the artist is present

From March 14 to May 31, 2010 Marina Abramovic sat, motionless, in the atrium of the New York Museum of Modern Art. Each day Ms Abramovic sat in the gallery, a parade of spectators – members of the public, artists, celebrities - sat opposite her, viewing and participating in the work from a seat positioned directly across from the artist.

Marina Abramovic during performance of 'The Artist Is Present' at MOMA

This performance was the latest in a range of pieces created by Ms Abramovic since her career began in the early 1970s. In her work she has run the gamut of physical experience – she has stabbed herself, leapt through fire, drugged herself, used her naked body as a fleshy gallery doorway and walked the Great Wall of China.

In so doing, Ms Abramovic has pushed the boundaries of artistic practice. What remains to be seen is whether she will push the boundaries of legal practice also.

The Berne Convention recognises protection for literary and artistic works including “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression …”. However, while visual art forms have long been protected by our legal system through copyright law, performance art – work that is, by its very nature, designed to be ephemeral or experienced at the time of performance - has fallen outside the traditional purview of the Australian Copyright Act.

Despite their often vivid materiality, performance art works are not of themselves expressed in a form that copyright law regards as material. Copyright does not protect information or ideas, but the expression of ideas. As such, the requirement of fixation is a fundamental precondition for the grant of copyright. This means that copyright arises when an idea, concept or information is written down, expressed visually, filmed or recorded.

Once a copyrightable performance has been ‘fixed’ in material form, the author is entitled to enforce exclusive economic rights which require her consent for public display and performance of the work and the production of any derivative works based on the copyrighted work. She is also entitled to the exclusive moral rights of paternity (right of attribution and right against false attribution) and integrity (right against derogatory treatment of the performance in a way that prejudices the reputation of the author).

These copyright protections are supplemented by specific performer’s rights. Currently, performers’ rights in Australia currently extend only to sound recordings of performances. However, the WIPO Beijing Treaty adopted on June 24, 2012 (full disclosure: I worked on the negotiation of this Treaty on behalf of the Australian government) recognises performers’ moral and economic rights in their audiovisual performances, and ratification and implementation of the Treaty by Australia will involve the extension of the additional protections to audio-visual performances.

Thus, we can see that Australian law has the basis for the protection of both economic and moral interests in performance art – when ‘fixed’ in material form. In the documentary The Artist Is Present, Ms Abramovic explained the way in which her gallery had been able to monetise her performances through the production of limited edition photographic works documenting her performances. These photographs (and other visual records of her performances) would meet the requirement of fixation – however, copyright would attach to the photographs only, not to the performance itself. Obtaining copyright protection for the performance as a whole would require extensive documentation – and even that would be insufficient to protect Ms Abramovic from other artists’ re-enacting the works.

Ms Abramovic explored these limitations in her recent exhibition ‘Seven Easy Pieces’, in which she performed ‘cover versions’ of influential performance art installations from the 1960’s and 70’s. Importantly, prior to the exhibition Ms Abramovic scrupulously obtained consent from the original artists.

Another performance artist engaging with the relationship between performance and property is Tino Sehgal.  Mr Sehgal has monetised his ‘constructed situations’ by selling the right to re-perform them. The sale consists of Mr Sehgal entering into an oral contract with the buyer outlining the conditions of sale and re-performance, and the artist subsequently instructs interpreters in how to re-perform his works in the purchasing institution. Importantly, however, Mr Sehgal prohibits physical documentation of his work, including catalogs, photographs and printed press releases, which means that his performances are only copyrightable in those jurisidictions that do not require a work to be ‘fixed’. This would mean that currently, Mr Sehgal’s work would not be subject to copyright protection in Australia.

The explorations of Ms Abramovic, Mr Sehgal and others raise real questions in relation to the nature of a copyrightable artistic ‘work’, the importance of the ‘presence’ of the artist and the blurring of lines between an idea and its manifestation in performance art. To date, however, performances such as ‘Seven Easy Pieces’ and Sehgal’s ‘Kiss’ have only highlighted the very real gaps in the application of copyright protection to performance art – and the questions that inevitably arise in attempting to propertise performance.

Indeed, stepping back from the MOMA atrium, Ms Abramovic’s work poses an even broader question: in a world where all identity is performative, can it be said that property rights should subsist in all identities?