0B

ArtContracts&ArtistsRights

Artpracticesofthe1960sand1970sImmaterialPracticesandtheir contradictoryimpactonarttheoryandartmarket With the emergence of conceptual art practices in the 1960s art began to investigate relationships and systems that determine its role and meaning. It attemptedtoredefineconceptssuchasauthorship,autonomyofart,language,the viewer,ethicalimplicationsofartisticact,etc.Someartistsalsoconcentratedonthe process asmore important then the final product. The discussion abut art became less a field for poets and writers, now an independent discipline art theory was more interested in fields such as social sciences, anthropology etc. Artists shifted their gaze towards the institutions, economical and social structures, as active agents that participate and determine the meaning and function of their work. Althoughthefocusofmanyoftheseworkswastheartsystemanartrelatedtopic, thesediscussionswereoftenalsorelatedtobroadersocialmovementsofthetime. Art practices that emerged rejected object based productions and introduced immaterialproductionssuchasperformance,landart,publicinterventionsetc. Even though these new practices had occupied the position of what we regard relevant for contemporary art practices, museums and galleries, as well as publicationsandeducationinstitutionsworldwide,hadexhibitedanddiscussedsuch art,adoptingmanyoftheirclaimsasnewstandardsinartandartdiscoursewhereas artmarkethadnotfollowedthispath.Onecouldmakeagoodpointsayingthatthis arthasbeenandissoldonaregularbasisjustasanyother,beitobjectbasedornot, conceptual or formal, cutting edge or traditional. And this is mainly true, for after some initial stuttering, art market soon incorporated these practices making surprisingly little effort in approaching these practices in a different way than it approachedtheartofearliertimes.Artmarkethasbeenbasedonthefactthatart has been enjoyed by it's purchasers as valuables that should either produce a psychological effect trough purchaser's relation to the subject matter or, and we believethistobethecasemoreoften,asacommoditythatassumedit'smonetary value according to the professional reputation of it's author. The rhetorical implicationsoftheworkofartthatmighthavebeenthereasonforitscreationdid notmeanalottothetypeofexchangetheartmarketwasinterestedin.Whatwas necessarythough,wastheexistenceoftheobjectthatservesasthecarrierofthese rhetoricalideasinorderfortheartworktobesold.Sowiththeemergenceofthese new practices the relationship of the art and market was profoundly disturbed by thefactthatsomuchartdiscardedtheveryconditionthatmadeartworkasellable item.Asweallknow,artmarketsoonadoptedthesepractices,realizingthatmostof themproducedsomeobjectsandeveniftheyhaven'ttheystillcouldattainamarket value according to the status of it's author, if market found ways to exchange a

signature confirmation of authorship for monetary compensation. The contradiction is that the notion of authorship is among the concepts that were profoundlydeconstructedandredefinedbytheseartpractices(aswellastheories). Wetendtobelievethatthemythofauthorshipastheselfrealizationofcreative individualisstilltherootuponwhichart'smonetaryvaluedepends.Thisdichotomy ofwhatcontemporaryartpracticeandarttheorytakeasalmosttheirofficialstance towardstheseconceptsandthepositionartmarkettakesisofparticularinterestto us. It seems that the fact that thecontemporary art market and contemporary art practicemanagedtocoexistinrecentdecadesisbasedonthesilentagreementof ignoringthisfact. In capitalist societies the question of positioning towards and within the market emerged almost concurrently with the art practices that needed to rethink their positions in this regard. Some artists made criticisms about the art market, or art system trough their work, some used above mentioned dichotomy as a way to underlinethenatureoftheirwork.Maybeoneofthemostexemplaryworksofthis type could be Yves Klein's Volumes de sensibilite picturale immaterielle (Zones of ImmaterialPictorialSensibility)whereKleinsellshisimmaterialpictorialsensibilityin exchangeforagoldleaf. Contractsregulatingartistsrights Seth Siegelaub, in collaboration with a lawyer Bob Projanski, drafted a contract called The Artist's Reserved Rights Transfer and Sale Agreement (1971) that was createdtobeusedandadoptedbytheartistsandgalleristsacrosstheinternational artmarket.Itwasintendedtosuitanykindofartproduction,beitconventionalor not, in order to create a legal way of distributing art and controlling artist's rights overtheirproductseveniftheyarenotphysicallyintheirownership.Siegelaubwas abigpromoterofconceptualartand,amongotherthings,organizedexhibitionsthat wouldhavenomaterialexistenceexceptforthecatalogasforinstancethefamous XeroxBookexhibitionthattookplaceinDecember1968. "Hewasanaggressivepromoterandpaidasmuchattentiontopressandpublicity astothecontentofexhibitions,showingthatevenunconventionalartworkcouldbe sold."[1] "Don't forget that Siegelaub was a dealer, and for him the question was howtosellapiecebyDouglasHuebler.Howcouldyousellapiecethatwas,say,just apointonthewallwithalittletextsayingthispointisthecenteroftheworld?"[2] One of the most notable instances of The Artist's Reserved Rights Transfer and Sale Agreement is that after artists sell their artwork they maintain their right to benefitfromincreaseinresalevalueintheamountof15%ofthisincrease,providing thattheycantracktheownershipoftheirwork.Thisbringsustotheclauseofthe

agreementwhichexplicitlyenablesthemtoadviseinstallationoftheirworkorveto it if they believe exhibiting under proposed conditions would be harmful for understanding, or in contradiction with the meaning they intended for their work, andthereforeharmfulfortheirreputationasartists.Theartistwouldholdtheseand other rights in the course of their life time, as well as during the lifetime of a survivingspouseplus21years,soartist'schildrencouldbenefitfromtheseartworks just as is the case with the other kinds of inheritance. This contract was free of chargefortheartistsandtheycouldalsoadoptittotheirownneedwithorwithout consolidationwiththelawyer. TheresalerightssimilartothoseproposedbySiegelaubhavebeenadoptedbythe EU legislative but are governed by different national laws. The question of the minimalincreaseinvalueoftheartworknecessaryfortheartisttosharethebenefit fromthesecondarysaleinHungaryforinstanceis19whileinCzechRepublicthis minimumis1500.[3]Thepercentagethatshouldbegiventotheauthordepends onthenationallegislativeaswell. Artistshavetriedinseveralwaystokeeptheirrighttobeconsultedregardingthe installation of their work. Prior to Siegelaub's contract a group of artist under the name The Artist's Worker Coalition have tried to achieve this goal with a different approach.Oneoftheartistsfromthisgroup,Takis,hasremovedhisworktitledTele sculpture from the exhibition held at MOMA in January 1969. He believed the mentioned piece did not represent well his body of work at the exhibition titled Machine Show and has, prior to the opening of the exhibition, complained to the director of MOMA and offered another, more recent, work for the show, but his complaint was disregarded and the sculpture that was owned by MOMA was exhibitedanyway.Takisandacoupleofotherartistshaveenteredthemuseumand removedthesculpturefromtheexhibitioninanattempttoinitiateadiscussionwith themuseumofficialsaboutseveralmuseumpoliciestheyfoundnonproductive. The right to be advised in ways his art is exhibited was also the focus of Daniel Buren'sAvertissement.DanielBurenwrotetheAvertissementwithMichaelClaurain 1968/69 and it was used since that time as a contract in sale of his works. The Avertissement contains clauses on rights of reproduction, rights of exhibition, attributing origin (authorship), but the clause that could be said is the most interestingonesaysthatincaseofbreakingthecontractfromthesideoftheowner the work ceases to be the authorship of Daniel Buren. Buren points out in an interview with Maria Eichhorn that the major difference between Seth Siegelaub's contractandhisAvertissementisthefactthatinSiegelaub'scasetheartistgets15% of the increase in value of any resale of her/his work. What Buren objects in this clauseisthefactthatinthiswaytheexchangeoftheworkasapracticeseemstobe only about the money. Avertissement is a contract that is trying to enable Daniel Buren;tocontrolthelifeofhisartworksandpreferablythewholebodyofhiswork, to be able to track the ownership of the work at any given time, but more importantlyit'spresentationpublicorprivate,reproductionandinthatwaytryto

protectartwork'scontentfrom"incredibleformsofmanipulation"[4]Inthiswecan seethatDanielBuren'scontractinheritssomeoftheheritagefromtheDroitmoral, alawthatwasadvertisedextensivelybytheintellectualsof"Somepeopleclaimthat thesignatureoftheartisthasagreatvalue;whileforothersithasnone,Infact,the only value of an artwork is that assigned to it by the buyerwhich has absolutely nothingtodowiththequalityofthework(...)Inallcases,thehighorlowvalueof the work (including extremely expensive work) depends first and foremost on the amountpaidbytheinstitutionorcollector." Thequestionofsignatureisusuallyrelatedtotraditionalmediasuchaspaintingor sculpture. It is also very important when it comes to determining originality of the artworkandit'svalue.Butasmanyotherthingsthatfunctionperfectlyinthesphere oftraditionalpracticesitbecameproblematictoworkwiththesignaturewiththeart from 1960's onwards (there wereearlierexamples that addressed the signature in anengagingmanner,butfromthe1960'swecansayitbecamealmostacommon issue).Howdoyousignalandartpiece,aninstallation,etc?Artistsstartedtodeal withthematterofsignaturetroughtheuseofcertificate.WhatisspecificinDaniel Buren's Avertissement is that it has to be signed by the buyer and not by Daniel Buren. DanielBurenexplainsthetworeasonsfornotsigningit: FirstlySomepeopleclaimthatthesignatureoftheartisthasagreatvalue;while forothersithasnone,Infact,theonlyvalueofanartworkisthatassignedtoitby thebuyerwhichhasabsolutelynothingtodowiththequalityofthework(...)Inall cases, the high or low value of the work (including extremely expensive work) dependsfirstandforemostontheamountpaidbytheinstitutionorcollector.[5] HedecidednottosigntheAvertissementaccordingtohisattitudethatthebuyer istheonewhosetsthevalueofthework.Soinhiscaseitistheoppositeoftheusual practice; it is him who collects the signatures from the buyers trough his Avertissementandnotviceversa.Secondly;oneoftheideasrelatedtoconceptual artthatBurenopposedatthemostistheideathatartdoesnothavetobevisual anymoreandexistjustasanidea.Hesays:"Thisinvisibilityseemstoworkinparallel tothenotionthatyoucoulddealwithacertificateandnotaworkanymore(...)it seemedtoreinforcetheideaoftheconceptsuperimposingtheideaontop ofthe physicalityofthework."[6]Burenhimselfneverconsideredexhibitingthecontract itself,becauseitwouldthenreducetheworktoasignatureownedbytheauthoror a second party. "To me using the certificate with the signature is really banal becauseit'sjustanotherwaytoinscribeandpossessthesignature.It'sasurrogate way of signing when it's impossible or ridiculous to sign on a piece directly." [7] Avertissementtherefore,mustnotbeconfusedneitherwiththeartworkitselfnorits signature, it is merely the tool for maintaining certain control over Buren's work afterthesale.

"Weconstantly,inthispartoftheworld,complainthatthereisno[art]market.I think that's good because when it comes it won't be exactly what we have imagined." excerpt from an interview with Dan &Lia Perjovschi, Romanian contemporary artists Thequestionsofsellingormakingalivingofartwerereferredtoindifferentways in different economical systems. Yugoslavia had a moderate version of socialist/communist regime that resulted in an art production that had been in a dialoguewith(influencedby)theartfromtheWestandwasnottheartproduction onemightimagineinacommunistsocietysocialistrealism.But,ontheotherhand, thesocialpositionofartdifferedfromitspositionintheWest.Sellingandbuyingart was never extensively practiced for two reasons; firstly Yugoslavian economic standards were rather low in comparison to the most western countries, so the number of potential buyers was smaller and second in socialistcommunist state thepositionofartwasatleastdeclarativelynottheoneofprivateentrepreneurship asitwasthecaseinacapitaliststate.Thepositionofartwasregardedasacultural production made for the people and this legacy influenced relations present in contemporaryCroatiancontexttothisday. Understanding this context provides a better understanding of what contemporary Croatian artists, Sanja Ivekovi and Dalibor Martinis, wanted to achieve with the artist contract they proposed to be used for controlling and maintainingprofessionalrelationshipsbetweenvisualartistsandculturalinstitutions suchasmuseumsandgalleries."The[Yugoslav]societyacknowledgesthatthevalue of an artwork cannot be validated in the act of buying and selling because the socializationofartisnotgeneratedthroughthepurchaseoftheartwork,evenifthe partybuyingtheartworkisapublicinstitution,butthroughpubliclycommunicating thecreativeprocess."[8]Althoughdeclarativelyadheringtotheseideas,Yugoslavian generalpublic,asawellasinstitutions,werestillinfluencedbythebourgeoisideas ofwhatartisandhowitshouldparticipateintheflowofgoods/capital. Asalreadymentioned,itisinterestinghowideasdevelopedinthesecondhalfof the 20th century, which worked on deconstructing the concepts such as artistic geniusasautonomouscreatororthenecessityofmaterialembodimentofart,which werepracticedontheartisticandtheoreticallevelusingnewmodelsofthinkingand performingart;butatthesametimemodelsofplacingthesenewpracticesinthe flow of the capital market were based on the same principles/concepts this art worked on deconstructing. The way it had been sold did not challenge the market system established so far, but simply made attempts to get included in it. Sanja Ivekovi and Dalibor Martinis's contract, among other things, made an attempt to address this ambivalence, but let us not forget that their approach to this partly grew out of their social context a favorable one in regard to this issue. "[This] society does not acknowledge the act of exhibiting or public appearance as a

moment in which visual artist exchanges her/his work with the public and impels her/himtoassureher/hisphysicalexistencethroughthemarket(bysellingthework ofart).Thereforespecificformsofartisticactivityarenourished,for,inordertosell anartwork,theartistmustcreateobjectsthatcanbesold.Onthecontrary,theact ofexhibitingisregardedsolelyasanopportunityofferedbythesocietytotheartist asawayofaffirmingher/himselfinordertoindirectlyattainahighermarketvalue." [9] We can also see Daniel Buren's Avertissement as an attempt to address these issueswhenhedefineshisworkasaseriesofrelationshipsthatneedtobemetfor theworktoberegardedashisauthorship.Butthefactthattheworkisdetermined bythecontractinordertobesoldsomewhatobjectifiesthepiecebytransforminga ratheropenqualityoftheworkintoaclosedone.Webelievethat,incomparison, askingforreimbursementforartasapublicappearanceneedsnointerferenceinto theworkitselfinordertobeoperative. Art institutions in Yugoslavia were public and nonprofitable funded exclusively bythestate.Butbecauseoftheambivalentattitudeofartinstitutionsandgeneral public towards the social role of art and the ways of its production, most of these artists were and still are not compensated: "To make the situation even more absurd, all other participants in the realization of the exhibition (curators, translators, reviewers, guards, maintenance personnel etc.) are regularly compensated for their work by the society. () It is obvious that the artist, the subject and the initiator of the action, must demand a change of this for her/him unsustainablestate."[10] Thecontracttheysuggestedclaimedthat"itcanrespondtotheneedsofallvisual artists independent of their aesthetics or medium designations".[11] It is peculiar howartistsengagedinnonobjectbasedproductionandartdealerswhosupported suchpracticesweretheoneswhodraftedagreementsintendedforallkindsofvisual arts. We know now that Siegelaub's wish for his contract to become an internationally adopted standard used by all artists was in fact never answered as such. But the European Union has adopted, among others, a clause extremely reminiscent of the one first presented to us in Sigelaubs' contract (the clause regardingtheincreaseinvaluegainedbytheresaleofthework).InthecaseofSanja Ivekovi and Dalibor Martinis, as far as we know,[12] the contract was a failure. It wasneverusedbyanyartistinYugoslaviaorelsewhereandtheinitiativeoffinancial compensation for the arts public appearances i.e. exhibiting is as far from being adoptedinCroatiatodayasitwasthirtyyearsagoinYugoslavia. Daniel Buren managed to obtain these rights for himself. He even managed to attainapersonalstandardtroughwhichheexhibitsonlyifheispaid.Ashestatedin theinterviewwithMariaEichhorn,itwasnotapolicyoftheartinstitutionsatthe timetopaytheartistforexhibiting,butnowthishasbecomeanadoptedpracticein manyinstitutionsintheWest.

[1]http://en.wikipedia.org/wiki/Seth_Siegelaub [2]Maria Eichhorn On the Avertissement: Interview with Daniel Buren from InstitutionalCritiqueandAfter,JRP|Ringier,2006 [3] Information taken from Copyright Aspects for Authors by Carola Streul at http://www.artecontexto.com/en/readonline12.html [4]MariaEichhornOntheAvertissement:InterviewwithDanielBuren [5]Ibid. [6]Ibid. [7]Ibid. [8]SanjaIvekovi&DaliborMartinisUGalerijesUGOVORom(IntheGallerieswith aContract),PrviBroj(NumberOne)Theonlyeditionofanewspaperpublishedbya autonomousartistscollectiveunderthenameofRadnaZajednicaUmjetnika,which couldbetranslatedasArtists'WorkingLeague [9]Ibid. [10]Ibid. [11]Ibid. [12] We have got this information from associates of the artists but we haven't hadanopportunitytoasktheartiststhemselves.

1B

Droitmoral

ThetermmoralrightsisatranslationoftheFrenchtermDroitmoral,andrefersto the ability of authors to control the eventual fate of their works. The concept of moralrightsreliesontheconnectionbetweenanauthorandher/hiscreation.Moral rightsprotectthepersonalandreputational,ratherthanpurelymonetaryvalueofa worktoitscreator. The legal institute of Droit moral was practiced in France as a legislative practice, whileitstheorywasdevelopedmostlybyGermanauthorssuchasImmanuelKant. The lawyers of the French revolution contributed to the spreading of the idea of Droitmoralandin1814itcouldbesaiditenteredthelegislativesphereinFrance. ConceptsthatconstituteDroitmoral *therighttobementionedasanauthordroitlapaternitdel'oeuvre(droitde paternit) *prohibitionsofalterationsbysubjectsotherthentheauthordroitaurespect. * the rights of disclosing the work to the public droit de publier (droit de divulgation) There have been some technical problems because of contradiction between the economic rights of disposal which can be transferred trough the agreement,andthemoralrightsofdisclosureoftheauthorthatinprinciplecannot betransferredfromtheauthortotheotherparty(itisrelatedtotheideaofartas anexpressionofsomeone'sinnerselfandisthusinterpretedasamatterofpersonal right(inoppositiontoeconomicright). * the right of the author to access the work after it has been passed on to the ownershipofanotherpartydroitd'accs TheshorthistoryofDroitmoral The first chapter in the legend of moral rights was written, when Plato's disciple Hermodoros made master's lectures known outside the circle of inities. Both in antiquity and in the middle ages it was a matter, on one hand, of the private reactionsofwritersandartistsand,ontheother,inlitecirclesofevaluationswhich reliedongoodtasteorethics.Atleastuntiltheendofthemiddleagestherewere no juridico technical condtions for dealing with such problems, and when they emerged with the development of the printing privileges they were used in an economic interest of the publisher and the state. Secondly, until the 18th century, literaryandartisticcreationwasregardedasahandicraftandthusnotassociated

withagivenpersonalityorasalearnedprofession.Itisnotuntilthe18thcentury that the artistic and literary creation was conceptualized as a highly influenced by theemphaticengagementofacreativeindividual.Whenthisconceptappearedthe basicnecessaryconceptionforthelegalrecognitionofartistsrightsthatconstitute Droitmoralwasattained. Until the 19th century this new conception remained mainly within the realm of aestheticsandeliteartistcircles,ithadyettoenterthesocialhistoryandtobecome apartofthesphereoflegaltechniqueforDroitmoralthesphereoflaw. Theshorthistoryoftheconceptofcopyrightandimmaterialownership Withtheemergenceoftheprintingpressbeganthelongprocessoflearning,trough whichEuropeanlawyerslearnedhowtoadopttheconceptofimmaterialownership. DurringtheFrenchrevolutiontherehasbeenwidelyadvocatedarightofownership. ApartofthefactitcontributedgreatlytothedevelopmentofDroitmoralithasalso created a lot of technical juridical confusion. If there is a right of property of the author there must be a right of property of the distributor the purchaser. These problemswerediscussedbyGermanauthorslikeImmanuelKantwhoclaimedthat theauthor'srightisnottherightoverobject,butapersonalinherentrightandthus not transferable in the transactions. This question weather the Droit moral is an economical right, or a personal right, or the combination of the two, became the matter of discussion for the German writers and intellectuals. This question is obviouslylargelyinfluencedbytheattitudetowardsthenotionoftheauthorinthe aestheticsofthetime. The sources for the presented text about the Droit moral were diverse sources aquiredontheweb,outofwhichthemostwasusedfromthefollowingarticle: Stig Strmholm; Droit Moral, The International and Comparative Scene from a ScandinavianViewpoint,PublishedbySc.St.L.(http://www.cenneth.com/sisl/)