In 1964 Joseph Beuys gave an improvised 30-minute performance broadcast live on Germany's second public television channel ZDF (Zweites Deutsches Fernsehen), which he called Marcel Duchamp's Silence Is Overrated. The performance was not taped but Beuys allowed his associate and renowned art documenter Manfred Tischer (1925-2008) to photograph it. Tischer's 19 photographs are the only record of Beuys's unique live performance; they remained unpublished until 2008 when they were exhibited at the Museum Schloss Moylander (located within Moyland Castle, Bedburg-Hau, Germany) which holds the world's largest collection of Beuys works. Last year that exhibition was abruptly curtailed by a temporary court order requiring the photographs to be taken down, pending a full trial of a legal claim that the images violated Beuys's intellectual property rights.
The lawsuit was brought against the museum by VG Bild-Kunst, Germany's artists' copyright collecting society, acting on behalf of Eva Beuys, who inherited her husband's copyrights on his death in 1986. The trial ended in September 2010 when the Higher Regional Court in Dusseldorf gave its final judgment confirming the claim and permanently ordering Tischer's images not to be exhibited by the museum.
In most countries, including the UK, original works of creative artists (of all kinds--composers, writers, filmmakers, choreographers, visual artists and so on) qualify for copyright protection only if they are fixed in a material form (such as sound recordings, manuscripts, films or videos, and physically manifest visual artworks). Beuys's 1964 performance was improvised (and therefore had not been performed or fixed in a material form via film or tape before the live broadcast) and the only record of it is Tischer's 19 photographs. Nevertheless, the court appears to have ruled that Beuys's entire performance--though transient and unfixed--was an artwork entitled to copyright and moral rights protection, and that the exhibition of Tischer's 19 freeze-frame-like photographs was an unlawful adaptation of the entire work of performance art.
The court's decision has been hailed as a landmark because it made an unprecedented ruling--not only in Germany, but worldwide--that unrecorded/undocumented performance art is capable of being protected by copyright and moral rights laws. An authorised English translation of the judgment is not yet available, but media reports of the court's reasoning appear to include the following.
Circumstantial evidence in the form of an assessment by experts can prove the existence of an entire performance, from which the court could gain an overall impression and find that an intellectual creation of the artist was made. Improvised actions are protected by copyright when they reach the required threshold of originality. The essence of this artform would be frustrated if art activities were denied the status of art on the grounds that they were essentially based on improvisation. German copyright law allows new forms of art beyond the boundaries of traditional artforms to be protected, and such protection covers the work as a whole. It is not necessary for a work to be recorded permanently so that it is capable of being reproduced. The entire performance lasted at least 20 minutes; the 19 photographs are only snapshots of the work and, thereby, transform a dynamic art process into stasis. The museum exploited an adaptation of the entire performance, without permission of the legal successor to the creator, and was contrary to copyright law.
Since the development of machines and technology to record and reproduce sounds and moving images towards the end of the 19th century, intellectual property laws were introduced and developed throughout the 20th century to give intellectual property rights to public performers of music, drama, dance or literature: conventionally known as the performing arts. Such …