Amy Adler on artist’s rights, the impact of conceptual art on law and Texts from Hillary.
Amy Adler is the Emily Kempin Professor of Law at NYU School of Law. Her practice focuses on art, sexuality, and speech and explores the relationship between law and the construction of culture. At NYU, she teaches Art Law, First Amendment Law, Feminist Jurisprudence, and Gender Jurisprudence. She is also on the faculty of the Visual Culture department. When I first met Adler it was in a class of hers I sat in on at NYU Law. Into the Day-Glo fluorescence of classroom lights—at a time where most art world folk in New York are usually taking an Aspirin and mourning the err in judgment of attending whatever open-bar-gallery-crawl had taken place the night before—Adler strolled in fresh-faced and dazzling in a crisp Chanel suit and pearls. Along with her came a little boy—her own—who promptly seated himself at the front of the class. Not only did her son participate in class discussion (the kid just might have a future in art criticism), but Adler in the next forty minutes proceeded to create correlations between everything from reality TV, to feminist theory, to legal precedence. Nothing was safe. At the end of the session, with far too many questions of my own and too little time remaining, I knew I had to find a way to continue the conversation. It wasn’t until quite some time later that Adler and I found a few hours to lunch and discuss the laws of art, art law, authenticity, collective action, and the notion of provenance in a digital age.
Legacy Russell You have said before that the law “works by creating rules” and yet that “art is somehow bound-up in the transgression of those same rules.” Can you speak to this a bit? And talk about how it relates to the work you’ve done in a concrete sense?
Amy Adler I was just reading a passage today from Adorno where he writes: “Art revolts against its essential concepts while at the same time being inconceivable without them.” We are living in such an interesting moment in contemporary practice. I’ve been playing around with the question: What if art’s longstanding “revolt” against its essential concepts has been a bit too successful? Perhaps “art” as a category has become “inconceivable.” I wonder if we are teetering on that brink. Legal rules are premised on the assumption that art is a stable category, but what happens to law as that assumption becomes unsound? The instability of “art” as a category has implications across a wide swath of legal and cultural stuff. One place we can begin to talk about is in the area of moral rights, which is something that I’ve done a lot of work on and continue to do.
LR Hopping in here briefly—can you define what it means when you say moral rights?
AA Moral rights is a concept that originated in Europe but are now part of American law. It’s based on the premise that visual art is not like any other object; it’s got some special magical connection to its creator. For example, if you were going to buy a dress or a car or a chair – any kind of object in the world, you could do whatever you wanted to do with it. The object is yours to hack or throw out or fix up. But if you were to buy a work of art, even if the artist had sold it to you, it’s not really yours as these other objects would be. It’s yours and his—I use “his” advisably—it belongs to him in the sense that he still has control over your object. You don’t have the ability to change that work. This is the artist’s moral right. It’s based on the idea that the artwork is really the artist’s child; that he has “injected his spirit” (that’s a quote from a court) into the work, unlike people who create non-artistic objects. I’m fascinated by this concept and have written a piece called “Against Moral Rights,” critiquing this idea in light of what is happening in contemporary art where there has been so much questioning of the boundary of art itself. Law is reifying a boundary between art and other objects just when contemporary art has been questioning that boundary. The idea that an artist should perpetually control his work also seems problematic because so much contemporary art seems premised on the idea that art already exists to be remade, reworked, remixed by other people again, again and again, as if it were contemplating its own contingency, change and even possible destruction as part of the work. That’s just one example where we have a very old-fashioned legal concept of art that seems so dramatically incompatible with a great deal of contemporary practice.
LR Working with that concept of moral rights, are there recent examples of cases you’re interested in, or excited about?
AA With moral rights, a recent high profile case in 2010 involved the artist Christoph Büchel and Mass MoCA. Mass MoCA wanted certain things but they had never signed a contract.
LR This was the exhibition that [current Creative Time chief curator] Nato Thompson [then a curator at Mass MoCA] was involved in producing, documents from this case are online, and the case is filled with so many twists and turns, it reads like fiction, even though its real life, a great working example of the roles played by various people when working towards getting a project out into the public eye.
AA It was an installation piece about the war in Iraq and Büchel wanted to put in tons of stuff: A re-creation of Saddam’s spider hole and a burnt-out fuselage of an airplane and an old movie theater. It was a very ambitious show. But over the months that the show was being created and installed, the artist and the museum got into bitter disagreements about budgets and so on until they reached an impasse. I find it fascinating that a show about the Iraqi war became itself a quagmire. Ultimately, the museum said, “Look, we are going to display this as it is because we’ve invested all this time and money, and otherwise we are never going to have a work of art to show.” The museum sued Büchel for the right to show the work in its unfinished state and his response was: “No, it’s mine, this work belongs to me!” The parties ended up settling after a court found that the artist has the right to control his unfinished work, a special right that he would not have it he had created just a regular old, non-art object. There is this pervasive notion in law that there is sanctity to art. In my work, I continually ask the question, “Does art as a category, particularly contemporary art, merit this specialized treatment?” This question arises in numerous legal contexts, from disputes over moral rights, to free speech, to preservation, authenticity, appropriation and copyright.
LR With the records of this case out in public space, it’s fascinating to see how even the archival documentation and transcripts about such disagreements and the legal machinations therein can have a life that extends beyond the courtroom.
AA One really fascinating thing about that case is that after the ruling Büchel starts to make art about the case, he starts displaying documents from the case as artworks; he makes a talking doll that would recite lines from the decision, all kinds of great stuff. This brings up another interest of mine that is a pervasive theme of my work: We think about law as a prohibition, as a set of rules that stops artists from doing things. But I’m really interested in how the prohibition or the moment of censorship, in the old-fashioned sense, becomes a productive moment. Can we think about the moment of censorship as both a silencing and a beginning of the work of art, or as an incitement to create new art? Censorship not only chills speech but is also bound up in the creative process in a much more complex way than we have recognized.
LR You’ve done some work regarding child pornography and how the laws around it and representation have come into play when teenagers are taking pictures of themselves and sharing them with one another, demonstrating how the law has the capacity to sometimes work against itself, sometimes ensnaring the same individuals it was meant to protect. Portraiture and the notion of the self portrait, like the autorretrato, has such a history for artists, and such a place within the scope of art history and the lineage of makers therein. . . So it doesn’t surprise me that the use of self-documentation within the realm of social media and digital practice continues in this vein and that artists are toying with its conceptual limits. The posting and re-posting of images, the position and re-positioning, brings up again these questions of authorship, ownership, appropriation—it begs to question, Who owns what? Where do we draw the lines to make these types of distinctions, especially when it comes to the exchange of images and documentation of bodies that are not always our own? The use of social media is broadening a cultural understanding of what is pop and also what direction social sculpture may be going in the years to come, as the concept of social and common space is rapidly evolving and changing.
AA There are two strands here that are interesting. The first is the shift toward compulsive self-documentation that has come to characterize contemporary culture. It’s really a radical shift, where now we are all photographers all the time and we are all now photographers of ourselves, as if we were authoring ourselves in a new and fascinating way. I love looking at that shift across culture, not just in high art but in popular culture. The second strand that interests me is the idea of youth creativity in this fast-moving digital complex, where people are taking stuff and putting it out in the world. It goes back to my idea that art or objects exist not to be preserved but to keep moving, moving very fast in the stream of digital culture—
LR —and perhaps how this is a new measure for success within art-making, how quickly an image can be shared, can “move,” can be reappropriated.
AA And I’m really interested in following internet memes, and the idea of the meme. It has implications, for instance, for our notions of authorship. In law, our view of authorship seems very focused on this fantasy of the single, great genius who thought something up once, and we his public must then preserve his vision for eternity.
LR The whole concept of the meme works against that.
AA Yeah, exactly, that’s why I’m fascinated with them. Memes are so fast-moving and so collaborative and so constantly shifting that the search for an author is really folly. This could be a template for a different way of trying to approach the notion of authorship and creativity, a way that I’m not sure law can fathom yet. I don’t know if you saw Texts from Hillary.
LR (laughter) Yes.
AA Well, so, there was a great moment—the woman who had taken the original photo that became one of the memes objected because her work had been used without her permission. Her first reaction was along the lines of “I took that photo, that’s mine!” The blog Texts from Hillary settled with her by saying “OK, we’ll attribute each photo to you.” If you go to their blog which collects the memes, you’ll see under each new meme, there’s a little caption saying “Original image by. . .” That is preposterous! She has no more claim—
LR —to these new objects that are being created, they don’t really belong to her any longer, she’s not the author of the texts that are being used to inform the original image.
AA Yes, right! She has no more claim to that than the thousands of other people who changed the photograph and made it happen. Assertions of authorship or ownership need to be re-conceived in light of the way that culture gets produced right now.
LR It’s pretty amusing because the entire situation houses the question, like you said, of authorship but also of provenance and how those things are being defined and redefined within the scope of legal space. . . It’s really pretty weird, because it’s generally uncharted territory, we don’t even really have the language to address some of these tensions, as the language is being created and stretched or expanded as each of these cultural shifts are happening! We are all experiencing it, but can barely talk about it, because it’s happening as we are experiencing it. It seems like kind of unchartered territory. The language has yet to be produced and we somehow need to unpack things in new ways, culture is finding new points of entry that actually don’t adhere to the same rubrics that have worked within art and law in the past. As objects are being created and recreated, does authorship even matter? Is there even a purpose of trying to protect or assert authorship? Is that sharing democratic, perhaps an indicator of some greater sort of cultural liberty? Creativity? Is art meant to be consumed and remixed, exclusively?
AA This comes up a lot in copyright law, where a lot of copyright scholars have come to recognize the importance of letting people remix and reuse pre-existing images. But even in copyright law—just to go back to Texts From Hillary for a second—there’s this assumption that artists at least deserve attribution, that if they take somebody’s else’s stuff and remix it, creating a new object, they should nonetheless acknowledge the “original” author. That is naïve in light of this fast-moving visual world we’ve been discussing, where authorship is already more collaborative than could ever be fully acknowledged. At this point, what’s the original? What is the significance of the notion of the original as things get reworked again and again and again? I’m particularly interested right now in how digital culture and street art intersect—street art and digital culture are realms where art is put out there in a way that invites its own re-working. The history of street art is a very important metaphor for thinking about art in a digital world. When you place an image online, it’s exposed for everyone to use in a way entirely different than displaying an object in a museum; it creates a very different vision of what the object means.
LR If you put it like that, it makes sense that people would be up in arms about the presence of the meme and the expansion of digital practice. For example, the Culture Wars had to happen in the ’80s in order for our current understandings of “public art” or “community art” or “political art” to be produced. There are these cycles within art history—our conversation now about the potentiality for democracy within digital practice has happened before with Kaprow’s “happenings.”
LR But it’s strange also to map out these cycles and begin to realize that while definitions have shifted, and understandings have expanded, that perhaps the law hasn’t shifted as much as it could?
AA Oh, yeah.
LR These cycles sometimes can seem a bit redundant. Ultimately, it all comes down to how one can challenge notions of space, and how we can position ourselves within these conceptions. Also it brings up questions of private versus public visuality, and how that can inform or impact intent when making or modifying objects.
AA Absolutely. A couple of years ago, there was this guy called “The Splasher” in Williamsburg “attacking” street art. He was attacking some really great works, like Swoon, and Faile, splashing buckets of paint on them, and leaving his written manifesto in his wake. But what really fascinated me was what Swoon and others did with those attacks, which was to go back and incorporate the splash, make new work on top of it. It really captured something about transgression and art: Art becomes this sort of collaboration amongst vandals. The original street artist “vandalizes” by creating work in public space. The splasher/vandal comes and vandalizes the first vandal’s work; the street artist sees that and incorporates that and builds on that, and out of this rises a conversation about destruction and creation being always bound up together. It was a beautiful example of a very contemporary way of thinking about creativity. Once again, legal rules have not even begun to approach this. In relation to art, the law is still based on notions of genius, as in, there was a guy—and it’s always a guy—in his studio thinking great thoughts all by himself and then his object is magic and unchanging forever.
LR (laughter) Yes, creation as a sort of gifting into the universe! To touch on what you said about the stereotype of “artist”—I’ve been very curious and excited about people being better at redefining the studio. There are a lot of artists who feel really chained to the concept of studio space because it validates having a space where there are things in it—it validates, for example, the tradition of painting and so artists sweat to pay their monthly studio costs to have a little window of space, pressured by the myth of making, rather than the reality that perhaps a square inch of shared space might not be conducive to the creative process. The contemporary artist, the artist that is embracing current culture, is not the artist that is alone, brooding in the studio, and “the studio” isn’t simply a singular physical site, it can extend beyond that. It’s an artist that acknowledges a model that is bigger, more complex, and often more collaborative. It’s artist and people combined, wrapped up into the same narrative, rather than polarized at the hand of art history.
AA Even the idea of the object, as old-fashioned as it may seem, the assumption that art has to be an object, is still a very sticky concept that we cling to in law. This is true even though conceptual art and the dematerialization of the art object are so longstanding now. But of course, it’s very hard to try to make legal rules around the free-floating idea of dematerialized, conceptual art.
LR How does one even create rules for something that can’t always be described in full—like, for example, art practice that finds its foundation in experience (literally—like, Carsten Höller-style) or presence first? It’s so subjective!
AA There was an important conceptual artist—Fred Sandback—at Zwirner last spring. I took one of my NYU classes to go check out the show, and we were talking about some of the legal issues that surround works like this, such as the way the work becomes the authentic and legitimate property of the owner because he owns the certificate of it. Like the work of Dan Flavin, the certificate is a big part of the work. If you lose the certificate—
LR —you’re screwed! (laughter)
AA All you’ve got is a light bulb now! My law students, many of whom were unfamiliar with conceptual art, struggled with this idea in a way that I found fascinating. They said, “Wait, why is the light bulb art? If the light bulb is art, why are you saying it ceases to be art once the certificate’s gone?” Their struggle was so interesting as a testament to the persistent power of those ’60s conceptual artists, radically questioning the notion of what an art object. And those questions strike me as particularly relevant again right now in light of digital culture.
LR I love the title of your forthcoming piece, “The First Amendment and the Second Commandment,” your exploration of the relationship between art and religion and Flavin’s light bulb is a great example because the law in that case, and in the case of much of conceptual art—even more so than digital art, in some scenarios—really comes down to a leap of faith. What the object is or is not concerns your belief (or lack thereof), and your faith in the validity of such items like certificates, which is actually a fairly conceptual notion in itself!
AA I think it’s interesting too in terms of authenticity as a concept. It seems as if there’s some sort of magical fantasy of authenticity imbedded in the art market right now. There have been some fascinating cases. One case was about a Calder that seemed to be perfect, but was discovered to be a fake. A bunch of dealers saw it and at first they said, “It’s beautiful. It’s magnificent.” But as doubts arose, they went to Klaus Perls who was for a time the expert on Calder. Perls said, “No, it’s a perfect fake!” At that moment, the work went from being worth God knows what, to being unsalable. It’s interesting to consider, Why? If it looks the same, why is it worthless? Why is it no longer art? The value of an authentic work is based on some fantasy of the artist’s touch or presence in the object that’s still there, that we still yearn for, or that we monetize, I’m not sure which.
LR It’s a reliquary in it itself, to touch an object, to have that provenance, that chain of exchange—“I touched this and it was yours.” It connects you to the object through experience. It’s definitely fantasy, like you said, but it’s also indicative of a very concrete social desire. The object stands in for the body of an artist, so perhaps the body itself is off-limits to our hands, but the object, that object can be owned by us, which is symbolic of physical presence, of an intimacy of exchange. For law to be written about these things that are so imbued by emotion, and psychology, things that have the tendency to be irrational, while, on the other hand, the law is supposed to—in theory, at least—be this even-handed, rational force. . .
AA There was this moment in the Calder case where the judge said, “I actually disagree with Perls and think this is a real Calder, and I’m going to decide that it is as a matter of law.” But you can see the irrelevance of law in that moment, because regardless of what the judge said, Klaus Perls—whether he was right or wrong—he was like an oracle! He was pronouncing the work to be real or not, in a way we will never fully know or understand. This comes up around Warhol’s work as well. Ultimately, seeking authenticity strikes me as a yearning for something we’ve lost. I think the idea of the authentic object is becoming less and less relevant in a remixed culture, so it’s almost this marker of loss, the desire for the real thing. For example in the photography market the quest for the vintage print—it’s a completely artificial concept but it represents to me a yearning for something that’s no longer there: The real.
LR There’s always a looking backwards, people can’t always fully exist right now, there has to be something that they’ve lost or left behind otherwise, what would they yearn for? Yearning for the unknown of the future is so much more difficult; the past therefore maintains the semblance of being more tangible. To go back to the fake, well, the fake is really curious to me, or the genuine fake (laughter), replications or imitations done with transparency, or with other interests. There’s a whole crop of genuine fake artists, even, I’d say, people who toy with ideas of artificiality, authenticity, like Lars Laumann, for example, or the work of a more emerging artist like Jennifer Chan. You’ve noted that the First Amendment systematically accords greater protection to verbal rather than visual representation. You have also cited the Bible, and then, as a contrasting point, the history of iconoclastic literature, as narrative texts that dig up social and cultural anxieties. I’m wondering, within the law, where there is room for myth? Narrative storytelling? Is the history, as written by the law, some version of folklore?
AA That’s beautiful, and I think one of the things that’s interesting to me is that actually law is a very good metaphor for this kind of authorship that we’ve been talking about, a kind of collective authorship that is continually reworked and no one really owns it. Cases exist to be built on. Many people conceive law as this rational realm, an objective place, but despite this conception, the law is consistently pervaded by anxiety, by myth, by cultural narratives that are not acknowledged and yet continually influence the outcome of cases in ways that we deny. And so I’m interested in looking at law as part of a larger cultural text, as a place where we express myths, anxieties, fantasies about our culture. This view opens up a new possibility for theorizing law as a text or an artifact.
LR I love that, yes, absolutely. Ok—let’s talk about porn. (laughter) No, seriously, I want to hear you talk about the work you’ve done regarding pornography, culture, and the law, specifically in relation to the view of a woman’s body. I’m going to skip the question, “Is pornography art?” and just ask simply: How does pornography factor in to everything else we’ve discussed up to this point?
AA Pornography is important for me to consider because it’s become so mainstream as a mode of expression and cultural representation. I don’t mean just that hardcore porn is more prevalent, which of course it is, but also the way everyday culture looks more and more like porn.
LR Totally! We are stitched into a cultural fabric that is soaked in sex.
AA We have to take it seriously if we are thinking about visual culture. Porn has a real, strong hold on how we strive to represent ourselves. All you have to do is look at anybody under 20, any girl’s Facebook page, to see that porn is both an inspiration and a constraint in how we choose to represent ourselves.
LR It’s even where people choose to hold the camera—the angle alone shifts as you grow up, there’s this gendered and psuedo-pornographic posturing that girls learn as they begin to document themselves. If you are 12, 13, the (often camera-phone) angle usually is raised above eye level and off to one side. Then you see the angle change as people get older, it comes down lower, goes from the side to the front, the gaze is more direct. But when a picture surfaces of a woman on social media, celebrity or otherwise, regardless of age, nine times out of ten, if it’s a “sexy shot” they strike a pose, and the pose and the angle set the shot up for the body within it to be consumed, to be seen, but rarely confronting the camera, or those doing the seeing. It’s like a bizarro contemporary twist on the history of the Grande Odalisque. But the body being depicted, and the person constructing the shot, is one in the same! Is it radical, all these girls and women photographing themselves? Or are they just items of consumption?
AA Our visual vocabulary or vernacular is a mash-up of TV, porn, high art, and photography, mixed in a way that makes me want to take porn seriously. Something you said made me think about sexting because there is so much anxiety about sexting and a lot of it has to do with the anxiety about the child becoming a photographer and what that represents. What’s interesting to me is who the author is. For a long time with the construction of the child, the child is the ultimate object of photography. We all say, “Here’s the picture of my kid!” and bound up in that is not only pride but also power and possession. Then suddenly the kid becomes the author of her own pictures, of herself and it’s that moment of claiming authorship, claiming to be object and subject, claiming to be the photographer that marks adolescence, subjectivity and the cusp of adulthood. It suddenly takes us from our trope of the innocent, perfect child to the trope of the child as potential monster, dangerous, “out of control”—someone we need to control. Often both sides of these projections are coming out of the same child. In sexting cases where we prosecute someone for taking a picture of herself, she is “victimizing” herself. Here, the child is viewer and viewed, subject and object, photographer and object.
LR I wonder if I had a kid if I’d be psyched to see her taking the initiative of documenting herself, claiming control over the camera, rather than opting for someone else to photograph her? Maybe “psyched” is the wrong word, but it does bring up questions of empowerment. . .
AA I would agree with everything you’ve said that there’s a possibility of freedom and self-invention. The only thing that I would question is how much are we already constricted by the culture so that any move we make, every picture we take is already deeply constrained. It’s really, ultimately, a question about how much agency we have in a world in which we are bombarded by images and shaped by them. With all of this, we have to ask: how do we make images even as we’re constantly formed by them?
LR What images have you been paying close attention to, things have you been watching lately?
AA I am staying tuned for the Richard Prince decision. A lot of what we’ve discussed here today will be wrapped up in what happens with that case.
Legacy Russell is a Contributing Editor for BOMBLOG’s Art section. She is a writer, artist, and curator. Follow her on Twitter: @LegacyRussell.