The rare case when the title fully speaks for itself: legal aspects around Performance art
Mediator, Business Writer, Trademark and Patent Attorney
Ephemeral and person-dependent:
legal aspects around Performance art
When someone buys a painting or a sculpture s/he most of the times gets an actual possession of an actual object. However, when it comes to performance art, is there a way how to ever own it? Even more so, provided that copyright protects original ideas fixed in a tangible form, is performance art even protectable at all?
To begin with, what is performance art?
As ArtQuest defines it: “Performance-related art encompasses an array of open-ended artistic actions/practices which defy established legal categorization and border on many disciplines and practices, including dance, film, theatre, and installation”.
It is rightly pointed that there is no coherent cultural, nor legal definition of performance art, to the point of concluding that virtually any creative action (or inaction) of an artist can be qualified as a performance. Performance might have a script or not; it can be planned and orchestrated or contrarily, be (or seem) spontaneous; likewise, performance can be live, include an audience, or be done via media and even without the participation of neither audience nor even an artist him/herself. Finally, performance art is not the same as performing arts. Performance art is a type of performing arts (other performing arts include theater, music, dance, etc.).
All of the above ambiguity causes an array of questions when it comes to:
2. ownership and ultimately
3. protection of performance art.
Most copyright laws give rise to the authorship claim from the moment of public communication of an artwork. Thus, theoretically, at the moment of performance, the authorship of that performance is established. Yet, proof of authorship is a completely different story. In case there is some sort of fixation of that performance (using video recording, for example) that should be helpful for the proof of authorship. The problem is that not every performance gets fixated, or is fixated completely.
Likewise, performance art is perhaps the most person-dependent art in the sense that the direct involvement of an artist makes every instance unique. Take for example Marina Abramovic and her famous performance “The Artist is Present” (2010), when she was sitting on a chair in the Museum of Modern Art in New York and there was an empty chair in front of her for visitors to come, sit down and look into the eyes of the artist. The author of that piece is Marina Abramovic. However, as said before, performance art is very person-dependent. If anyone else would decide to sit on a chair in a museum and look into the eyes of visitors, that would still be a different performance with a different author. It would, of course, be a matter of good faith and an artist’s reputation to mention that the new piece is inspired by the original performance of Marina Abramovic. Still, the new piece would have the new authorship.
In case of ownership, it is once again rather complicated. Using an example of the same artist — Marina Abramovic — there was another famous performance piece she made together with Ulay — “Rest Energy” (1980). In that piece, she is holding a bow, while Ulay is holding an arrow pointing at her heart, and both of them are slightly reclining backward away from each other. The 4-minute record is in the Netherland’s Media Art Institute’s collection, but the stills are also in other museum collections, e.g. in the MHKA in Antwerp. The question is what exactly do the collections own? Do they own the performance? Or do they own just what I mentioned: memorabilia of performance, thus a recording and photos? While there is no precise legal determination, I would contend that it is (and can be) only the latter: videos, photos, or any other form of…recorded memory…
The logical question would be whether there is any way how one can own the actual performance piece. To reply to that I would like to provide some examples of performance artists and their approaches to selling their performance art.
First of all, La Ribot. You can buy a performance piece by this distinguished Spanish performer for about EUR 670. What one gets for this sum is the right to be credited as a “Distinguished proprietor” and free access to the performance piece. Additionally, La Ribot allows selling the “Distinguished piece” (as she calls it) with an add-on that she does not mind, but also does not want to participate “in the whole market thing” either. In the beginning, she used to give a video recording of the performance to the buyer, but dropped that idea as being “very domestic”. To stress, that the “Distinguished proprietor” has no say when it comes to the content of the performance nor the way or place of it. Thus, it all boils down to being credited and admitted to seeing it for free if performed again.
Another example of a contractual relationship around buying a piece of performance art would be the approach of Tino Seghal. His performance pieces, or “constructed situations” as he calls them, are not allowed to be photographed or filmed, nor there is any documentation around the sale of his work. Yet, it gets sold. Here again, it is technically not the performance piece that is the object of the deal, but the right to stage the performance, which on top of that comes with… obligations to preserve it. In respect of the latter, Seghal’s piece entitled “This You” (2006) acquired by the Hirshhorn Museum and Sculpture Garden (part of the Smithsonian Institution) involved an obligation to assign three staff members to become stewards of the work. Reciting conditions, shaking hands and transferring money to the account of the artist. As simple as that.
Therefore, performance art can generate money for the performance artist. I refrain from saying that performance art can be bought or sold, as in fact, it is always something else that a buyer is buying. Be it the right of being credited, or the right to stage or recordings of the performance. Performance art itself remains too ephemeral to be owned in our classic understanding of ownership. In essence, the relationship established resembles that of patronage or sponsorship which has a long history in the realm of arts.
Given that the authors of performance art pieces are usually also the actual performers of the works, one way of protection could be via the performers’ rights. Performers in the definition of the law are “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore (Art. 9 RC, Art 2(a) The WIPO Performances and Phonograms Treaty, 1996). Performers’ rights are the so-called “related rights”, which are rights separate from copyright and moral rights in artworks.
Performers’ rights are rights which originate after the recording of live performances became possible. There are two aspects to those rights. Firstly, the property aspect, which means rights in authorized copies of performances — reproduction, distribution and rental and lending rights. Secondly, the non-property aspect of performers’ rights, which means the right to allow or disallow the actual recording (the right to consent to the recording and the right to consent to the use of the recording). Performers’ rights last for 50 years from the end of the year in which the performance took place. The main problem here is that performers’ rights are limited and as mentioned already they are “related rights”. In other words, one cannot get the full scope of protection comparable to that of copyright protection e.g. granted to a painter for a painting.
To note that the protection question for performance art is complicated in the context of copyright laws. Copyright, as stated at the beginning of this article, protects “original ideas fixed in a tangible form”. The “fixed” and “tangible” seem not to be applicable for performance art, hence also copyright protection for it is not so straightforward. Whether enactment as such can be regarded as a tangible form is a highly disputable statement, which lacks solid case law to prove or disapprove. Even that consideration aside, copyright is tricky in a sense of the scope of protection, which includes only the original elements and not the ideas themselves. In practice, that means that a slight alteration of a performance might be enough to avoid the claim of infringement (if any).
Provided the above, it seems that the classic contractual protection is an important means of protection of performance artists’ rights; with respect at least to the buyers and other stakeholders where contracts can be signed. Of course, when it comes to protection vis-a-vis third parties, contract law cannot be relied upon (if only as a means of a proof of authorship in the copyright claims).
As a concluding note, performance art, as said before, is ephemeral, person-dependent and difficult to fit into the existing legal frame. At the same time, it also encourages to rethink the whole concept of art ownership and the attitude towards creation. Is it a utopia to believe that respect and support would prevail where no precise legal guidelines exist? Perhaps. At least performance artists prove that this different worldview is possible.
As a Postscriptum —a small reminder on the terms:
— performance art — that’s what e.g. Marina Abramovic, or LaRibot or Tino Seghal do;
— performing arts — that’s all various kinds of performances: theatre, ballet,… but also performance art;
— performers — are the ones executing performing arts’ pieces, thus actors, ballerinas, singers,… but could also be performance artists;
— performance artists — are performers, who are also the authors of performance art pieces.
 Some more on La Ribot here: http://totaltheatre.org.uk/archive/features/art-sale
 Some more on Tino Seghal here: https://www.nytimes.com/2018/11/08/t-magazine/tino-sehgal-hirshhorn-museum-art.html
 Other relevant international treaties include The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) and Beijing Treaty on Audiovisual Performances (2012)
 there is a nuance about the sound recordings, as they are generally protected for 70 years from the end of the calendar year of release.