A Case for Law as an Artistic Medium

By Caroline I. Keegan*

The contemporary art industry and the legal community differ notably in their conceptions of art. The two worlds do not agree on what art is, a disagreement that causes some artwork to have no legal protections, while giving a legal pass to other artists to create works the art world may wish would be disbanded. At the intersection of art and law, artists find inspiration and new ways to express themselves using law as their tool.

The legal world’s conception of “visual art” is spelled out by the U.S. Copyright Act and is both a traditionalist and reductionist take on the subject:

A “work of visual art” is—

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.;…

Moreover, copyright protection extends to a narrower subset, “original works of authorship fixed in any tangible medium of expression…” This reductionist idea of art was not invented by the courts; it is reflective of a very traditional view of art and authorship.

Many artists find this legal definition of art, embodied in U.S. copyright law, problematic. In response, there exists works that challenge that conception. Some of these artists have incorporated legal discourse surrounding their work into the medium. Other artists use carve- outs in the law to receive legal “permission” to create their controversial works. Others have exhibited literal legal documents as artwork. Following is select examples of artworks created with law as the material.

Law Provides a Platform for Artworks

Certain artists use law in their works as a platform to question traditional views of authorship and originality also expressed in copyright law. In the 1960’s, normative definitions of art began to crumble and artists began to re-interpret the essence of art. Then and now, appropriation artists would copy the visual aspects of a preexisting work to express ideas about ownership and authorship or, in the case of parody, often about the prior work specifically.  Many of these works, arguably intentionally, found their way into court, forcing viewers to give affirmative opinions as to whether they constituted art.

Art historian Arthur Danto presents an excellent example of this idea; a dancer performs a dance move that mirrors someone ironing a skirt. What happens is that ironing a skirt is what the dancer’s movements mean, that is what is embodied in the movements. This is not the case when someone irons a skirt, the action of ironing a skirt is performed to free a skirt of wrinkles and that is not what the dancer did. The dance piece, although entirely imitative, is an independent piece of artwork (aesthetic or intrinsic quality irrelevant).

Many appropriation artists use judicial structure as their one of their artistic mediums. At the forefront of this is Richard Prince. After being party to a number of law suits, think Canal Zone series, and having well-known art law counsel, it is fair to assume Prince is well aware of the legal line his work pushes (and occasionally crosses). Reaching record numbers at auction, it is also safe to assume Prince is able to afford licensing agreements to avoid such litigation. It appears artists like Prince knowingly invite the law into their studios, embracing it as part of the process and a crucial layer to the pieces. Years after Prince’s first copyright dispute in a courtroom setting, in 2015, Prince added comments to other people’s Instagram posts, took screenshots of the photos with his comments underneath, enlarged them, and sold them for hundreds of thousands of dollars.

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Richard Prince,“New Portraits” (2015)

Patent attorney, John Arsenault, has already looked over the potential legal issues explained: “although it looks like a case of outright plagiarism, [it] might be a little more complex if it were argued in a legal context. When I first saw it, I thought it was cut and dry, but then I looked again and saw what was captured specifically, and the commentary under it, then it creates a question. A silly question, especially given that he has sold these for money, but there you go.” This “question” Arsenault is referring to is the crux of Prince’s work, and the reason the law plays such an important role in forcing answers. The question here is, of course, what constitutes originality and who is an author.

Kenneth Goldsmith, a poet and conceptual artist, is likewise completely engaged in the question of authorship and originality. Goldsmith’s poetry is a decree against copyright, the legal boundaries placed on appropriation, and the judicial view of “originality.” He prefaces his work by declaring that he has no restrictions on his work, he celebrates the copying and sharing of his poetry. Goldsmith highlights that restriction on the dissemination of work harms the longevity of its existence, and advocates for greater access and sharing of artistic ideas than the law allows. Goldsmith posted a link on his own Facebook to a copy of one of his poetry books that had been translated into Spanish and shared online; he commented “Lovely to see my book pirated in Spanish. #freeculture.” Goldsmith’s works are described as better thought about than read as the base of his poetry is directly copied from various unauthorized sources, often creating absolutely mundane and simultaneously provocative art. For instance, one piece that received much attention was “Printing out the Internet” where Goldsmith asked his online audience to print out pages from the internet and send them to a specific gallery. Goldsmith puts it, “context is the new content.”

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Kenneth Goldsmith, “Printing out the Internet” (2013)

Utilizing a legal platform as a medium to re-negotiate an existing piece of work provokes established categories. These artists portend the end of traditional (and legal) views of art by rejecting the crux of it: originality, ownership, and authenticity.

When Law Protects Creation

In some instances, laws protect artists that create work objectionable in the art world, for example, because other artist’s works are mocked in the process. We know these works as parody. The law addresses parodic works in the Fair Use doctrine, section 107 of the Copyright Act, which reads: “the fair use of a copyrighted work, including such use by reproduction in…for purposes such as criticism, comment…is not an infringement of copyright.” This is accompanied by a four factor test to determining if a work falls into this caveat.

Jeff Koons is often seen as a seminal example of an artist who is well aware of how the law will play a role in his parodic art. Koons now employs lawyers before, during, and after the creation of his works to evaluate the legality of each step of his process, allowing him to incorporate the judicial system into his process. Koons argued in his affidavit in Rogers v. Koons, a case in which another artist accused Koons of copyright infringment, that “my paintings are not about objects or images that I might invent, but rather about how we relate to things that we actually experience…Therefore, in order to make statements about contemporary society and in order for the artwork to be valid, I must use images from the real world. I must present real things that are actually in our mass consciousness”. Koons has a necessity of referencing existing material to create his work, and he is able to use the law to protect such work.

Nathan Fielder, writer and comedian, likewise utilizes the law in his work for parodic effect. Fielder uses legal loopholes as the essence of his work. His most momentous piece that exemplifies law-as-medium is “Dumb Starbucks”. Through the first part of Fielder’s video piece he speaks to a lawyer about parody law, and begins working on an art piece that would mimic an entire Starbucks store, placing “dumb” in front of every drink title, logo, and retail item in the mock store. Despite the inherent risk in appropriating existing art works, artists such as Fielder and Koons educate themselves on the judicial issues of their work and the evidence suggests they embrace them as part of their work.  

Law to Subvert

In a 2017 video piece, “Shipping Logistics Company,” Fielder attempts to avoid import tax law concerning smoke detectors by labeling smoke detectors as tax-exempt musical instruments. In an elaborate scheme, Fielder creates a band with a member playing the smoke detector, achieves notoriety for the band by developing a news-worthy fake controversy with the oil company Shell, and rebrands smoke detectors with new packaging and videos on how to play them as an instrument. Fielder talks specifically about his utilization of the law in his work in an interview. He explains his work is about “finding a loophole that’s technically legal but one step ahead of anything anyone else has thought about.” Fielder uses the legality of his work as a stage to highlight a larger social problem, as art often does. Fielder laments that people often find any legal loophole to make money, regardless of any moral or ethical issue that comes along with it, if a scheme is legal and makes money, it will be exploited. With law as the medium, Fielder’s works do just that, challenging viewers to question his actions and engage in a critical discourse about the work.

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Seth Siegelaub and Robert Projansky “Artist’s Contract” (1971)

Seth Siegelaub, art dealer and curator,  utilized law as a medium in his work “Artist’s Reserved Rights Transfer and Sale Agreement,” otherwise known as the “Artist’s Contract,” was drafted in 1971 by Siegelaub and lawyer Robert Projansky.

Cameron Rowland likewise has a contract based work titled “Disgorgement” (2016). The Museum of Modern Art’s website lists the medium for the piece as “Reparations Purpose Trust, Aetna Shares.” The trust purchased 90 actual shares in the insurance company Aetna, which had formerly issued life insurance policies on slaves to owners of slaves. The piece is symbolic for emphasizing the continuous impact of slavery on the United States. Rowland’s actual framed work that exists on the wall is simply the contract for such shares, while the shares, as they exist beyond the framed work, are serve as actual restitution to the families of former slaves. 

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Cameron Rowland, “Disgorgement” (2016).

In this way the work exists far beyond the relationship between the work on the wall, and the viewer, which Art in America dub “socially illuminating value.”

Carey Young’s works Declared Void and Declared Void II are in essence large scale interactive vinyl contractual agreements posted on walls. Declared Void states

BY ENTERING THE ZONE CREATED BY THIS DRAWING, AND FOR THE PERIOD YOU REMAIN THERE, YOU DECLARE AND AGREE THAT THE US CONSTITUTION WILL NOT APPLY TO YOU.

Accompanying the text, is a marked off area. Likewise, Declared Void II states

BY ENTERING THE ZONE CREATED BY THIS DRAWING, AND FOR THE PERIOD YOU REMAIN THERE, YOU DECLARE AND AGREE THAT YOU ARE A CITIZEN OF THE UNITED STATES OF AMERICA.

Young explores the monolithic power of the legal system through these artworks. The works were displayed in a show titled “Legal Fictions,” a title which truly gets to the heart of the pieces. The text is drafted in legalese, and gives the impression that it is true and enforceable, yet, of course, stepping into the zones ascribed to the texts absolutely does not result in the proposed outcomes. The statements and associated acts are legal fictions which simply invite the viewer to interact with the idea of how law moderates your life and identity.

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Taryn Simon, “Memorandum of Understanding between the Royal Government of Cambodia and the Government of Australia Relating to the Settlement of Refugees in Cambodia. Ministry of Interior, Phnom Penh, Cambodia, September 26, 2014”

Taryn Simon’s 2015 exhibition Paperwork and the Will of Capital presented itself as a group of archival-style photo and sculpture works that documented agreement meetings in international juridical history. For the series, Simon recreated bouquets present on the tables where world leaders were brokering deals. She then photographed the bouquets, and paired them with text summarizing the legal element and archiving the species of plant. By pairing the legal texts with visual element, the work did not simply record pivotal moments but through archival methodology, effectively reacted to it and highlighted the artifice of both the bouquets as a stand in for the natural and the meetings respectively. The legal text, incorporated as a medium in the works, pair with the soft flowers to give meaningful context to the images.

 

Conclusion

Artists use law as an artistic medium by taking advantage of the platform a court room can offer a work, utilizing the protections the law affords them, and embracing the creative potential of legal documents to formulate works that have tangible consequence beyond a museum wall. Using law as an artistic medium in producing artwork is not new or rare, however the law’s centricity to these artistic projects is often treated as subordinate to the greater artistic idea. The above examples establish the trend of artists recognizing the capacity for law to be artistic, or inspiring. To conclude with a thought (and Andy Warhol parody) by a law school professor: “Working in law is art, making law is art, and good law is the best art.”

*About the Author: Caroline I. Keegan received her Juris Doctor Degree at Fordham University School of Law, and holds a Bachelor of Arts in History and Criticism of Art. Caroline was a Fellow in the Art & Law Program, the Center for Art Law, and the Research Center for Arts & Culture. Caroline previously worked at the Museum of Modern Art, the Metropolitan Museum of Art, the Brooklyn Museum of Art, Volunteer Lawyers for the Arts and, most recently, the legal department of the Calder Foundation. Caroline currently works on art and corporate matters at Kurzman Eisenberg Corbin & Lever, LLP.

Interns in the Arts

By Lesley Sotolongo

Internships have become increasingly important not only in academic curriculums, but also for any jobseeker wanting to gain work experience to boost his or her resume. It is both an avenue of recruitment and a source of human capital for employers. However, interns are often unpaid and only receive academic credit for their work. While these positions have been traditionally perceived as offering students with opportunities and professional experiences, there has recently been a boom in the amount of lawsuits being brought forth by interns against their former employers arguing that they should be compensated for their work. In fact, one intern’s victory has fueled a class action and student protests against their university’s internship guidelines, demanding pay. For example, students at New York University (NYU) expressed their concerns about being offered only unpaid for-profit internships, and as a result NYU’s Wasserman Center for Career Development issued a statement that going forward the opportunities posted to its jobs board would comply with New York Wage and Labor laws, further details of which are described below. With funding coming mostly from programming or grants, arts organizations may find it tempting to rely on interns to perform some of its key logistical functions. However, in the wake of the recent controversy, employers are on notice to familiarize themselves with both federal and state wage laws.

As a result of the issue gaining national recognition, the Department of Labor in 2010 issued guidelines employers should follow to comply with FLSA, which states that unpaid internships are legal only in stringently outlined educational settings.

The six criteria are:

  1. the internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment
  2. the internship experience is for the benefit of the intern
  3. the intern does not displace regular employees, but works under close supervision of existing staff
  4. the employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded
  5. the intern is not necessarily entitled to a job at the conclusion of the internship, and
  6. the employer and intern understand that the intern is not entitled to wages for the time spent in the internship program.

In 2011, a group of unpaid interns brought a class action against Fox Searchlight under the Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), and California Unfair Competition Law (“CAUCL”), alleging that defendants violated federal and state labor laws by classifying them as unpaid interns instead of paid employees. Specifically, the FLSA mandates that individuals who are employed must be compensated for the services they perform. In Glatt v Fox Searchlight Pictures Inc., Judge William H. Pauley III sitting in the Southern District of New York ruled that interns were employees covered by FLSA and NYLL. Therefore, Fox Searchlight Pictures was considered to have violated federal and state minimum wage laws by not paying the interns. This case is controversial as its ruling has an impact on how employers manage its unpaid internship programs. Additionally, Judge Pauley III stated that whether the student was receiving academic credit was not important in determining whether interns should be paid. Instead, he called for employers to follow the U.S. Department of Labor’s criteria for unpaid internships.

The U.S. Department of Labor’s guideline is based on the 1947 United States Supreme Court opinion in Walling v. Portland Terminal Co., 330 U.S. 148, 152-53 (1947), which held that the FLSA’s definition of “to employ” as “to suffer or permit to work” does not include student participation in an educational or vocational training program, so long as the employer derives no benefit from the trainees’ work. Almost seventy years ago, the Court cautioned against arrangements “in which an employer has evasively accepted the services of beginners at pay less than the legal minimum.”

Furthermore, understanding these guidelines is crucial for avoiding the increasing amount of lawsuits that have sprung in the wake of Glatt v. Fox Searchlight. However, it is important to note that the FLSA applies to only “for-profit” private sector employers. Non-profit organizations and arts organizations in particular – often strapped for cash and operating on tight budgets – are not included in this law as long as all applicable non-profit incorporation requirements are met.

Moreover, non-profits are subject to state laws that may affect interns. For example, it is possible for non-profit organizations and institutions to have unpaid internships in New York if certain criteria for minimum wage laws are met for interns who are not in an ‘employment relationship’. The criterion for this situation in New York State set out in the is that Students working in a not-for-profit organization are exempt from the State Minimum Wage Act and the Minimum Wage Order for Miscellaneous Industries, so long as the organization is (1) organized and operated exclusively for charitable, educational, religious (2) they attend an institution of learning with courses leading to a degree, certificate or diploma (3) they are completing residence requirements for a degree such as those required of medical and pharmaceutical students and (4) the work experience need not fulfill a curriculum requirement or even relate to the student’s field of study.

Furthermore, the National Council of Nonprofits advises that it’s important to clarify whether interns are ‘unpaid volunteers’ or ‘paid employees’. If a non-profit considers its interns ‘volunteers’ but pays them a ‘stipend,’ there could be unintended negative consequences. Both the FLSA and state wage and hour laws define what constitutes a volunteer. The stipend may trigger the Department of Labor to conclude the intern is an employee, creating the risk that the non-profit could owe back wages (at least minimum wage) and back taxes. On the other hand, if the non-profit is following state wage regulations closely, it may be appropriate to treat the intern as a “trainee”, relieving the non-profit of paying minimum wage, but raising the need to document carefully how the internship primarily benefits the intern and not the non-profit.

In sum, a key takeaway from the fact sheet and cases like Glatt v Fox Searchlight Pictures Inc., is that employers who intend to hire students, should ensure that the internship not only complies with the law, but that the internship also assures that they receive educational benefits other than the usual résumé boost, job reference, and a mere understanding of how the business works. Nevertheless, it is clear that whether for-profit or not, if an employer hires an intern, the employer must make sure that the intern is receiving beneficial training. If and when in doubt about taking interns and assigning them tasks, employers should consult with counsel to ensure compliance with federal and local laws.

Sources:

Steven Greenhouse, Judge Rules That Movie Studio Should Have Been Paying Interns, available at, http://www.nytimes.com/2013/06/12/business/judge-rules-for-interns-who-sued-fox-searchlight.html?_r=0

Glatt v. Fox Searchlight Pictures Inc., 293 F.R.D. 516 (S.D.N.Y. 2013) on reconsideration in part, 11 CIV. 6784 WHP, 2013 WL 4834428 (S.D.N.Y. Aug. 26, 2013) and motion to certify appeal granted, 11 CIV. 6784 WHP, 2013 WL 5405696 (S.D.N.Y. Sept. 17, 2013).

Christopher Zara, NYU Wasserman Center Bends On Unpaid Internship Guidelines, But Is It Bending Far Enough?, available at, http://www.ibtimes.com/nyu-wasserman-center-bends-unpaid-internship-guidelines-it-bending-far-enough-1555016

U.S. Department of Labor

NY Labor Standards Fact Sheet

Christopher Zara, Are All Unpaid Internships Illegal? Labor Lawyers Explain How Businesses Can Avoid Lawsuits, available at, http://www.ibtimes.com/are-all-unpaid-internships-illegal-labor-lawyers-explain-how-businesses-can-avoid-lawsuits-1352583

Image source:

WikiMedia

About the Author: Lesley Sotolongo, is a third year law student at Benjamin N. Cardozo School of Law. She may be reached at Lesley.Sotolongo@law.cardozo.yu.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.