Performance Art: The legal issues behind the ownership of ‘invisible’ art

11th November 2020

For centuries people have owned, collected and exhibited material artwork: from paintings and sculptures to film and photography. However, the re-emergence of performance art – inherently immaterial and ephemeral – poses a number of distinct legal issues around ownership, protection and authorship.

What exactly is performance art? The Tate defines it as ‘artworks that are created through actions performed by the artist or other participants, which may be live or recorded, spontaneous or scripted’. Each piece may combine and merge various artistic disciplines to form its own unique performance. As such, not only does this art form transcend traditional artistic boundaries, but it also challenges the traditional legal categorisations of what amounts to artistic ‘work’ that is protected by law. Contract and intellectual property law do, however, offer performance artists some protection.

By way of contract, either written or oral, the performance artist can outline a set of specific instructions and restrictions related to the performance work in exchange for an agreed fee. The terms of the contract can be tailored to the artist’s unique and specific vision. They may grant rights to re-perform their work, for example, or restrict the transfer of ownership to a sole collector (as a party to the contract). Tino Sehgal, for instance, insists on the use of oral contracts. In 2008, the New York Museum of Modern Art (MOMA) purchased his performance-related artwork ‘Kiss’ through an oral contract that was made in the presence of a notary. No documentation was produced in relation to the acquisition, presentation, or installation of his intangible work, yet MOMA acquired the right contractually to re-produce the performance in perpetuity.

In the UK, artists can look to the Copyright, Design and Patents Act 1988 (the Act) for protection provided their works can satisfy the Act’s requirements. The Act sets out categories of original ‘works’ protected by copyright: these are literary, dramatic, musical works, sound recordings, films, broadcasts or typographical arrangement of published editions. To warrant copyright protection, however, such ‘works’ must be fixed in a tangible medium of expression (written or recorded). As such, although performance art is inherently elusive and immaterial, it may be protected by copyright – in part or in whole – through recording by film, writing, or otherwise. If an artist can demonstrate he/she owns the copyright in a work, the artist will have exclusive rights over certain uses of that work. These rights fall into two categories: economic rights and moral rights.

Performance art is typically categorised with ‘dramatic works’ as defined under the Act, which, as per Norowzian v Arks Ltd (1999) includes a ‘work of action, with or without music, capable of being performed’. Whilst this evidently covers scripted or choreographed performances, it is not clear whether performance works which are reliant on the spontaneous and unpredictable reactions of visitor-participants are capable of being protected. As such, unless there is a sufficiently detailed record of the performance to present a coherent performance artwork, it is arguable whether the entire performance will be protected under that category.

To the extent that the work is capable of protection, a copyrighted performance will benefit from copyright protection for a certain duration, depending on the format through which it has been ‘fixed’. Original literary, dramatic, musical or artistic works, as well as film, will be protected for 70 years from the author/creator’s death. By contrast, sound or musical recordings will be protected for 70 years from when the work is first made available to the public.

The Act only protects elements of a work which are original, and not an author’s underlying concept. Here, we might consider Roman Ondak’s 2003 ‘Good Feelings in Good Times’ – where an artificial queue was formed as part of an exhibition and created in or around that exhibition space. Ondak would struggle to claim protection under the Act, as the concept of artificial queue formation is unlikely to satisfy the originality requirement.

Economic rights provide the artist with the right to make commercial gain from the exploitation of his/her works. This would typically be by licensing to another to use the work or by selling the rights. A copyright work often means more than just the economic value that it can generate from exploitation. Artists will have spent a lot of time creating and developing their ideas into ‘life’. The Act recognises this and protects copyright work in a way that is different to traditional forms of property. Notably, ‘moral rights’ give artists the right to be: (i) identified as the author of their work (ii) to object to derogatory treatment, such as alterations to their work damaging their reputation and (iii) the right to object to false attribution – i.e. the right not to be named as the author of an art work the artist did not create. Unlike economic rights, moral rights cannot be sold or transferred. However, an artist can waive these rights.

Similar to the rights granted to authors by way of copyright, performers’ rights are another form of intellectual property law protection available to performance artists. These rights prevent the audio-visual recording of a performer’s activities without their prior written consent. Performer’s rights last for 50 years from the year in which the performance occurred. Upon release, the performer obtains a further protection of 50 years (for non-audio recordings) or 70 years (for audio recordings). This right only protects a recording of the performance, however, and not the performance work itself, i.e. the right to re-perform.

A final consideration is the blurring of the conventional notion of authorship that is common in performance art. The lack of fixation makes authorship of a work more difficult to prove. Of course, when the artist is present or involved at the time of the performance it is difficult to contest authorship. However, performance artists often conceptualise their work but remain absent from the performance itself. Additionally, performance art often involves members of the public. In Marina Abramovic’s 2010 MOMA exhibition ‘The Artist is present’, for example, the artist invited members of the public to sit across from her in silence for an undefined period of time. The question arises as to whether the participants become co-authors or whether the performance is renewed each time a new participant takes part in the performance. Proving authorship of performance art is therefore inherently complex, and often reliant on the good faith of industry actors. Whilst lesser-known artists may be more vulnerable than their high-profile counterparts in this regard, neither is immune from risk. Particularly in the absence of tangible documentation of their performance, plagiarism and recognition issues can easily arise.

Thus, whilst contract law and intellectual property law provide some limited protections to performance artists, it is evident that the existing legal categorisations need to be expanded upon or reformed if they are to grant sufficient protections to performance artists and to reflect the dematerialisation of contemporary art. The increasing popularity of performance art compels us to reconsider our approach to art ownership and to expand our definition of what is understood by ‘art’.

This article was written by Razwana Akram (Partner and a member of the Delfina Foundation’s Strategic Advisory Panel) and Elinor Gibson (Paralegal)