Art in the Shadow of the State

JB

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]