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,
Disputes over Quality (Not an issue unless defense)
Disputed Ownership (Whose art?: Art loss, property,
contract, cultural claims)
Disputed Authorship (forgery. Appropriation,
Disputed Authenticity (Forgery, Fraud, etc)
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
2. Or is it a transgressive
activity: risk to self and
others, the licensing of
The defense: “but it’s
between these claims.
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
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.
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
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
of the Tate Modern's
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
In those contradictions of massive numbers
and individuality, of humility and grandeur,
happiness and pain, Sunflower Seeds is like
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
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
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
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
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
72 objects including a feather, pen, book,
saw, honey, band-aid, salt, rose, gun,
bullet, paint, whip, coat and scissors
“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."
Participants in the art world undertake
risks, opt out of some rules and consent
Art involves in part “games, governed by
detailed rules and rewarding those who
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
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
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
IRON – slow conductor of energy and
represents the ‘male’ psyche and
BATTERY – storage of energy
ROCK/CRYSTAL/BASALT – the vast scale
EARTH/SOIL – people and their birth
PLANTS/TREES – life; growing into the
FLASHLIGHT – spiritual guidance
SLEDS – horizontality, death
SPIRALS – Celtic symbol of organic
energy; growth pattern
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
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
through which material
substance becomes the
immaterial is the alchemy
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
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
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
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-
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”
A roofless sculptural
constructed out of
stacked cow dung
Owned by Anupam
Poddar of the Devi
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
“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
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
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
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
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.