Conceptual Art and Intellectual Property (IP)

In a very interesting recent paper drafted by Guy A. Rub called “Owning Nothingness: Between the Legal and the Social Norms of the Art World”, its author pointed out how IP and more specifically copyright leaves important legal gaps and is rather insufficient in terms of regulating artworks created by contemporary artists, and more specifically those that belong to the movement known as conceptual art.

The author addresses a very interesting topic, namely: on the one hand, how do conceptual artists profit, from an economic standpoint, from the works that they create; and on the other hand, how do they manage to protect such art pieces. In this note, I will try to talk about the aspects that I found were the most important.

With respect to the first question, the author states that in terms of gaining profit from the works that visual artists are more inclined to benefit from the institution of private property, i.e. selling their works to a buyer and gaining from such a purchase, rather than from copyright. Of course, well-known artists such as Frida Kahlo, Picasso or Van Gogh, for instance, whose work is used as a commercial strategy to sell all types of merchandise (Stickers, writing or drawing books, bookmarks, calendars, mugs, cup-holders, etc.), would be the exception to this rule.

In regards to the second question, Guy Rub reminds us that ideas per se are not eligible for protection, as copyright stems on the principle that ideas must flow freely in order for the public to use them tranquilly. Indeed, copyright protects a concrete and tangible object created by an artist and that reflects the author’s personality, but not the idea behind it.   

Likewise, it must also be noted that the beauty or aesthetic or artistic value that an object may or not have is irrelevant in terms of assessing in an object may be copyrightable.

Rub further explains how conceptual art challenges said principle, given that, for this artistic movement, the object as such lacks of relevance and is rather superfluous. As a matter of fact, conceptual art is all about the idea that gave birth to the art piece, not even the artist’s intention, what supposedly the work is supposed to say, as conceptual artists refuse to be seen as a gorilla behind a cage whose work is explained and becomes meaningful once the critique interprets it.

Rub’s paper is constructed using the Cuban artist based in New York City, and passed away for some years now, Félix González-Torres, as keystone, more specifically, the art piece that was originally untitled and to whom people refer to as “Portrait of Ross in L.A.”. This work is made up of 175 pounds of candy wrapped around in cellophane paper that are scattered about a room.

Several things are thus mentioned by Rub in his article: first of all, one must know that there is no object whatsoever, only an idea of what the work must look like (a considerable amount of candy that is placed inside a building) that appears in a sheet of instructions provided by the artist. Second, it is not possible to fix the work, taking into consideration that the art piece may change according to the fashion chosen by the curator of the museum or gallery that decides to exhibit the work. Indeed, the curator may choose to place the candy around the art room, it may place them in a rectangular shape, or it may even decide to build a pyramid of candy (as depicted in the pictures that appear at the beginning of this article). In third place, the work will always be transformed, not only because of the shape in which it is presented to the public by a gallery or museum, but because the sweets picked by each museum or gallery will vary, and as this type of products are consumable. Actually, the public that attends such exhibitions is encouraged to take any candy they like. Other than the Félix González’s “Portrait of Ross in L.A.”, Rub quotes other conceptual art works that use consumable goods such as natural flowers which are, needless to say, perishable.

Given that any person may freely purchase 175 pounds of candy, wrap them up in cellophane paper and install them inside a room, and provided that copyright does not protect ideas, the proprietor of such an artwork owns nothing from a legal point of view, bearing in mind that there is absence of a tangible object. Hence, Rub asks himself why other artists, museums, galleries or whoever just don’t simply take the original idea grounds of the artwork and reconstruct another model themselves as their own new work.

The article provides an unorthodox answer that drifts apart from IP and that reminds us of the outmost importance of consuetudinary practices: no gallery, museum, artist, curator or person who belongs to the art world would reasonably dare to steal the idea that another conceptual artist had and execute it as if it was its own work. This would be deemed to be a gross forgery and it would completely undermine the reputation in the artistic milieu of the person who dared to do such a thing.    

In other words, there is a sort of ethic code and social norms that resemble the rules that we currently handle of private property that refrain people in the art world from using the work of another conceptual artist without its consent, even if from a copyright perspective there would be no true work, and even if there is no right whatsoever over the conceptual art work that was created. Accordingly, such social norms step up to fill in the gap left by IP and private property.

In a nutshell, there is an utter respect for the idea that another artist had or for the concept that it created. Said artist will be deemed to be the sole author and creator of the artwork. Thus, in order to use such a work, one must need to have the artist’s consent or that of its heirs, or the authorization of the owner of the work or of the person that handles the artist’s work and legacy. Furthermore, Rub explains how an enormous importance is granted to declarations that come from the artist or from the people in charge of the artist’s work, with respect to those art pieces that may be considered as authentic.

Such declarations are compared to authenticity certificates. These documents enable museums or galleries to exhibit an artwork and to state that such an art piece is indeed authentic. Moreover, such declarations permit said works from being bought and sold, borrowed, sold in an auction house, etc. Actually, it is curious how borrower’s agreements are executed between museums or galleries and artists or the proprietors of conceptual art pieces, despite the fact that even these contracts clarify that there is absence of legal object.

Additionally, property certificates are issued to buyers of conceptual art pieces. However, these documents do not have the same importance as that of the aforementioned declarations. Further, museums and galleries are likely to stamp the copyright symbol (?) on their website catalogue with respect to conceptual artworks, even if it is legally incorrect to print this hallmark.

Notwithstanding that the social norms that exist in the artistic world are the ones that protect conceptual artworks from forgery and counterfeiting, Rub highlights that with respect to derivative works or similar works in the conceptual art world, the social norms offer answers that are opposite to what copyright foresees. That is, two art pieces may even be identical, but they will be deemed as authentic and autonomous as long as they come from different authors, i.e. provided that the intentions of each of the artists at stake is different. Hence, an artist would not need to have the authorization of the creator of the prior work in order to use it, despite that copyright law holds a completely opposite solution.

I strongly recommend Guy A. Rub’s article: “Owning Nothingness: Between the Legal and the Social Norms of the Art World”, available in the following link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3433327, as it: (i) points out the significant gaps that currently exist in copyright law with respect to conceptual artworks that lack of a tangible object; (ii) reminds us of the importance of social norms and eventually of consuetudinary practices which may seldom be more effective in resolving legal issues than law itself; (iii) and that challenges the idea that we currently handle of private property, given the recent development of new technologies for fixing a copyrightable work, and attending the public’s current needs who no longer wishes to possess objects, rather to access temporarily to certain specific goods and services (e-books, kindle documents, music available on a cloud, etc.).