The resurgence of performance-related artistic practices over the past decade raises complex aesthetic, legal and, at times, ethical questions regarding the protection, authorship and ownership of the 'works' generated through these artistic practices.
The relevance of these questions can be linked to the recent revival of interest in performance art from the 1960s and 70s and the growth in the market for artistic performances through their film, video and photographic documentation as distributed and sold in the form of unique or limited-edition artworks. It is now common to see such documentation for sale at galleries, art fairs and auctions, often for substantial prices.
This revival has also engendered reflection on whether it is possible to restage earlier performance and conceptual artworks, in the main originally intended to be ephemeral, and whether such works might be preserved in the form of choreographic instructions in the future. Marina Abramovic has explored these questions through her solo performances in New York at the Guggenheim and the Museum of Modern Art. In Seven Easy Pieces, 2005, Abramovic reenacted seven iconic performances by other artists (with the prior consent of the artists or their estates), including Joseph Beuys's How to Explain Pictures to a Dead Hare, ^65. In 'The Artist is Present' exhibition of 20i0, Abramovic instructed others to re-perform earlier pieces she had made in collaboration with her former partner, Ulay (Uwe Layspien), which included re-performing Imponderabilia, 1977, by recasting the performers as a naked male and female standing immobile in the frame of a gallery doorway through which spectators had to pass.
Of equal importance to this resurgence has been the development of performance-related practices, whose model lies in the artist creating and delegating 'performative' instructions to others to perform in the absence of the artist. This paradigm is reflected in the work of various artists including La Ribot (Maria Ribot) and is epitomised by Tino Sehgal's so-called 'constructed situations' that require the enactment of his choreographic instructions and scripted speech by performers--or 'interpreters'--approved and trained by the artist. Sehgal's constructed situations are enacted in real time and in interaction with an audience inside a museum or a gallery, for instance during his solo exhibition at the Guggenheim, New York, in 20i0. In contrast to ephemeral works of performance art, Sehgal's works are exhibited, like other exhibits found in a gallery or a museum, during the entire opening times of the exhibition's duration.
The dematerialisation of artwork articulated in performance-related art raises complex legal issues as to how artists/performers define the 'work', and in particular control its performance and documentation by others. It also raises complex questions concerning legal recognition of authorship of the performance work and legal protection against plagiarism. Finally, it raises questions as to who has legal rights to control the (re-)performance of the work after an artist/ performer has transferred ownership of the rights in it--particularly after the artist's death. Given these questions, it is unsurprising that artists increasingly look to lawyers for answers.
There are three key facets that in particular need to be considered: protection, ownership and authorship. As will be seen, legal recognition of performance-related art practices is problematic. Performance-related art encompasses an array of open-ended artistic actions/practices which defy established legal categorisation and border on many disciplines and practices, including dance, film, theatre and installation. There is no coherent cultural definition of performance art. In effect, virtually any action performed by an artist or by others instructed by an artist can be termed an artistic performance. The lack of materiality inherent in the open-ended and process-based approach of performance-related art (Artlaw AM346) is problematic because the law, particularly intellectual property law, recognises creative works through traditional categories, and techniques and forms that are rigid and largely alien to performance-related practices; it requires creative works to be fixed in a material form. …