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Art Contracts & Artist's Rights - Discussion

As a photographer speaking in terms of photography - these days, it is kind of funny having this conversation because ...
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Gentrification & Public Art

By the very structure of [museums] existence, it is a political institution. (…) The question of private or public funding of the institution does not affect this axiom. (…) In principle, the decisions of museum oficials, ideologically highly determined or receptive to the deviations of the norm, follow the boundaries set by their employers. These boundaries need not to be expressly stated in order to be operative. * Hans Hacke - All the art that's fit to show
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Gentrification & Public Art Discussion

These projects have been around for several years and had motivated creation of new alternative spaces. Now there exist around twenty to twenty-five alternative spaces, and what we're seeing with this development is that these alternative spaces have blended in with the communities and with it's own localities, and have also contributed to the development of the culture of these communities.
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Park Chaneung Interview

But I don't want Seoksu to be a popular place. I don't want Seoksu to be gentrified. I want it to develop slowly, step by step, and mix the past and the future. I don't invite artists to make it more expensive. My dream is to convert the central space of the market into a place where the citizens can come and enjoy arts, and to make a harmonious relationship between citizens and artists. I thought that, if the government gives me the chance, I could make my dream come true.
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Woon-Gi Min Interview

I think artists' activities should be aimed toward these matters, like the New Town Plan, which are threatening people and their lives. But art is now mostly used to advertise the city's policy more than solving citizens' real problems.
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Droit moral

The term moral rights is a translation of the French term Droit moral, and refers to the ability of authors to control the eventual fate of their works. The concept of moral rights relies on the connection between an author and her/his creation. Moral rights protect the personal and reputational, rather than purely monetary value of a work to its creator.
The legal institute of Droit moral was practiced in France as a legislative practice, while its theory was developed mostly by German authors such as Immanuel Kant. The lawyers of the French revolution contributed to the spreading of the idea of Droit moral and in 1814 it could be said it entered the legislative sphere in France.

Concepts that constitute Droit moral

The short history of Droit moral

The first chapter in the legend of moral rights was written, when Plato's disciple Hermodoros made master's lectures known outside the circle of inities. Both in antiquity and in the middle ages it was a matter, on one hand, of the private reactions of writers and artists and, on the other, in élite circles of evaluations which relied on good taste or ethics. At least until the end of the middle ages there were no juridico - technical condtions for dealing with such problems, and when they emerged with the development of the printing privileges they were used in an economic interest of the publisher and the state. Secondly, until the 18th century, literary and artistic creation was regarded as a handicraft - and thus not associated with a given personality - or as a learned profession. It is not until the 18th century that the artistic and literary creation was conceptualized as a highly influenced by the emphatic engagement of a creative individual. When this concept appeared the basic necessary conception for the legal recognition of artists rights that constitute Droit moral was attained.
Until the 19th century this new conception remained mainly within the realm of aesthetics and elite artist circles, it had yet to enter the social history and to become a part of the sphere of legal technique for Droit moral - the sphere of law.

The short history of the concept of copyright and immaterial ownership

With the emergence of the printing press began the long process of learning, trough which European lawyers learned how to adopt the concept of immaterial ownership. Durring the French revolution there has been widely advocated a right of ownership. Apart of the fact it contributed greatly to the development of Droit moral it has also created a lot of technical juridical confusion. If there is a right of property of the author there must be a right of property of the distributor - the purchaser. These problems were discussed by German authors like Immanuel Kant who claimed that the author's right is not the right over object, but a personal inherent right and thus not transferable in the transactions. This question weather the Droit moral is an economical right, or a personal right, or the combination of the two, became the matter of discussion for the German writers and intellectuals. This question is obviously largely influenced by the attitude towards the notion of the author in the aesthetics of the time.

The sources for the presented text about the Droit moral were diverse sources aquired on the web, out of which the most was used from the following article:
Stig Strömholm; Droit Moral, The International and Comparative Scene from a Scandinavian Viewpoint, Published by Sc.St.L. (http://www.cenneth.com/sisl/)


Art Contracts & Artists Rights

Art practices of the 1960s and 1970s - Immaterial Practices and their contradictory impact on art theory and art market

With the emergence of conceptual art practices in the 1960s art began to investigate relationships and systems that determine its role and meaning. It attempted to redefine concepts such as authorship, autonomy of art, language, the viewer, ethical implications of artistic act, etc. Some artists also concentrated on the process as more important then the final product. The discussion abut art became less a field for poets and writers, now an independent discipline - art theory was more interested in fields such as social sciences, anthropology etc. Artists shifted their gaze towards the institutions, economical and social structures, as active agents that participate and determine the meaning and function of their work. Although the focus of many of these works was the art system an art related topic, these discussions were often also related to broader social movements of the time. Art practices that emerged rejected object based productions and introduced immaterial productions such as performance, land art, public interventions etc.

Even though these new practices had occupied the position of what we regard relevant for contemporary art practices, museums and galleries, as well as publications and education institutions worldwide, had exhibited and discussed such art, adopting many of their claims as new standards in art and art discourse whereas art market had not followed this path. One could make a good point saying that this art has been and is sold on a regular basis just as any other, be it object based or not, conceptual or formal, cutting edge or traditional. And this is mainly true, for after some initial stuttering, art market soon incorporated these practices making surprisingly little effort in approaching these practices in a different way than it approached the art of earlier times. Art market has been based on the fact that art has been enjoyed by it's purchasers as valuables that should either produce a psychological effect art market trough purchaser's relation to the subject matter or, and we believe this to be the case more often, as a commodity that assumed it's monetary value according to the professional reputation of it's author. The rhetorical implications of the work of art that might have been the reason for its creation did not mean a lot to the type of exchange the art market was interested in. What was necessary though, was the existence of the object that serves as the carrier of these rhetorical ideas in order for the artwork to be sold. So with the emergence of these new practices the relationship of the art and market was profoundly disturbed by the fact that so much art discarded the very condition that made artwork a sellable item. As we all know, art market soon adopted these practices, realizing that most of them produced some objects and even if they haven't they still could attain a market value according to the status of it's author, if market found ways to exchange a signature - confirmation of authorship for monetary compensation. The contradiction is that the notion of authorship is among the concepts that were profoundly deconstructed and re-defined by these art practices (as well as theories). We tend to believe that the myth of authorship as the self - realization of creative individual is still the root upon which art's monetary value depends. This dichotomy of what contemporary art practice and art theory take as almost their official stance towards these concepts and the position art market takes is of particular interest to us. It seems that the fact that the contemporary art market and contemporary art practice managed to coexist in recent decades is based on the silent agreement of ignoring this fact.

In capitalist societies the question of positioning towards and within the market emerged almost concurrently with the art practices that needed to rethink their positions in this regard. Some artists made criticisms about the art market, or art system trough their work, some used above - mentioned dichotomy as a way to underline the nature of their work. Maybe one of the most exemplary works of this type could be Yves Klein's Volumes de sensibilite picturale immaterielle (Zones of Immaterial Pictorial Sensibility) where Klein sells his immaterial pictorial sensibility in exchange for a gold leaf.

Contracts regulating artists rights

Seth Siegelaub, in collaboration with a lawyer Bob Projanski, drafted a contract called The Artist's Reserved Rights Transfer and Sale Agreement (1971) that was created to be used and adopted by the artists and gallerists across the international art market. It was intended to suit any kind of art production, be it conventional or not, in order to create a legal way of distributing art and controlling artist's rights over their products even if they are not physically in their ownership. Siegelaub was a big promoter of conceptual art and, among other things, organized exhibitions that would have no material existence except for the catalog as for instance the famous Xerox Book exhibition that took place in December 1968.
"He was an aggressive promoter and paid as much attention to press and publicity as to the content of exhibitions, showing that even unconventional art work could be sold."[1] "Don't forget that Siegelaub was a dealer, and for him the question was how to sell a piece by Douglas Huebler. How could you sell a piece that was, say, just a point on the wall with a little text saying this point is the center of the world?"[2]

One of the most notable instances of The Artist's Reserved Rights Transfer and Sale Agreement is that after artists sell their artwork they maintain their right to benefit from increase in resale value in the amount of 15% of this increase, providing that they can track the ownership of their work. This brings us to the clause of the agreement which explicitly enables them to advise installation of their work or veto it if they believe exhibiting under proposed conditions would be harmful for understanding, or in contradiction with the meaning they intended for their work, and therefore harmful for their reputation as artists. The artist would hold these and other rights in the course of their life time, as well as during the lifetime of a surviving spouse plus 21 years, so artist's children could benefit from these artworks just as is the case with the other kinds of inheritance. This contract was free of charge for the artists and they could also adopt it to their own need with or without consolidation with the lawyer.
The resale rights similar to those proposed by Siegelaub have been adopted by the EU legislative but are governed by different national laws. The question of the minimal increase in value of the artwork necessary for the artist to share the benefit from the secondary sale in Hungary for instance is 19€ while in Czech Republic this minimum is 1500€. [3] The percentage that should be given to the author depends on the national legislative as well.

Artists have tried in several ways to keep their right to be consulted regarding the installation of their work. Prior to Siegelaub's contract a group of artist under the name The Artist's Worker Coalition have tried to achieve this goal with a different approach. One of the artists from this group, Takis, has removed his work titled Tele - sculpture from the exhibition held at MOMA in January 1969. He believed the mentioned piece did not represent well his body of work at the exhibition titled Machine Show and has, prior to the opening of the exhibition, complained to the director of MOMA and offered another, more recent, work for the show, but his complaint was disregarded and the sculpture that was owned by MOMA was exhibited anyway. Takis and a couple of other artists have entered the museum and removed the sculpture from the exhibition in an attempt to initiate a discussion with the museum officials about several museum policies they found non productive.

The right to be advised in ways his art is exhibited was also the focus of Daniel Buren's Avertissement. Daniel Buren wrote the Avertissement with Michael Claura in 1968/69 and it was used since that time as a contract in sale of his works. The Avertissement contains clauses on rights of reproduction, rights of exhibition, attributing origin (authorship), but the clause that could be said is the most interesting one says that in case of breaking the contract from the side of the owner the work ceases to be the authorship of Daniel Buren. Buren points out in an interview with Maria Eichhorn that the major difference between Seth Siegelaub's contract and his Avertissement is the fact that in Siegelaub's case the artist gets 15 % of the increase in value of any resale of her/his work. What Buren objects in this clause is the fact that in this way the exchange of the work as a practice seems to be only about the money. Avertissement is a contract that is trying to enable Daniel Buren; to control the life of his artworks and preferably the whole body of his work, to be able to track the ownership of the work at any given time, but more importantly it's presentation - public or private, reproduction and in that way try to protect artwork's content from "incredible forms of manipulation" [4] In this we can see that Daniel Buren's contract inherits some of the heritage from the Droit moral, a law that was advertised extensively by the intellectuals of "Some people claim that the signature of the artist has a great value; while for others it has none, In fact, the only value of an artwork is that assigned to it by the buyer-which has absolutely nothing to do with the quality of the work (...) In all cases, the high or low value of the work (including extremely expensive work) depends first and foremost on the amount paid by the institution or collector."

The question of signature is usually related to traditional media such as painting or sculpture. It is also very important when it comes to determining originality of the artwork and it's value. But as many other things that function perfectly in the sphere of traditional practices it became problematic to work with the signature with the art from 1960's onwards (there were earlier examples that addressed the signature in an engaging manner, but from the 1960's we can say it became almost a common issue). How do you sign a land-art piece, an installation, etc? Artists started to deal with the matter of signature trough the use of certificate. What is specific in Daniel Buren's Avertissement is that it has to be signed by the buyer and not by Daniel Buren.
Daniel Buren explains the two reasons for not signing it:
Firstly Some people claim that the signature of the artist has a great value; while for others it has none, In fact, the only value of an artwork is that assigned to it by the buyer-which has absolutely nothing to do with the quality of the work (...) In all cases, the high or low value of the work (including extremely expensive work) depends first and foremost on the amount paid by the institution or collector. [5]
He decided not to sign the Avertissement according to his attitude that the buyer is the one who sets the value of the work. So in his case it is the opposite of the usual practice; it is him who collects the signatures from the buyers trough his Avertissement and not vice versa. Secondly; one of the ideas related to conceptual art that Buren opposed at the most is the idea that art does not have to be visual anymore and exist just as an idea. He says: "This invisibility seems to work in parallel to the notion that you could deal with a certificate and not a work anymore (...) it seemed to reinforce the idea of the concept superimposing the idea on top of the physicality of the work." [6] Buren himself never considered exhibiting the contract itself, because it would then reduce the work to a signature - owned by the author or a second party. "To me using the certificate with the signature is really banal because it's just another way to inscribe and possess the signature. It's a surrogate way of signing when it's impossible or ridiculous to sign on a piece directly." [7] Avertissement therefore, must not be confused neither with the artwork itself nor its signature, it is merely the tool for maintaining certain control over Buren's work after the sale.

"We constantly, in this part of the world, complain that there is no [art]market. I think that's good because when it comes it won't be exactly what we have imagined."
- excerpt from an interview with Dan &Lia Perjovschi, Romanian contemporary artists

The questions of selling or making a living of art were referred to in different ways in different economical systems. Yugoslavia had a moderate version of socialist/communist regime that resulted in an art production that had been in a dialogue with (influenced by) the art from the West and was not the art production one might imagine in a communist society - socialist realism. But, on the other hand, the social position of art differed from its position in the West. Selling and buying art was never extensively practiced for two reasons; firstly Yugoslavian economic standards were rather low in comparison to the most western countries, so the number of potential buyers was smaller and second - in socialist⁄communist state the position of art was at least declaratively not the one of private entrepreneurship as it was the case in a capitalist state. The position of art was regarded as a cultural production made for the people and this legacy influenced relations present in contemporary Croatian context to this day.

Understanding this context provides a better understanding of what contemporary Croatian artists, Sanja Iveković and Dalibor Martinis, wanted to achieve with the artist contract they proposed to be used for controlling and maintaining professional relationships between visual artists and cultural institutions such as museums and galleries. "The [Yugoslav] society acknowledges that the value of an artwork cannot be validated in the act of buying and selling because the socialization of art is not generated through the purchase of the artwork, even if the party buying the artwork is a public institution, but through publicly communicating the creative process."[8] Although declaratively adhering to these ideas, Yugoslavian general public, as a well as institutions, were still influenced by the bourgeois ideas of what art is and how it should participatein the flow of goods/capital.

As already mentioned, it is interesting how ideas developed in the second half of the 20th century, which worked on deconstructing the concepts such as artistic genius as autonomous creator or the necessity of material embodiment of art, which were practiced on the artistic and theoretical level using new models of thinking and performing art; but at the same time models of placing these new practices in the flow of the capital - market were based on the same principles/concepts this art worked on deconstructing. The way it had been sold did not challenge the market system established so far, but simply made attempts to get included in it. Sanja Iveković and Dalibor Martinis's contract, among other things, made an attempt to address this ambivalence, but let us not forget that their approach to this partly grew out of their social context - a favorable one in regard to this issue. "[This] society does not acknowledge the act of exhibiting or public appearance as a moment in which visual artist exchanges her/his work with the public and impels her/him to assure her/his physical existence through the market (by selling the work of art). Therefore specific forms of artistic activity are nourished, for, in order to sell an artwork, the artist must create objects that can be sold.On the contrary, the act of exhibiting is regarded solely as an opportunity offered by the society to the artist as a way of affirming her/himself in order to indirectly attain a higher market value." [9]

We can also see Daniel Buren's Avertissement as an attempt to address these issues when he defines his work as a series of relationships that need to be met for the work to be regarded as his authorship. But the fact that the work is determined by the contract in order to be sold somewhat objectifies the piece by transforming a rather open quality of the work into a closed one. We believe that, in comparison, asking for reimbursement for art as a public appearance needs no interference into the work itself in order to be operative.

Art institutions in Yugoslavia were public and non-profitable - funded exclusively by the state. But because of the ambivalent attitude of art institutions and general public towards the social role of art and the ways of its production, most of these artists were and still are not compensated: "To make the situation even more absurd, all other participants in the realization of the exhibition (curators, translators, reviewers, guards, maintenance personnel etc.) are regularly compensated for their work by the society. (…) It is obvious that the artist, the subject and the initiator of the action, must demand a change of this for her/him unsustainable state."[10]
The contract they suggested claimed that "it can respond to the needs of all visual artists independent of their aesthetics or medium designations".[11] It is peculiar how artists engaged in non - object based production and art dealers who supported such practices were the ones who drafted agreements intended for all kinds of visual arts. We know now that Siegelaub's wish for his contract to become an internationally adopted standard used by all artists was in fact never answered as such. But the European Union has adopted, among others, a clause extremely reminiscent of the one first presented to us in Sigelaubs' contract (the clause regarding the increase in value gained by the resale of the work). In the case of Sanja Iveković and Dalibor Martinis, as far as we know,[12] the contract was a failure. It was never used by any artist in Yugoslavia or elsewhere and the initiative of financial compensation for the arts public appearances i.e. exhibiting is as far from being adopted in Croatia today as it was thirty years ago in Yugoslavia.

Daniel Buren managed to obtain these rights for himself. He even managed to attain a personal standard trough which he exhibits only if he is paid. As he stated in the interview with Maria Eichhorn, it was not a policy of the art institutions at the time to pay the artist for exhibiting, but now this has become an adopted practice in many institutions in the West.

[1] http://en.wikipedia.org/wiki/Seth_Siegelaub

[2]Maria Eichhorn On the Avertissement: Interview with Daniel Buren from Institutional Critique and After, JRP|Ringier, 2006

[3] Information taken from Copyright Aspects for Authors by Carola Streul at http://www.artecontexto.com/en/readonline-12.html

[4]Maria Eichhorn On the Avertissement: Interview with Daniel Buren

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Sanja Iveković & Dalibor Martinis U Galerije s UGOVORom (In the Galleries with a Contract), Prvi Broj (Number One) The only edition of a newspaper published by a autonomous artists collective under the name of Radna Zajednica Umjetnika, which could be translated as Artists' Working League

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] We have got this information from associates of the artists but we haven't had an opportunity to ask the artists themselves.

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