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The Difficulties of Protecting Performance Art

(Note: This post is about Performance Art and not about the Performing Arts.)

It has been relatively clear for many years now that the law is not always entirely aware of ground realities, and that copyright law, in particular, may be estranged from the requirements of artists whom it ostensibly seeks to protect. What has also become increasingly clear is that the law is itself extremely ambiguous; statutes such as the Copyright Act, 1957, tend to be minimalist and they do not include provisions which relate to all the visible manifestations of art.

Among those forms of art which are virtually estranged from copyright law is ‘performance art’. Although ‘performance art’ is similar to the performing arts such as juggling and fire-breathing, it resides in no man’s land. Wikipedia explains what performance art is by stating that it ‘refers largely to a performance which is presented to an audience but which does not seek to present a conventional theatrical play or a formal linear narrative, or which alternately does not seek to depict a set of fictitious characters in formal scripted interactions. It therefore will often include some form of action or spoken word which is a form of direct communication between the artist and audience, rather than a script written beforehand’.

The result of not necessarily being based on a tangible script written beforehand means that performance art may be spontaneous, and that it could well be based on an idea. As such, performance art raises two problems.

Firstly, it does not neatly fit in any of the classes of works contemplated by the Copyright Act. The type of protectable work which performance art is probably most closely related to is a dramatic work. Under Indian law, a ‘dramatic work’ is defined in Section 2(h) of the Copyright Act as being inclusive of ‘any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film’. As such, it would appear that a dramatic work must necessarily be a work which is ‘fixed’ in some manner. Fixation not being a necessity for performance art though, it becomes a challenge to treat all forms of performance art as copyrightable works with reference to the definition of dramatic works in Section 2(h).

In fact, the protection of a performance often involves not the composite performance itself being protected as a coherent whole but the fragmented performance being protected as the sum of its underlying works. For example, if the script of an opera were to be written, it would be protectable under the Copyright Act, and it would be the exclusive right of its owner to communicate it to the public or to perform it in public. As such, it would be impossible for a third person to perform it in public without the permission of the owner of the script not necessarily because the performance of the script would have been protected but simply because of the protection accorded to the underlying script.

However, performance art may not have any such analogous protectable underlying work. And the lack of such an analogous protectable underlying work coupled to the fact that performance art is often centred around an idea, could prevent it from lending itself to being protected by copyright law.

Secondly, the protection of performance art by copyright law may require the protection of not just the fixed expression of an idea (such as an underlying script) but the protection of the underlying idea itself as there may not be a protectable underlying work. In such a case, it would be the performance of the idea, and not the fixation of the idea's expression which comprised performance art. Considering that one of the cardinal principles of copyright law is that it protects expressions of ideas, and not ideas in themselves, it is extremely unclear how easy it would be to protect performance art.

Considering that copyright law appears to be becoming more and more comfortable with protecting ideas, it is possible that protecting performance art through copyright law will not be an uphill task in the future.

However, in the meantime, it is pertinent to note that the lack of formal copyright protection being accorded to performance art has not really diminished its commercial value. As Gareth Harris of the Financial Times reported in October 2010, 'at some point the focus of acquiring performance art switched from owning objects associated with the actions, such as videos and photographs, to possessing the “idea” behind the piece'. Harris described the sale of performance art by Berlin-based artist Tino Sehgal, stating: "He sells his performance art pieces by means of verbal transactions in the presence of a lawyer with no written contract. Instructions on how to re-enact his works are delivered literally by word-of-mouth, with collectors under strict orders never to photograph or video his “constructed situations”. Yet they sell in editions of four to six for $85,000 to $145,000 each, according to The Art Newspaper."

Sehgal has probably, as Harris pointed out, turned notions of what "collecting" means upside down. That is not debatable. What is also not debatable is that performance art creates several dilemmas from a copyright perspective.

Performance art may not be copyrightable itself. It may, for its protection, have to rely on the laws relating to subjects such as contractual relations, privacy and confidentiality. It may also, nonetheless, find itself subject to arguments made in relation to copyright law or, at any rate, to the fair use doctrine of copyright law. For example, a third party could argue that photographing performance art for the purpose of documentation or reporting falls under the scope of the fair use doctrine. Although this presumes that performance art is copyrightable in the first place, it is unlikely that a photographer, journalist, historian, biographer or other person who chooses to make the argument would highlight the possible non-copyrightability of performance art.

The documentation of performance art by third parties without the permission of the artist could undoubtedly fall foul of contractual restrictions (possibly between the artist and his audience) although, pertinently, contractual restrictions do not operate in rem so a third party's failure to adhere to them would be irrelevant. And while copyright law could be used to legitimise the documentation of performance art (if one were to stretch one's imagination a little), it is clear that copyright law would have to compete with the laws related to privacy and confidentiality for supremacy in such circumstances. There is absolutely no clarity on which would supersede the other.

Leaving aside the issue of the legitimacy of photographs and other documentation, it is even more unclear if photographs of performance art may be further communicated to the public by a fourth party without proper authorisation. In a landmark decision, a German court in Düsseldorf held that they could not. In this case, the court ruled that  a museum did not have the right to display photographs taken by Manfred Tischer of a 1964 performance by Joseph Beuys entitled “The Silence of Marcel Duchamp is Overrated” without the permission of Beuys' estate. However, the museum said that it would appeal.

It appears that there is a long road ahead to be travelled before the legal position of either photographs of “The Silence of Marcel Duchamp is Overrated” in particular, or performance art in general, is clear.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

Also see: Performance Art on Trial; October 25, 2010; Cardozo Art Law Society