What is Art? - Southwestern Law School

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130 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2rity would be damaged by their removal from a specific site—wereoutside the scope of moral rights protection. 85 Kelley did achieve apyrrhic victory when the court ruled on a separate contractual claimthat the park authority should have given him at least 90 days noticeof its intention to remove half of his work—but awarded him nominaldamages of only $1. Kelley appealed against the court’s rulingsagainst him, particularly that his work failed to satisfy the legal ‘originality’test.In 2011 the appeal court 86 reversed the initial court’s judgmentabout the classification of the work under copyright legislation, decidingthat an artwork “must actually be a painting or sculpture. Not metaphoricallyor by analogy, but really . . . Authors of copyrightableworks must be human; works owing their form to the forces of naturecannot be copyrighted . . . and are not authored or fixed.” 87 Fixation isa further requirement of copyright laws in many jurisdictions beyond,and including, the US, namely: that an original work must be recordedor fixed in a stable material form—not be transient or ephemeral—soas to be capable of being copied in some material form, and thus qualifyfor copyright protection. The appeal court ruled that “the law musthave some limits; not all conceptual art may be copyrighted”; and thatChicago Wildflower Works was created more by nature than by itsconceiver/planner, and comprised “inherently changeable organisms”. 88However, the appeal succeeded on two key issues: that the trialjudge was wrong to hold that the work failed the copyright originalitytest; and that artists’ statutory moral rights did not apply to site-specificworks, in particular that “an all-or-nothing approach to site-specific artmaybeunwarranted...site-specificart...likeanyothertypeofart...can be defaced or damaged.” 89 That latter decision has been hailed as animportant judgment by artists’ rights campaigners who had, since 2006,sought to reverse the so-called Phillips rule 90 denying artists’ statutorymoral rights to their site-specific artworks. At the same time, the appealcourt’s judgment took a narrower and more traditional view of what85. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006).86. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011), cert. denied, 132S.Ct. 380 (2011).87. This ruling was made by the appeal court of its own motion, not followingarguments advanced by the parties in the appeal.88. The appeal also failed on the contract claim: the court held that the ChicagoPark District official who had informally allowed Kelley to continue use the parkland (after his formal permit had expired) had no legal capacity or authority to do so.89. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011), cert. denied, 132S.Ct. 380 (2011).90. Phillips, 459 F.3d at 143.
WHAT IS ART? 131art could be (for copyright purposes) than views expressed by contemporaryartists.2010 Germany: VG Bild-Kunst v. Museum Schloss Moyländer 91In 1964 German artist and philosopher Joseph Beuys 92 gave an improvisedtwenty minute performance transmitted on Germany televisionchannel Zweites Deutsches Fernsehen, which he called MarcelDuchamp’s Silence Is Overrated. The performance was not tapedbut Beuys allowed the renowned art documenter Manfred Tischer 93to photograph it. Tischer’s 19 photographs are the only record ofBeuys’s unique live performance; they remained unpublished until exhibitedat Museum Schloss Moyländer 94 in 2008. In 2009 that exhibitionwas curtailed by a temporary court order requiring Tischer’s photographsto be taken down, pending a full trial of a legal claim that theimages violated Beuys’s copyright and moral right of integrity.The lawsuit was brought against the museum by VG Bild-Kunst,Germany’s artists’ copyright collecting society, acting on behalf ofEva Beuys who inherited her husband’s intellectual property rightson his death in 1986. The trial ended in September 2010 when theHigher Regional Court in Düsseldorf gave its final judgment 95 confirmingthe claim, and permanently ordering Tischer’s images not tobe exhibited by the museum.Beuys’s 1964 performance was improvised (and therefore had notbeen performed or fixed in a material form via film or tape beforethe live broadcast) and the only record of it is Tischer’s nineteen photographs.Nevertheless, the court appears to have ruled that Beuys’s91. Unreported. The facts of this case considered in this section are drawn from anunauthorised English translation of the judgment: the court’s written judgment in theGerman language was published and handed down September 29, 2010 by the DistrictCourt of Dusseldorf, Chamber: 12 Civil Division, Application Number: 12 O 255/09.92. Joseph Beuys (1921–1986) was a German artist and art theorist, widely recognisedas one of the most influential artists of the 20th century. A progenitor of PerformanceArt in the 1960s, he also created a large body of 2D and 3D artworks and installations.He developed an “extended definition of art” including especially his“social sculpture” aimed at influencing society and politics. The first and only comprehensiveretrospective exhibition of his works during lifetime was at the GuggenheimMuseum, New York in 1979, which sealed his international reputation.93. Manfred Tischer lived from 1925–2008.94. Located within Moyländ Castle, Bedburg-Hau, Germany, Museum SchlossMoyländer holds the world’s largest collection of Beuys’s works (6,000); and is anexample of an increasing number of modern and contemporary art galleries exhibitingrecords/documents of “non-object based” artworks.95. An authorised English translation of the judgment is not available; the court’swritten judgment in the German language was published and handed down September29, 2010 by the District Court of Dusseldorf, Chamber: 12 Civil Division, ApplicationNumber: 12 O 255/09.
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