freedom of use and integrity of work is essential to any understanding of intellectual property; as we refine our laws, and license our work, we should aim to strike a balance, rather than push an ideology.

[Cross-posted at Kunst-Blog]

Tags: authenticity, authorship, conceptual art, copyright, Jeff Koons, John Cage, Sol LeWitt

3 Comments to Intellectual Property and Conceptual Art

1. This seems somehow related to the efforts (resurgent off and on) of artists to try and collect royalties anytime their work changes owners: To demand an on-going revenue stream from earlier work for themselves or heirs. Or of artwork “dislocated” during times of war to be reclaimed by previous owners or their descendants. The legal ownership of Lewitt’s work should be of little interest to anyone not attempting to enforce a purchased copyright.

   What about copies of the Sistine Chapel murals in Italian restaurants or copies of Diego Rivera paintings in Mexican restaurants? Or, prints and posters of popular works whose proceeds go to public museums; shouldn’t the community at large have the right to create reproductions of those same works that are technically in the “public domain”? Unless there is a deliberate attempt to secure monetary gain from implying a reproduction is a genuine article, why is this an issue?

   Finally, it’s unclear that comparing Lewitt’s wall drawings with works of music is a meaningful activity. From a legal perspective, the use of one musician’s composition by another is perfectly acceptable. Many musicians enjoy successful careers without ever creating their own compositions. So, what is the justification for an artist, no matter how talented, to build a career on the use of geometric forms and concepts and then claim any kind of unique ownership?
chris k on December 3rd, 2008

2. Unless there is a deliberate attempt to secure monetary gain from implying a reproduction is a genuine article, why is this an issue?

   I guess the point here is that it’s not clear what we would mean by “genuine article” in the case of LeWitt. If the “idea is a machine that makes the art,” and ideas cannot be owned (or, conversely, are owned by all who understand them), then what is more genuine about a LeWitt at Dia Beacon, as opposed to a LeWitt that I drew in my apartment? The notion of “conceptual art” actually undermines the idea that any particular implementation is the real thing.

   Finally, it’s unclear that comparing Lewitt’s wall drawings with works of music is a meaningful activity. From a legal perspective, the use of one musician’s composition by another is perfectly acceptable.

   The comparison arises because LeWitt’s instructions are like a musical score — the work exists in an abstract form that calls for realization. As you point out, it doesn’t function legally like a piece of music. There is no licensing system whereby an artist can pay royalties to the estate of Sol LeWitt and produce a new, sanctioned version of the piece. But it’s worth asking the question: why not? And I think the answer to that question tells us a lot about intellectual property and the business models of the art and music communities (and by extension, the underlying values of those communities).
ben on December 4th, 2008

3. Maybe we’ve bumbled into it together. To your point, if I decide to recreate a favorite Lewitt on the wall of my living room, no harm done. If, on the other hand, I open a Lewitt-themed restaurant with wall drawings and a menu that looks like one of the line-with-text drawings, then I begin to take someone else’s work and use it for my own profit.

   “The comparison arises because LeWitt’s instructions are like a musical score — the work exists in an abstract form that calls for realization”

   Chicken and egg paradox: the chicken comes first because the egg is only a potentiality. From the egg could come a chicken, or an alligator or an omlette. When Glen Campbell sings Greenday we can shrug and say, “Ugh, but okay.” However, if Jackson Pollock takes the instructions for the wall drawing of “Arcs, Circles & Grids and all their combinations” and executes it as an action painting, it’s unlikely anyone could make the Lewitt connection.

   “And I think the answer to that question tells us a lot about intellectual property and the business models of the art and music communities”

   To this I can only respond that the treatment of some of the most beautiful artists, particularly musicians (Jazz!) in this country, especially as it relates to compensation for their work, is a national disgrace. But I suppose you could say that about a lot of our fellow Americans.
chris k on December 4th, 2008

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