Balkinization: Art in the Shadow of the State

Art in the Shadow of the State

This weekend I attended a conference at King's College, Cambridge on Arts and the Law. The focus was on law's relationship to non-traditional forms, including conceptual and performance art.

As I listened to the various artists talking about their work and the legal problems they faced, it struck me how much, in the modern world, art still exists in the shadow of the state. For the most part, the artists at the conference rejected the idea that they should enjoy any special legal privileges for their activities because they were artists and they considered what they did to be art. Yet at the same time, the law does carve out special protections for art as a category. Examples are obscenity law, which generally excuses expression that the state believes has serious literary, artistic, political or scientific value, and intellectual property law, in which claims of artistic creativity may affect judgments of copyrightability and fair use. Thus, the law treats things it recognizes as art differently from things it does not recognize as art, no matter what the artists themselves think. In this way the law shapes incentives for art to be one way rather than another. Although artists like to pride themselves on pushing the envelope of existing forms of expression, the law, and thus the state, to a significant extent, still shapes the nature of that envelope.

Much performance art also depends on spaces for performance, which makes artists dependent on laws that grant access to public and sometimes private spaces (including, among other things, nuisance and zoning laws). The U.K. does not have public forum doctrine, as the United States does, and even the United States allows many different forms of licensing requirements for public performance that shape the kinds of art that are performed--and the cost of producing art. Many artists prefer to travel under the radar screen of law-- not to ask permission for performances in the hopes that no one will stop them. Artists who want to do large scale works cannot take that route. Often they find that merely by asking permission they enmesh themselves in a wide variety of bureaucratic requirements. This too, shapes incentives for artistic production, particularly for non-traditional formats.

Law gives incentives and shapes the structure of art in still another way: Non-traditional forms of artistic expression are protected to the extent that they appear to conform to already recognized media of communication and to existing civility norms. As a result, the process of creating the art-- which the artist may regard as central to his or her work-- may enjoy much less legal protection than a recording of the process, especially if it takes the form of a recording, photograph, or film.

Finally, art still depends heavily on subsidy, whether private subsidy (subsidized in turn by government tax breaks) or direct government subsidy. Failing that, artists must rely on financial support from family, friends, and jobs unrelated to their art. (This too, is a kind of subsidy, a modern form of what in an earlier era would have been called patronage.) The church and monarchies no longer are the most powerful patrons and funders of the arts; the modern welfare state-- and the system of intellectual property law-- have taken their place. Both government funding and market support (as structured by intellectual property law) shape the focus and content and incentives for the production of art, whether one regards this as a good thing or a bad thing. To the extent that artists cannot fit their projects within these two major sources of support in modern societies, they may have great difficulty succeeding over time.

Posted 6:42 PM by JB [link]

Comments:

This is a fair enough view of the matter, but I always resist what I perceive to be an (innocent) impulse to appropriate the arts for the law. Take, for example, Although artists like to pride themselves on pushing the envelope of existing forms of expression, the law, and thus the state, to a significant extent, still shapes the nature of that envelope. The premise is an unfair generalization as to what artists "like," and in any case it seems entirely possible that what law has to say about what an artist likes is perfectly irrelevant to the artist's project. But for some reason, when proponents of law (like those of science in an analogous context) set out to view art in legal terms, the exercise often turns into a demonstration of the determination of artistic output by legal forces. I believe there are many occasions of artistic independence from (in addition to obliviousness to) law.

# posted by

Dean C. Rowan : 8:41 PM

When I was a performing artist, I never thought about the law at all, except to note that I was aware that there were few subsidies. But note that the question of subsidies is less a matter of law, and more a matter of policy. And of course at times arts programs have been funded, or had funding cut, based on preferences of the dominant party in Congress. It might become a matter of law if there was a legal issue of content.

Most good art is not obscene. Shocking material is often rather crass, and hence boring art. I do not mean to say that some good art might not in fact be obscene. And when I say "good" I am thinking in terms of craftsmanship, nuance, and sensitivity. I could make this point more clear with the following analogy. Mark Morris is an outstanding choreographer, perhaps the most profound performing artist of our time. He is also gay, and his work sometimes reflects that. But his work is not good because he is gay, it is good because it is good (yes I know that is circular, but I feel no compulsion to define art beyond noting craftsmanship, nuance, and sensitivity). Similar with obscenity; it might be good art, but the myopia with shocking to "raise the consciousness" of the viewer often substitutes for the playing with rhythms, patterns, sequences, and the like, that are the hallmark of good works of art. To focus on obscenity, on both sides of the debate, pro and con, unfortunately obscures the promotion of the valuation of performance, of having an "art sense." Once you factor in the fact that we call pop musicians "artists", and do the same for many rather crass actors and actresses, then recognition of "art sense" becomes ever less likely.

# posted by

Chausovsky : 10:35 PM

When I think of art and the law, I am reminded of Hans-Georg Gadamer's "Truth and Method" examination of Hermeneutics. Gadamer starts with the arts, looking at meaning from the standpoint of the creator, the performer of someone else's creation, the director, the audience, etc. All do not share the same meaning or understanding, whether contemporary or over generations. Extend this to originalism in understanding the law, particularly constitutional law.

Art benefits in the US from copyright protection provided by Congress. The constitution's limited time protection has been extended over the past two centuries to its current life + 70 years (and perhaps more). Does this protection work to stifle art? It sure as heck generates legal fees. Does the current statutory protection comport with the originalism of the copyright and patent clauses?

# posted by

Shag from Brookline : 9:09 AM