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AFB Artworld Roundtable: Animal Rights & Art

The Headlines


Will Italy Back Down on Hermann Nitsch Show?


Italian animal rights activists have launched an online petition to stop a Nitsch performance, slated to kick off in Palermo on July 10, and continue throughout the summer until September 20…

The full story can be found here.


Animal Rights Activists Protest Untitled (12 Horses) 

Animal activists turned up at Gavin Brown’s West Greenwich Village gallery space in New York to protest the showstopping final exhibit there before the gallery moves uptown to Harlem. The work in question is Jannis Kounellis’s Arte Povera masterpiece, 12 Horses, which debuted in Rome in 1969. The installation features 12 horses tethered to the wall, eating hay, on a rubberized floor…

The full story can be found here.

The Roundtable
Cynthia Freeland, Anthony Cross, Ross Cameron, John Rapko

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Cynthia Freeland: Complaints about contemporary art that uses animals are not new. Apart from the artists mentioned here, Jannis Kounellis and Hermann Nitsch, we could also discuss Damien Hirst’s various animal-in-tank exhibits ranging from the notorious shark to a lamb, pigs, and sliced-in-half mother cow and calf; Marco Evaristii’s “Helena” which presented live goldfish in blenders including one that was pulverized, resulting in animal cruelty charges; Guillermo Vargas’s display of an allegedly starving dog in a gallery in Nicaragua; and Ann Hamilton’s Privation and Excess, which included three live sheep as well as thousands of pennies coated in what must have been gallons of honey. (Vegans would denounce the exploitation of bees as well as sheep in this work.) 
Marco Evaristti, Helena, 2000

Ann Hamilton, Privation and Excess, 1989


Protestors have vigorously campaigned against Eduardo Kac’s transgenic art, particularly his 1990 work “GFP Bunny” which created a bioluminescent green bunny using genes spliced from a jellyfish.


Eduardo Kac, GFP Bunny, 2000


The petition to stop the Nitsch exhibition planned for Palermo cites the UNESCO statement, “A Universal Declaration on Animal Welfare,” which succeeded a prior statement on Animal Rights from 1978 that did not glean enough support to have much international effect. The current statement, drafted in 2000 based on proposals from 1987, has yet to be approved by the UN and thus has no legal standing. The petition cites several principles from the 1978 document allegedly violated by Nitsch’s art, including Article 10, which maintains, “No animal shall be exploited for the amusement of man. Spectacles involving animals are incompatible with their dignity.” However, granting that the work is art would presumably rule out its being “mere” entertainment.  The second point might seem more relevant, but Nitsch uses only dead animals and parts obtained from butchers. On this the petition cites another principle, Article 13, which maintains that, “Dead animals shall be treated with respect.” But of course for Nitsch and his followers, the rituals he creates and they participate in are deeply momentous, making it hard to establish the claim that the animal viscera are not being treated with respect.

Of the other cases I listed, the recreated Kounellis piece seems least troubling. The horses have plenty of hay, a rubber floor, and attentive grooms. The need to sleep lying down seems to have more to do with a horse’s preference than with attaining REM sleep. Indeed, horses are tethered in stalls all over the world and do lie down to sleep there if they want to. The more serious concern would be for them to get exercise. Some veterinarians would argue that all horses should live in herds, wild and free at best or in paddocks at worst, and that they should not even have shoes but be bare-hoofed. 

Jannis Kounellis, Untitled (12 Horses), 1969/2015

The facts of the Vargas case are impossible to ascertain, as some sources claim that the dog in question died, others that it was fed but still died, others that it did not die. The petitioners signing protests are guilty of hypocrisy unless they become equally exercised about the thousands of dogs euthanized in shelters and pounds in large cities each year across America and elsewhere. Vargas’s intention was, among other things, to draw attention to the multitude of starving dogs on the street right outside the gallery, but this did not stop criticisms—nor even the diagnosis of clinical psychologist Dr. Belisa Vranich, who wrote of him in the HuffPost (without meeting or interviewing him) that “at the least, Vargas has traits of antisocial personality disorder, grandiose and narcissistic personality disorder, and a peppering of delusions.”

The Eduardo Kac transgenic rabbit might seem especially outrageous, but the artist claims that he is only highlighting work done in the sciences every day of a much more extreme and potentially sinister nature. Damien Hirst obtained all of his animals for display in vitrines from knackers, except for the large tiger shark displayed in “The Physical Impossibility of Death in the Mind of Someone Living.” He commissioned both the original shark and its recent replacement to be caught and killed by an Australian fisherman. Sharks are of concern now as endangered by various fishing practices and 100 million of them are killed each year by tuna fishing and also in order to make sharks’-fin soup. One might argue that this particular shark’s death is part then of the larger problem of shark endangerment. But in relation to the scale of the problem, one death seems minor; and on the other hand, this shark has been memorialized in a particularly striking piece of art that forces us to meditate on questions about life and mortality. And so does Hirst’s “Away from the Flock” (1994) — to me a more disturbing work. Again using a vitrine and formeldahyde, it presents a gamboling little lamb that looks beautiful and serene—and yet it is all alone, and very very dead.
Damien Hirst, Away from the Flock, 1994

It is inadequate to view any of these works on their face and pronounce them illegitimate as art because they don’t look like what many viewers expect of art, something pretty like a Monet, or at least something that takes the traditional form of a sculpture or painting, rather than a piece out of a science museum or weird work of performance art.  

Like the Kounellis piece, the works I have mentioned all require, for either appreciation or legitimate criticism, some grasp of the relevant art context and conventions. None of these works comes out of nowhere. Both Nitsch’s work, which typically involves symbolic crucifixions, the transformative use of blood, and enacted rebirths, and Hirst’s vitrines, at least in the lamb piece, draw upon centuries of traditions of western, particularly Christian, art.  

Hermann Nitsch, Crucifixion, 2005

The right artistic precedent for “Away from the Flock” is Francisco de Zurbarán’s magnificent and moving “Agnus Dei” (1635-40), a lamb tied up readied for sacrifice. 

Francisco de Zurbarán, Agus Dei, 1636-40

Neither work is really “about” lambs or sheep, but about the Christian belief in the sacrifice of Jesus for human salvation, the metaphor of Christ as shepherd, etc.

Why do artists use animals in their work? There are many reasons. Animals are important to us. Humans live with animals as parts of nature we inevitably interact with. They are pets, domestic aids, potential food sources, objects of wonder, occasional dangerous predators, and more. But beyond this, animals have acquired a myriad of symbolic resonances in all cultures. They are associated with gods, demons, and angels; they manifest qualities we admire or dislike among our fellow humans, like courage and loyalty, or deviousness and unpredictability. Protesters dedicate their critiques to animals actually used in works. But to my mind some of the most disturbing artworks involve representations of animals, i.e., their depiction rather than their actual presence in art. Goya’s sketches of the cruelty of bullfights are just as horrific as his haunting depictions of the evils of war. 
Francisco Goya, Tauromaquia 35, 1816

Rubens’s huge dynamic hunting scenes present nightmarish visions of boars hunted down while dogs flail nearby after being pierced by their tusks, or of a tiger tearing at the flesh of horses and men while a brave tiger mother tries to protect her cubs. Rubens seemed to render the animals with more character and emotional vividness than the humans in these scenes—despite the fact he had probably never seen most of them in life but only in other images or taxidermy collections. 

Rubens, Tiger, Lion, and Leopard Hunt, 1617
My point? As with the rendering of humans and human atrocities in art, a potent picture of an animal created out of the artist’s imagination might be more disturbing than any literal record or factual use of a live or dead animal. And similarly, it is the expressive or symbolic dimensions of an artwork, rather than its literal components, that render it either politically productive or problematic.
Cynthia Freeland is Professor of Philosophy at the University of Houston http://www.uh.edu/~cfreelan
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Anthony Cross: Let me begin with what I think is a pretty unobjectionable moral principle, namely: we shouldn’t cause suffering unless there is a good enough reason to do so. Something like this principle is in the background of quite a bit of our daily moral decision-making. It’s why we think it’s OK to send kids to the dentist—even if it means certain drilling—and it’s also why we think it’s not OK to shoot a man in Reno just to watch him die.

Of course, humans aren’t the only animals capable of suffering. Cows, pigs, chickens, horses—and yes, probably even lobsters—also have the capacity to suffer. This means that, if we’re to be consistent in our moral reasoning, the same principle should apply to animal suffering as much as it does to human suffering. Two test cases for the principle: Gustatory pleasure likely isn’t a very good reason for factory farming animals, whereas primate testing of human vaccines is maybe OK, because of the possibility of saving countless human lives. So far so good.

This principle also gives us a starting point for thinking about the recent controversies surrounding the restaging of Kounellis’s Untitled (12 Horses) and Herman Nitsch’s show in Palermo, respectively. In particular, it prompts us to ask two questions: first, to what extent does the use of animals as artistic material in each case involve causing suffering on the part of the animals in question? And second, to what extent is there a good reason for causing such suffering? 

Do the horses in Kounellis’s piece suffer? In the piece as it was recently installed in Gavin Brown’s gallery, I suspect that the answer would be: they don’t suffer much. The horses were treated largely as they would be in a comfortable stable. They were provided with ample food, water, a staff of three dedicated grooms, and a rubberized floor for comfort. Granted, the horses were forced to stand tied for the opening hours of the gallery; they couldn’t exercise or lie down at will. In this respect, Kounellis’s piece does seem to involve animal discomfort—albeit no more than might be experienced when tying or transporting a horse normally.

Is there a good enough reason to cause such discomfort? Another way to put this question is to ask what value or values the work might realize through its usage of live animals as artistic materials, and to ask further whether these values outweigh the suffering caused by the piece. Not having seen the piece myself, I’ll defer to Roberta Smith, who writes in the Times: “The horses are just there, standing, eating hay, occasionally snorting and relieving themselves, attended by three grooms. Their accommodation in a space that is recognizably an art gallery foments an especially concentrated encounter with the brute power of art and its ability to transform space…the elemental, curative force of animals and their size, and quiet, are felt more keenly in this setting than in a stable.” Smith highlights the experience of the animals as one that is calming, peaceful, and restorative. She credits this largely to the presence of the horses in the otherwise sanctified space of an art gallery—one which, perhaps, allows visitors to truly look at the animals in a way that more familiar settings might not invite.

Some will no doubt argue that—marvelous experience or not—this is still no reason to cause any pain or discomfort to animals. Art, as “mere entertainment”, doesn’t warrant anyone’s non-consensual suffering. But I think that this is to shortchange the importance of the arts. Mary Deveraux writes: “Artists possess talent and training that make them capable of showing us what we might not otherwise see or see clearly…if we accept that artists are specially equipped—technically and imaginatively—to help us see things, then they naturally have a special social role to play. They can function as critics, reformers, revolutionaries—or even, as defenders of unappreciated aspects of the status quo.” (p. 214) So just what is it that Kounellis is helping us to see clearly? Perhaps it is a demonstration of the relationship between man and animals—a relationship which, as John Berger has incisively discussed, is one of almost utter marginalization. In bringing animals into the space of a gallery, Kounellis elevates work animals to the status of art objects—thereby challenging our ordinary lack of regard for them. This important function is, I think, enough to warrant a bit of temporary equine discomfort.

I have less to say about Nitsch’s shows, in part because I know much less about his process and his use of materials. As I understand it, Nitsch uses animal carcasses obtained through commercial butchers for his performances. I think it’s safe to assume that at least some of his materials are the product of factory farming—and, whether or not the animals were slaughtered specifically for Nitsch, this would mean that the production of Nitsch’s pieces require a great deal of animal suffering. Is this suffering warranted? Given that factory farming practices involve intense and prolonged animal suffering, the bar for justification is correspondingly much higher than that set by the discomforts of twelve horses in a gallery. Although Nitsch claims that he is an “animal protector” and that “from [his] point of view factory farming is the biggest crime in our society”, his usage of these materials—even in a critical role—seems rather difficult to me to justify. (Although it’s possible that Nitsch uses only animals that are humanely raised and painlessly slaughtered. This would largely address my concerns with his work.)

I’ve been focusing solely on the justification of animal suffering in art-making practices. My aim has been to defend the incorporation of animals into artworks insofar as a) this involves realizing a specific value that couldn’t be realized without the incorporation of animals; and b) this doesn’t involve an especially high amount of pain or discomfort on the part of the animals in question. 

Suffering aside, there are still plenty of questions that one might raise about the appropriateness of these pieces. Here are two that I hope we might discuss further below: First, are Kounellis and Nitsch demonstrating adequate respect for the animals and animal bodies they incorporate into their show? Do animal carcasses, for example, deserve not to be mutilated in the context of an artistic performance—even if this involves no suffering on the part of the animal? Second, suppose that we grant that there is something morally problematic about Kounellis’s and Nitsch’s pieces. Even if this is the case, should we nevertheless allow artists some leeway morally, in the name of producing good art? If so, how much? 

Anthony Cross is a lecturer at the University of California, Los Angeles. www.anthonycross.com

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Ross Cameron: A protestor showed up to a recent presentation of Jannis Kounellis’ 12 Horses with a sign reading ‘It’s not art, it’s animal abuse.’ I’m not sure about the first claim, but I agree completely with the second: this work is, to my mind, inexcusable animal abuse. It is simply not okay to tie sentient beings to a wall, deprive them of the ability to exercise, to lie down, to turn around, or to properly sleep throughout the day for our own amusement.


Perhaps ‘amusement’ is not right. This, one might counter, is not for our amusement, it is for art. This brings us to the first of the protestor’s claims: Is this art? I certainly don’t think that it is not art because it is animal abuse. It could be both. Personally, I’m happy to be fairly liberal in what gets to count as art, so am happy to apply the label in this case. I don’t think it’s particularly good art. (Seriously? You tied some horses to a wall? Good for you. Mozart and Monet will surely be worried about their place in history.) But I think it is art. But so what? I don’t think that speaks at all to whether the display is permissible. ‘It’s art’ is often wheeled out as a defense of something that is perceived by some to be objectionable. Why should that be a defense? It may be art; it can still be wrong. Art isn’t exempt from moral evaluation. Just as a joke can be funny, but its telling be impermissible because it is racist or sexist, so can an artwork can be aesthetically valuable but its production or display be impermissible because it is cruel or abusive, e.g. In this case, these horses haven’t consented to their use in this work, and no matter how much aesthetic value you can wring from the abuse of non-consenting sentient beings, such abuse is still wrong. Cruelty can’t be paid for by the increase of some other kind of value. Eugenicists could have learned all kinds of otherwise unknown things from experimenting on non-consenting test subjects, thus increasing the epistemic value in the world: but it doesn’t matter how much they learned, those experiments would still be disgraceful, and impermissible.

Maybe the issue here is the difference between human and non-human animals? I doubt anyone would defend the work 12 Humans, where non-consenting humans are chained up for the purposes of art. If Descartes is right, despite all the evidence to the contrary, that animals are merely emotionless automata then, of course, there is no moral issue here. But I don’t think many people really believe that. Even my most carnivorous of friends seem to want a reduction in the mistreatment of animals on the way to their eventual slaughter. Why, if they are automata? As far as I can see, there are two consistent positions: the absurd Cartesian one, on which we can do whatever we want to animals because they are no more worthy of moral consideration than stones, or one on which many animals (at least) are worthy of moral consideration – that their suffering matters. In that case, even if you think that these horses have less moral worth than humans, you have to hold that it is a pro tanto bad thing for them to be used in the way 12 Horses uses them. And if you think that this moral badness can be outweighed by the aesthetic goodness, how far can we go? Can we justify even worse abuses if they result in even more beauty? Can we start torturing the horses, if their distressed whinnies produce a particularly pleasing sound, or if the pools of their blood result in a beautiful crimson tapestry?

Occurrences of Hermann Nitsch’s The Orgies Mysteries Theatre vary greatly on how they make use of animals. Sometimes they involve animals being killed and butchered as part of the work, other times they utilize animal parts bought from butchers, or photographs of such. I have no problem at all with a work using photographs and other representations of dead animals. Others do. Protestors against a recent occurrence of this work cited UNESCO’s Universal Declaration of Animal Rights, which demands that even dead animals be treated with respect. I don’t think there’s any good moral principle here the work is in violation of: respecting a being even once it’s dead doesn’t demand that we respect its dead body. When I’m dead, you can feel free to use my body as a bean-bag for all I care. But when the work strays to butchering animals as part of the process, then I think it has become clearly impermissible. Nitsch defends the work by saying that he only makes use of animals that are marked out to be butchered anyway. (Cf. the defense of the infamous Italian horror film Cannibal Holocaust.) That doesn’t move me. If someone is a victim of the sex trade, it would be wrong for me to stage an artwork during which she is raped on stage, even if that’s what would have happened to her had she not been involved in that work. That work would be wrong even if the point of the artwork was to draw attention to the plight of victims of the sex trade. That woman is not ours to use as we will, even if our purpose is art, and even if our purpose is art with a worthy moral message. It might be easier for us to live with ourselves when it’s cows being abused in the pursuit of art – and, indeed, the abuse of a cow is no doubt not as wrong as the abuse of a human – but it’s still wrong. Whether or not these beings would have had as bad a life, or even a worse one, had they not come under your power doesn’t matter; what matters is that they are under your power, and therefore you have an obligation to treat them well. Any abuse afflicted on them now is your fault, and it’s no excuse to plead that it was in the pursuit of art.

Ross Cameron is Associate Professor of Philosophy at the University of Virginia. 

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John Rapko: Prior to the 1960’s it was quite rare to have a live animal as an element of a work of visual art, or fulfilling a constitutive role in a live performance. In marked contrast, in the past half-century both dead and live animals have featured in a number of prominent works. Some of these works might be called ‘iconic’, which means they are marked by something like the following characteristics: (a) they are works that are known and recognized by almost all people who might plausibly claim familiarity and serious interest in contemporary art; (b) these works are for the most part known and recognized through photographs. This is partly because of the global character of contemporary art, which effectively blocks a large percentage of contemporary art’s audiences from seeing in person many of its foundational and orientational works, but more because such works were ephemeral works of performance and installation art, the major genres distinctive of contemporary art, or remotely located (most notably Robert Smithson’s Spiral Jetty). The most iconic work using a dead animal is surely Joseph Beuys’ How to Explain Pictures to a Dead Hare of 1965, wherein Beuys, with gold leaf on his head and doused with honey, cradled and manipulated a dead rabbit for three hours while seemingly explaining his pictures to it. An iconic work with live animals, Jannis Kounellis’s Untitled 12 Horses, was first shown in 1969 and has been re-staged a half a dozen times since. Iconicity is a matter of degree, and need not be thought as the most telling mark of artistic value; to say that a work is iconic does not seem to carry the implication that the work is of the highest artistic merit, though it would be odd to ascribe iconicity to a mediocre work; and an iconic work may not be generally recognized as the greatest achievement of its genre nor of its maker. Iconicity may also attach primarily to a particular body of work and not to any particular instance, such as with late-modernist Robert Motherwell’s Homage to the Spanish Republic. But it does not seem fanciful to suggest that those who care for contemporary visual art have a range of overlapping reasons for having an interest in seeing iconic works, and rare opportunities for seeing these works include the re-staging of ephemeral works, or the gathering and exhibition of a rarely shown iconic body of work, such as the work of the Viennese actionist Hermann Nitsch.

Why are contemporary artists drawn to use animals in their works? Evidently there is neither a single nor definitive answer to this question, but one thought that suggests itself is that non-human animals stand for a realm of what the anthropologist A. David Napier has called ‘natural resemblances’, aspects and parts of the world wherein we seem to find elements that manifest themselves as laden with meaning prior to our awareness of them, and the encounter with which tends to undermine our sense of our uniqueness, whether as individuals, social groups, or as a species. The emergent interest in incorporating animals into art is also coeval with the emergence of performance art as a genre of visual art distinct from theatrical performance; indeed, Beuys’s two best-known performances involve his interaction with animals. Arthur Danto argued that a central aim in performance art is the self-transformation of the artist in the service of the collective self-transformation of the audience. Danto judged the attempted realizations of the aim futile and pathetic, both because the artist was not in fact transformed—she retains her identity qua artist, and indeed augments her status as an artist in doing and repeating the performance–, and because the audiences remain untransformed in witnessing the performance—the institutional staging of the performance as art neutralizes the action and returned them to the artworld as just yet more instances of novel artworks. But animals in art retain a kind of otherness that incites an imaginative project that cannot be completed: what is it like to be a bat? The concomitance of the emergence of performance art with use of animals in art suggests that the use attempts to address the failure to fulfill performance art’s aims, and accordingly touches on an essential contradiction in contemporary art, the routinisation and institutionalisation of characteristically avant-gardist attitudes and practices –boundary-breaking; the range of attacks on the bourgeois conception of art; and the self-transformation of the artist– that aimed in some sense to overcome the limitations of art.

Now, starting no later than Newton Harrison’s Portable Fish Farm: Survival Piece 3 of 1971, which proposed to display the raising, electrocution, and eating of two dozen catfish, artworks that incorporate animals have incited protests and, more recently, petitions aiming to prevent or end the display of such works. The works also typically have their defenders, and anecdotal evidence suggests that a great many members of the contemporary artworld would endorse most instances of the use of animals in art, and offer a range of justifications in terms of a variety of artworld truisms, such as the supposed right of artists to unrestricted free expression, and the consequent inviolability of works arising from the exercise of that right, or the claimed fertility, importance, seriousness, iconicity, or unimpeachable pedigree of such works. Nor correlatively is there any consensus that I can discern among those who object to such works precisely what it is that is objectionable. The quoted statements of those objecting to Kounellis’s exhibition suggest a range of objections from the illegitimacy of treating animals as objects of visual fascination generally to the alleged specific mistreatment of the horses in this particular instantiation of the piece.

A beginning of insight into these matters might arise from considering the range of objections and defenses of Kounellis’s and Nitsch’s works in light of a schema offered by Tzachi Zamir for thinking about the moral dimensions of the use of animals generally. Both objections and defenses crucially employ two concepts: use and exploitation. How is the distinction between them to be made out? Is there a distinction in artistic practices between the (morally neutral) use of animals and the (morally malign) exploitation of animals? Zamir urges that the distinction be drawn in terms of benefits to the well-being of animals. Exploitation characterizes a subset of uses that are substantially detrimental to what is being used, and in which the use furthers the user’s well-being. To fail to make the distinction between use and exploitation in practice is the metaphysics of the factory farm. Those who object to the very idea of benign uses of animals in art seem to presuppose that no such distinction can be drawn, and that the terms collapse into the malign pole: all (artistic) use is exploitation, and accordingly such works are objectionable and should not be displayed, regardless of their alleged artistic merits. The quotation from Danny Moss suggesting that having the horses tethered for a lengthy period need not imply the complete rejection of the piece; the period of daily exhibition could be readily shortened from nine or six hours to, say, two or three hours. 

With regard to these two recent cases, my sympathies are very much with those objecting to the display, though I find myself uncertain on account of the fragmentary and scattershot presentation of the evidence in both cases: how problematic is it for a horse to be tethered amongst others horses for six or nine hours? What sort of horse? And what is the relation between the works by Nitsch proposed for display and his notorious killing of animals as part of some of his past performances? For what it’s worth, I have no settled attitude towards Nitsch and his work, and I consider some of Kounellis’s works to be among the greatest works of the past fifty years. 

Perhaps one route for deepening reflection here is provided by that inexhaustible resource for ethical thought and practice, the third book of the Analects of Confucius:

Tzu-Kung wanted to do away with the sacrificial sheep at the announcement of the new moon. The Master said, ‘Ssu, you care for the sheep, but I care for the ritual.

A major part of Confucius’s efforts were devoted to the restoration of the rites after a long period of cultural decay. But restoration is not mere repetition, as on the Master’s understanding it must include recreation of the spirit of the rite, which includes the motivation to participate and the ways in which the rite animates and is animated by its cultural context. Note that Confucius does not dismiss Tzu-Kung’s concern, and it would be in the spirit of his thought to treat the restoration of the rite as an occasion for collective re-thinking and improvisation, and not simply to produce new instantiations of an iconic ritual.—So too with these iconic works of contemporary art?

Note: in the spirit of the rite of blog posts, I have not included citations, but I wish to note that my thinking on these matters is greatly indebted to three works in particular: Richard Wollheim’s essay “The Sheep and the Ceremony”, Tzachi Zamir’s Ethics and the Beast, and A. David Napier’s Foreign Bodies: Performance, Art, and Symbolic Anthropology.

John Rapko currently teaches ethics at the California College of Arts and art history at the College of Marin, and is the author of Logro, Fracaso, Aspiración: Tres Intentos de Entender el Arte Contemporáneo. Some of his writings can be found at www.academia.edu

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AFB Artworld Roundtable: 5Pointz Lawsuit

This is the first in a new series at Aesthetics for Birds called AFB Artworld Roundtable, where Philosophers of Art provide their take on a particular recent artworld event or news story.

Artists Sue 5Pointz Owner & Developers

Nine artists have filed a federal lawsuit against the owner and related developers of the famous graffiti shrine 5Pointz in Queens. The suit claims the Defendents:

“destroyed mutilated, modified and defaced each and every one of the works of art installed by Plaintiffs on 5Pointz…[without] notice in writing regarding their intent to destroy the artwork nor did they afford Plaintiffs…a period of 90 days after receiving such notice either to remove the work or pay for its removal.”

The full story can be found here

The Roundtable
K.E. Gover, Mary Beth Willard, Darren Hick, Erin Thompson

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K.E. Gover: The Visual Artists’ Rights Act (VARA) is only twenty-five years old, and it does not yet have a robust history of case law behind it. For that reason, every suit that invokes VARA presents an opportunity for its limits and interpretation to be tested. The claim filed on June 3, 2015 by nine graffiti artists against Gerald Wolkoff, owner of the 5Pointz property, for painting over their work will require the court to make potentially important decisions about some of the more ambiguous aspects of VARA and its applicability their situation. For example, VARA protects works of ‘recognized stature’ from destruction. This serves the widely-held view that some works of art are so important that they become a kind of cultural patrimony: when I buy a Picasso, it is not really mine to dispose of as I wish, even if it is in some (limited) sense my property. The culture also has an interest in its continued existence. On the other hand, if I buy a velvet dog portrait at the local crafts fair and then decide to use it as a doormat, the artist who made the portrait is highly unlikely to prevail in a VARA suit against me.  Just imagine a world in which it were illegal to destroy any work of art, not just the really good stuff. The plaintiffs in the 5Pointz case claim that VARA is applicable because they are all professional artists who make work of ‘recognized stature.’ But the Act itself does not specify what counts as recognition, or how much a work must receive, before it is entitled to protection under VARA. Also, just because an artist has ‘recognized stature’ does not mean that all of her works do. When, as in this case, the artworks in question fall somewhere in the vast middle of the recognition spectrum between Picassos and craft fair dog portraits, things get murky.

One of the first lawsuits to invoke VARA, Carter v. Helmsley-Spear, Inc., also argued that the threatened work, a lobby installation, deserved protection because of its recognized stature. In 1994, the artists John Carter, John Swing, and John Veronis, known professionally as “the Three Js” or “Jx3,” sued to prevent the removal of their artwork from the interior of a commercial building in Queens, New York. Three years earlier, they had been hired by the building manager for a thousand dollars a week to cover the lobby’s interior with sculpture and permanent installations. They spent over two years covering the ceiling, walls, and floor of the lobby with sculptural objects, interactive elements, and a mosaic that covered most of the floor and the interior of three elevators that opened onto the lobby. 


The company that commissioned the artwork filed for bankruptcy, and Helmsley-Spear, Inc., the new management company, informed the artists that it would be removing the artwork from the building. The artists sought legal protection under VARA to enjoin against its removal. The district court agreed with the plaintiffs that removing the installation would be harmful to their honor or reputation as artists. The judge was also persuaded by the testimony of the plaintiff’s expert witnesses that the work was significant enough in stature that it merited protection against destruction. (The expert witnesses testified that the work was “an incredible phenomenon” and “a very exciting piece”. The judge was less favorably disposed to the opinion of the famously conservative art critic Hilton Kramer, who testified as an expert witness for the defense that the work was “a pastiche of recognized clichés” and “a work so lacking in merit that I believe it serves no useful purpose to retain it” (Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303-Dist. Court, SD New York 1994, 326). The decision was overturned in the Second Court of Appeals, which found that the “Three Js” had created their installation as employees and not as independent contractors. Since VARA does not protect work made for hire, the appellate court overturned the district court’s decision and permitted Helmsley-Spear, Inc. to remove the artwork.


In the 5Pointz case, on the other hand, there seems to have been no monetary remuneration at all, so the question of whether the aerosol art was done for hire is not a factor here. The artists painted their work for free, for no other compensation than the chance to publicly display their work on a building with its owner’s permission. It is somewhat ironic that the artists are claiming that they suffered significant financial and emotional losses due to the owners’ decision to paint over their work without warning, thus preventing them the chance to document their work before its destruction. Street artists who work without the benefit of official sanction cannot expect their creations to last more than a few minutes, much less months or years. Illicit street art is an ephemeral form under constant threat of destruction, either by the authorities or by other graffiti artists. Artists in those circumstances know that if they want to document their work, they had better do it as soon as it is made.  The artists in this case, however, are claiming that the whitewashing happened without warning. This stretches credibility, as does their assertion that it caused them enough “humiliation, mental anguish, embarrassment, stress and anxiety, loss of self esteem, self-confidence, personal dignity, shock, emotional distress, inconvenience” to warrant financial compensation. They seem to believe that being welcomed by Wolkoff to use his building as a public canvas also entitles them to other considerations from him.  But I do not see how that follows. It’s his building, and he never promised the artists that he would preserve their work, or warn them before removing it. It also seems unlikely that the artists do not happen to have any photos of their work, since they point out in the claim that Donna Karan, among others, used its images, as part of their argument for its recognized stature.


Finally, I think that a truer indication that these works were of significant ‘recognized stature’ would be if the surrounding community had decried the paintings’ destruction, rather than the artists themselves. That would be a sign that the culture at large had claimed ownership of the artworks, and felt entitled to continue enjoying them.


K. E. Gover teaches philosophy at Bennington College. http://webfac.bennington.edu/kgover/

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Mary Beth Willard: The production of street art is characterized in part by a commitment to the ethos of ephemerality; works of street art aren’t meant to be permanent fixtures in the urban landscape. The ethos of ephemerality distinguishes street art from other kinds of public art (e.g., murals), where the work ideally is preserved and maintained. 

In the decision not to grant a preliminary injunction against the destruction of 5Pointz, Justice Frederic Block wrote:

“Regardless of Cohen’s belief that the 24 works were to be permanently displayed on the buildings, he always knew that the buildings were coming down — and that his paintings, as well as the others which he allowed to be placed on the walls, would be destroyed…In a very real sense, plaintiffs have created their own hardships.”


Street art is installed by the artist into the gallery of the street; to extend the metaphor, the public is not only its patron, but its curator. Accordingly, once the artist has released the work to the public, she relinquishes all control over what happens to it.  In a slogan: the street will decide.  


So we have a question: if, as street art, the works at 5Pointz were intended for eventual decay, then why should it matter that the works were destroyed by the owner of the building?The entire implications of 5Pointz for the ethos of ephemerality can’t be worked out in a blog post, but part of what seems to be the issue here is who constitutes the street.

  
Some thoughts: attempts to preserve street art can be understood as challenging the street’s decision regarding what gets to stay in its “gallery.” Here’s a non-5Pointz example. Shortly after Banksy’s Hammer Boy was placed in NYC, it was protected with plexiglass; and shortly after the plexiglass covering was installed, it was covered with a tag declaring “Let the streets decide!” Banksy did not protect the work himself, so the question here is whether preservation of street art by someone other than the artist runs contrary to the ethos of ephemerality. Does protecting Hammer Boy usurp the street’s decision, or is the placement of the Plexiglass the “curators’” decision to protect a treasured artwork from vandalism? 

The answer isn’t clear, of course (where would be the fun in that?), but the case of Hammer Boy raises questions about the ethos of ephemerality and how it affects the preservation of street art. What’s interesting about the suit over the destruction of 5Pointz, is that it interrogates the ethos of ephemerality through considering the destruction of street art. As I understand it, the artists are suing the owner now not for the destruction of the 5Pointz space, which they had grudgingly come to accept following the denial of the injunction, but for the unannounced whitewashing of the space in the weeks prior to destruction, which meant that the artists could not successfully preserve any of their work.  

Arguably, however, had some tagger covered the work at 5Pointz with whitewash, the artists would not have cause for complaint according to the ethos of ephemerality; the street would have decided against their work. Here, the complaint seems to be partially that the street did not get to decide ultimately what happened with the work, because the owner of the building destroyed the work.


So, preserving a street artwork can violate the ethos of ephemerality; but so too can destroying a street artwork prematurely. 

Mary Beth Willard is assistant professor at Weber State University. https://sites.google.com/site/mbwillard/

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Darren Hick: On June 3, 2015, a number of street artists filed suit against the owners and developers of 5Pointz, a graffiti mecca in Queens, New York. The complainants are seeking damages on a claim that, in whitewashing the property and so destroying their works, the owners and developers have violated the artists’ rights under the Visual Artists Rights Act (VARA), which forms a part of the U.S. Copyright Act.

In this brief(ish) comment, rather than examining the ethical question of whether the 5Pointz plaintiffs have been wronged, I want to look at the legal question. Legal questions are questions of fact, and it is either a fact that the plaintiffs have been legally wronged, or it’s a fact that they haven’t. But legal facts are funny things.


If we accept the plaintiff’s version of the facts, the defendants “permitted” the plaintiffs to adorn the 5Pointz buildings with graffiti, placing Jonathan “Meres One” Cohen (not himself one of the plaintiffs) in the position of “volunteer curator/registrar/director/manager of the art program at 5Pointz,” even giving Cohen keys to the buildings, leasing offices for his use, and setting restrictions for what sorts of images could be painted. These claims may yet be disputed by the defendants, but let’s assume they are not. Several problems still remain. Two questions will or may be central to the case:


Question 1: Have the street artists created “works of visual art” and are their works of “recognized stature”?


Under VARA, to qualify for remedy for the destruction of one’s work, the work in question must qualify as a “work of visual art” (required for any of the rights under VARA) and be of “recognized stature” (specifically required for remedy where one’s work has been destroyed). A thing does not have to be recognized as a work of art to gain copyright protection generally, but it does need to be recognized as a “work of visual art” to gain the additional protection of VARA. Section 101 of the Copyright Act defines a “work of visual art” as including “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.” There may be some quibbling about whether the works adorning the walls at 5Pointz qualify as works of visual art (and this is almost certainly where the pundit-on-the-street will want to weigh in), but as they are unproblematically singular paintings, it seems they will qualify. The more difficult condition is whether those things are works of “recognized stature.”


The complaint filed goes to substantial lengths in attempting to establish that the works of the complainants are, indeed, of recognized stature. Well, sort of. Curiously, the complaint makes a series of moves like the following:


65. [James “JimmyC”] Cochran’s works of visual art are works of recognized stature. His work can be found in galleries and exhibitions around the world, including in the United States, Europe and Australia.


66. Cochran had a work of visual art on or at 5Pointz titled “Subway Rider.”


This move (and the others like it in the complaint) suggest that (1) Cochran has created works of recognized stature, (2) “Subway Rider” is a work of Cochran’s, and so (by presumed implication: 3) “Subway Rider” is a work of recognized stature. Although past courts have (perhaps oddly) concluded that prior recognition of a work is not a necessary condition for it to have “recognized stature”, that Cochran has elsewhere created great works certainly in no way implies that “Subway Rider” is one of them. But with the works destroyed, and their creators having not had the opportunity to record them for stature, this could (at least in principle) go either way. The fact here (as it happens) will depend on whether art experts, the artworld at large, or the general community would recognize them as such.


(Interestingly, had the complainants contended that the painted work at 5Pointz is a single, collectively-authored work (rather than, as in the complaint, a collection of more than 350 individual works), they may have had a much easier time establishing the requisite “recognized stature”, as 5Pointz is (as noted in the complaint) recognized worldwide. However, this would have resulted in a much lower potential payout for the plaintiffs. Where the monetary value of a destroyed work is uncertain, it may acquire a minimum worth of $20,000 under VARA.)


Question 2: Is their having been granted permission to adorn 5Pointz with graffiti sufficient for VARA rights?


VARA in no way specifies that, in order to gain the rights offered under its protections, the artist must have permission to create the work in question on another’s property, and this is (to say the least) a bit strange. On its face, this would suggest that, were Cochran to (without my permission) spray paint the door of my car, I could be open to a $20,000 lawsuit should I get it cleaned. If the court takes up this issue (and it may not), it has (it seems) three rough options: 


(1) The court could say that a contract with the property owner is necessary for VARA rights to activate, which would leave the 5Pointz artists without legal remedy in this case. (This assumes the artists had no such contract, and since the complaint makes no mention of a contract, I think we can safely make this assumption.)


(2) The court could say that permission is needed, but not a contract. This would provide the 5Pointz artists with legal remedy, but not the graffitist who paints my car. (It would raise additional questions, however, for those who add spray paint to Cadillac Ranch in Amarillo, TX, where permission is perhaps implicit but nowhere specified.)


(3) The court could say that neither permission nor a contract is needed. This would provide the 5Pointz artists with legal remedy, but likewise for the guy who spray paints my car.


Either option (1) or (2) seem like the reasonable options, but each would require that the court to go beyond what is written in VARA to make their decision, which the court may be hesitant to do.


One possible move for excluding (3)—but leaving open the question of (1) or (2)—is to rely on the “unclean hands doctrine”, which limits legal remedies for those who have acted illegally, inequitably, unconscionably, or in bad faith—such as (we might suppose) the illegal painting of a graffiti artist. This would exclude protections under VARA for the illegal graffiti artist, but would not settle the matter for the 5Pointz case, as the plaintiffs presumably did not act with “unclean hands”. However, this doctrine is largely without legislative or scholarly basis, and has been alternatively accepted and rejected by New York courts, so there is really no predicting how this might go.


In one federal case, English v. BFC&R 11th Street LLC, the court found that VARA “does not apply to artwork that is illegally placed on the property of others, without their consent, when such artwork cannot be removed from the site in question.” However, first, the court here relied on “common sense”—and not on anything in VARA, and not explicitly on the unclean hands doctrine—to make this decision. Another court could have a different sense on the matter. Notably, the 5Pointz case was filed in the Eastern District of New York, and not the Southern District (as in the English case), thus reducing predictability of the outcome. Second, the wording in this passage does not imply that consent is sufficient to initiate rights under VARA.


In another federal case, Pollara v. Seymour (this one in the Northern District of New York), the court entirely sidestepped the fact that the free-standing mural at issue had been illegally erected—though, based on the details of the case, probably not in bad faith—leaving open the possibility of VARA rights for artists who illegally place works on others’ property.


Perhaps you think (like I do) that option (3) above is utterly unreasonable. Perhaps you think either (1) or (2) is unreasonable as well. But unless you are a judge in the Eastern District of New York, or on the jury in this case, it doesn’t really matter what you think. But if you are the judge or on the jury in this case, it matters very much what you think, because what you think determines a legal fact: either that the complainants have been wronged, or that they have not. At this very moment, it is a fact that the 5Pointz artists were given permission to adorn the buildings with their creations, or else it is a fact that they were not. But, until Questions 1 and 2 above have been settled, it is not yet a fact that the 5Pointz artists have been legally wronged, and it is not yet a fact that they have not. 


Darren Hudson Hick is a visiting assistant professor of Philosophy at Texas Tech University. For more on his work and possibly a really nice coleslaw recipe, visit: www.typetoken.com.

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Erin Thompson: Can street artists benefit from the law? Of course they can. Copyright laws give artists rights over the images they create, regardless of whether or not they had permission to create them in a particular location, as has been shown in a recent series of suits against Roberto Cavalli, Terry Gilliam, American Eagle Outfitters, and other fashion designers, directors, and musicians for using graffiti murals without permission in advertisements

But the current 5 Pointz case may be another story. At the heart of the artists’ claims is the Visual Artists Rights Act of 1990 (VARA). VARA gives an artist the right to collect damages in two relevant circumstances: first, when there has been “any intentional distortion, mutilation, or other modification of [an artwork] which would be prejudicial to his or her honor or reputation,” and second, when there has been “any destruction of a work of recognized stature.” VARA does not define or give any examples of “recognized stature” nor what it means for an action to prejudice an artist’s honor or reputation.

It’s easy to think of hypothetical situations that VARA is meant to prevent. Say I purchased Kara Walker’s sugar sphinx and put it on display in my (improbably large) private museum, but not until I had carved a giant Confederate flag on its flanks. My addition would suggest to the public that Walker supports something that’s contrary to the whole trend of her artistic and ethical reputation. Definitely not cool. VARA to the rescue – Walker could use it to force me to remove the work from display and to collect money to compensate for the damage I had already done to her reputation.

But is what happened at 5 Pointz the same sort of situation? The artists claim that the building owners whitewashed their graffiti murals “in a disgracefully crude, unprofessional manner,” in some instances painting over only parts of the murals or leaving a white smiley face over a mural. Was the manner of covering over the work prejudicial to the artists’ honor or reputation? The answer to this question probably depends on your thoughts about the ephemerality at the heart of street art. Imagine that the court finds that the honor or reputation of the artists was prejudiced just because their works were painted over – this would mean that anyone painting over any piece of graffiti art would violate VARA, including other graffiti artists.

So what about the other, more serious claim – that, leaving aside the specifics of their whitewashing techniques, the property owners violated the graffiti artists’ rights by destroying their work? Here, VARA requires the artists to show that the destroyed works were of “recognized stature.” There has been lots of discussion, and very little consensus, about what this means. Again, it’s easy to give examples at the extremes. Walker’s sugar sphinx was recognized by thousands of critics, scholars, and members of the public; if I destroyed it without her permission, I would be taking away all sorts of values (aesthetic, financial, experiential, etc.) from all sorts of third parties. On the other hand, if I use my extremely feeble artistic skills to make a drawing that my husband puts out with the recycling, I have no VARA rights because no one recognizes my scribbles as great art and there’s no loss to the world from their destruction.

But where should the line be drawn between the extremes? You might be tempted to advocate for erring on the side of preserving art, but we have to remember there is also value in destruction. Since VARA allows the creators of works of recognized stature to prevent the destruction of those works, a different group of artists previously sued the 5 Pointz owners, trying to stop its demolition by arguing (essentially) that all graffiti murals in prominent public places are works of recognized stature. The court did not accept this argument, but imagine the consequences had they succeeded – if any graffiti artist could stop the demolition or change of any surface on which she painted. A mural would thus deprive building owners of their investments, meaning that they would try even harder to prevent the creation of any street art on their property (instead of, for example, giving permission for graffiti artists to paint on temporarily vacant buildings before their redevelopment, as the owners of 5 Pointz did). And more paradoxically, this stringent protection would mean that no other artists could repaint those walls. Good-bye, competitive and ever-changing nature of street art.

So, again – where should the law be drawn? This case might help decide that, and so now is a crucial time to have this debate.


Erin L. Thompson is an assistant professor of art law and art crime at John Jay College (CUNY).
www.artcrimeprof.com