What is Art? - Southwestern Law School

132 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2entire performance—though transient and unfixed—was an artworkentitled to copyright and moral rights protection, and that the exhibitionof Tischer’s freeze-frame-like images was an unlawful adaptationof the entire work of Performance Art. 96From an unauthorised English translation of the judgment andmedia reports 97 of the case, the court’s reasoning appears to includethe following findings:• circumstantial evidence in the form of an assessment by expertscan prove the existence of an entire performance, from whichthe court could gain an overall impression and find that an intellectualcreation of the artist was made;• improvised actions are protected by copyright when they reachthe required threshold of originality;• the essence of this art form would be frustrated if art activitieswere denied the status of art on the grounds that they were essentiallybased on improvisation;• German copyright law allows new forms of art beyond the boundariesof traditional art forms to be protected, and such protectioncovers the work as a whole;• it is not necessary for a work to be recorded permanently so that itis capable of being reproduced;• the entire performance lasted at least 20 minutes: the 19 photographsare only snapshots of the work and, thereby, transform adynamic art process into stasis;• the museum exploited an adaptation of the entire performance,without permission of the legal successor to the creator, andwas contrary to copyright law. 98The court’s judgment was unprecedented—not only in Germany,but worldwide—in holding that unrecorded/undocumented/unfixedPerformance Art is capable of being protected by copyright and moralrights laws. Equally significant was the court’s demonstrable understandingand embracing of an avant-garde contemporary art form that96. Performance Art events are essentially transient, often though not always improvised,and infrequently scripted or recorded. In recent times, Performance Artevents and projects have been scripted and/or recorded by the artist/performer/author,which not only helps to meet the ‘fixation’ requirement of intellectual property rightslaws but also enables such secondary ‘documents’ to be sold by the artist in the artmarket place.97. See The Art Newspaper, Nov. 2010, at 13.98. The trial court’s judgement is subject to appeal by the Museum at the time ofwriting, and is expected to be heard during 2012.