There has been some novel artworks that from their inception, deliberately incorporates the law as an intrinsic element of the work itself. Carey Young, a British artist, has art works with a legal theme. In ‘Disclaimers’ (2004), she collaborated with Massimo Sterpi, a intellectual property lawyer and art law expert, to create three disclaimers. We are not just talking about such works but, more particularly, works where the law is the art itself.
We start simply with Christo’s Running Fence (1972-76) which could only be realised by the artist successfully negotiating the right to place his fence-poles and curtain on land owned by other people; an integral part of the concept for the work itself. For Christo’s wrapping the Pont Neuf in Paris, it took ten years to get the permits – a physical monument to the overcoming of bureaucratic obstacles.
In such works, resolving the legal issues are integral to the works itself (no permission, no works). However, the legal elements are ‘hidden’ when the work is displayed. A viewer will not realize the role played by the law. Not so for the following works where the artwork itself is hidden while the legal element is the only one being displayed.
Carey Young, for the 2003 Beck’s Future Award shortlist, had a work (‘Non-Disclosure’, 2003) which consists solely of a non-disclosure agreement framed on a wall. The document explains that Miss Young has made a commissioned work of art (which takes the form of a press release) that she has revealed to a member of the Beck’s team. That person then signed the non-disclosure agreement not to reveal what he has seen to anyone.
More intriguing is a conceptual artwork by Anna Livia Lowendahl-Atomic which also uses the law as an intrinsic element of the piece. The Swedish artist’s work, ‘A Selection of Interesting Secrets from Various Stages in my Life’ (2000), features legal documents offering 37 of her secrets for sale. The secrets were set out in the form of an auction catalogue, numbered and priced, and with a brief description of what it consist of (as if it were an object, such as an antiquarian book). As examples: “Lot 13, on sale at £900, was A most powerful example of a greatly distressing burden only strengthened by its obsessive concealment.” or “Lot 36. A serious article with near fatal consequences that left the artist hanging by a thread. Good condition. 1988, London. £550.” But any potential buyer must sign a non-disclosure agreement binding the artist and the buyer never to reveal what the secret is. If a purchaser buys a secret, detailed instructions are given as to the time, place and means by which the secret will be revealed. Once it is revealed, neither its new ‘owner’ nor the artist is allowed to disclose it, even to friends and family. Only two secrets are said to have been sold.
In the same way that non-conceptual artworks can be said to be ‘completed’ only when seen or experienced by the viewer, so with these ‘secrets’: buyers can access them only by signing a non-disclosure agreement, promising never to tell the secret to anyone else; this document is proof that they have bought the artwork. The delivery of the secret to the buyer is an experience in itself – one to be remembered but not recorded or documented. After the event, the buyer is left only with a copy of the confidentiality agreement and a memory of the disclosure.
The heart of the matter, from a legal prespective, is a fusion of the law of confidentiality and the law of contract. The law of confidentiality is the right to prevent disclosure of confidential information acquired in confidential circumstances. A good example in recent times is the court decision in the Douglas v Hello! Ltd which concerns the unauthorised scoop publication by a magazine of the Douglas-Zeta Jones wedding photographs. The photographs were prevented from being published using the law of confidentiality.
The law of confidentiality is used as a normal part of business life to protect private discussion of ideas, designs, techniques or know-how which are regarded as trade secrets. Another example, commonly used, is a photographer’s model release agreement, which photographic models sign to allow the photographer specified use of the images taken – usually for a fee.
Both the ‘secret’ projects fits into this legal framework, and the non-disclosure agreements firms this up between the artists and the buyers.
What is fascinating (from a lawyer’s perspective) about the ‘secret’ projects is the challenge it poses to conventional notions of intellectual property. We normally think of the laws of copyright, design right, trademarks, patents or passing off as giving the intellectual property rights which only originators of work can merchandise and expose to the public. In these cases, the commodity the artists seek to take to the market and, which cannot be disclosed by the buyers, is the secret artwork that makes up the ‘intellectual property rights’. The artists use the ordinary laws of contract (offer and acceptance by two parties intending to create a legal relationship in a commercial context) and of confidentiality to achieve their artistic intent. The buyer of such artworks becomes a participant in the work itself. Outside of contracts and confidentiality, can the works be protected?
The next chapter of the ‘secrets’ story turns on this very question. Miss Anna Livia subsequently accused Ms Carey Young of plagiarism and said that she is considering her legal remedies.
In the field of art, and especially design, creators of original visual concepts or solutions normally disclose their ideas to potential commissioners/clients at presentations. It is particularly important to do so in confidence when making a pitch, presentation or submission in competition with others – the danger being that commissioners might steal the concept, execute it themselves or engage someone else to do so.
Copyright law does protect artists’ original designs from being stolen and reproduced, but only if they have been manifest or made in a material form (say, as a sketch, drawing or model). But copyright law does not apply to protect ideas or concepts that are not put into a concrete form.
So, in the ‘secrets’ saga, has the ideas or concepts been put into concrete form? Unlikely. Here lies a limitation when applying copyright law to conceptual art. Copyright law is obsessed with form and expression. It does not translate well to conceptual art, where the idea is more important than the form and often the only physical evidence of the idea is its documentation. This might explain why I can find no legal suit against Ms Young.
Finally, who are the lawyers involved in drafting the respective non-disclosure agreements, a constituent element in these artworks? I know. But that is my secret.