TWO YOUNG ARTISTS HAVE USED LEGAL CONFIDENTIALITY AGREEMENTS IN THEIR WORK IN THE LAST FEW YEARS. DOES THAT MEAN THAT LAW IS BECOMING AN ART FORM IN ITSELF?

Lawyers love art. They buy it, host client events in galleries, and many firms boast collections. But recent years have seen artists and lawyers come together on diverse projects ­ to the extent that law and lawyers have even become integral parts of artworks. In 2000, Swedish-born artist Anna Livia Löwendahl-Atomic (pictured left) produced a work called A Selection of Interesting Secrets from Various Stages in My Life.

Sixty secrets were detailed in an auction catalogue with prices ranging from £120 for Lot 17: A classic example of its kind. This secret shows obvious signs of  acute embarrassment. Slight fading. Recurring. Uppsala, to £1,300 for Lot 7: A most controversial and serious example previously swept under the carpet. It was only recently discovered deep within the archives of the artist’s memory. Has a strong undercurrent of uncertainty. Incomplete and fragmented throughout. Date unknown, Västerås. ‘I like the idea of selling something that in a material sense does not exist, and in doing so creating an unusual bond between me and the buyer,’ says Löwendahl-Atomic. ‘I’m also interested in how it will affect the buyers’ psyche. Could my secrets become a burden that they might find hard  to keep? Is owning something you can’t reveal the height of exclusiveness or  are you buying the piggy in the bag? These are questions to be considered before signing a contract with me.’

The catalogue includes the terms and conditions  of the confidentiality agreement under which Löwendahl-Atomic agrees to sell  her secrets. Drawn up by Robert Lands, of Finers Stephens Innocent, the non-disclosure agreement (NDA) includes terms such as: ‘You accept and agree that the secrets               disclosed, or to be disclosed to you pursuant to this agreement is, by its nature,  valuable proprietary personal information, the misuse or unauthorised disclosure of which would be likely to cause me considerable and uncompensatable damage.’

‘Anna Livia is the first person as far as I know to make a legal agreement part of art in itself ­ part of the work and not just a background to it,’ Lands tells In Brief. His firm specialises in acting for artists, and was founded when the funding was stopped for Artlaw, a project providing free legal services for artists. ‘The office is full of pieces of art that were given to us in exchange for advice over the years,’ says Lands. He can see no reason why law should not become part of artworks, especially as there is no copyright on ideas. ‘Art is an area where ideas are crucial,’ he says. ‘Copyright often doesn’t protect the idea, it just  protects the expression of the idea. An NDA can be essential to make sure an idea doesn’t get out before you get the chance to exploit it.’ Earlier this year,  the Beck’s Futures Prize featured a non-disclosure agreement in the shortlisted   work by Zambian-born artist Carey Young. ‘The confidentiality agreement used was not in itself the work of art. It merely describes the piece of art, which   was only ever shown to one person ­ the marketing manager of Beck’s beer, who  signed the NDA ­ and after that the work of art was concealed,’ Young explains.   I’ve been aware of confidentiality agreements for several years, largely through my  experience of working part-time within business, but also via having artist residencies in a number of organisations,’ says Young. ‘I’ve been using business and legal ‘logic  structures’ within my own work for some time, largely as a way of examining power structures which seem to be emerging within an information-based economy. Confidentiality  agreements by their nature can be attractive to artists as they deal with similar issues to much artistic practice ­ the notion of the visible versus the concealed, the power of the viewer’s gaze, or the notion of freedom of speech, to name just three.

’ART, MEET LAW‘
Contemporary artists make work bump up against the law in relation to things they want to do to make their work happen, especially now artists are moving away from the conventional notion of art’ says Henry Lydiate.  Lydiate is a non-practising barrister who runs a legal and business consultancy for artists ­ mainly on a pro bono basis ­ as well as being professor of  art law studies at the London Institute of Art and Design. He says works  such as Tracey Emin’s My Bed and Damien Hirst’s The Physical Impossibiltiy of Death in the Mind of Someone Living, step outside traditional artistic formats ­ and cause artists ‘to engage with other aspects of life including the law and commerce.’ ‘Perhaps it is a reaction to the fact that it’s more difficult to do what you want to with images than it used to be, so you are drawn into a legal framework,’ says Rob Grose. Formerly a criminal barrister at 45 Essex Street Chambers, Grose  gave up independent practice to study art and work as an artist. ‘Law is important in making pieces of work happen. Even for something as simple as projecting on to a building or putting something in a gallery you’ve got health and safety to think about. Some art is potentially defamatory. It’s become one of the tools in an artist’s toolbox rather than a construction of art as law or law as art,’ he explains.
US artists Christo and Jeanne-Claude used legal permits as a tool  in their art, which involved wrapping famous landmarks including the Museum  of Contemporary Art in Chicago and the Reichstag in Berlin. In another project, Running Fence  1972-76, Christo and Jeanne-Claude constructed 40km (25m) of fence across land in California. The work included 18 public hearings, three sessions at the Superior Court of California and the drafting of a 450-page environmental report. ‘You can’t just go and wrap up the Reichstag without getting permission from the authorities’, says Lydiate. ‘Running Fence… was deliberately set up to interfere with private rights of occupation ­ they got the right to go across land and install things, using law as a tool in a work that couldn’t happen without the law being used.’ Grose notes that there are two models for using law in art ­ the transgressive and the constructive models. While Christo, Young and Löwendahl-Atomic use  art constructively, artists such as Tom Friedman use it transgressively.  His 1992 piece Hot Balls  was a collection of different-sized, different-coloured balls stolen from  toy shops over two years. In the UK, sculptor Anthony-Noel Kelly was jailed in 1998 for stealing body parts to make sculptures. He was prosecuted under the 1984 Anatomy Act for not showing proper respect for the dead. ‘It reflects the ever-intriguing web and link between law and art and art and law ­ not only the legal aspects of law, but law as an art itself,’ comments Karen Sanig, head of Mishcon de Reya’s art law department.

ART AS CURRENCY
‘If you look at all the pictures in the paper they are owned  by somebody ­ visual stuff is banked, it’s capital,’ says Grose. ‘I think that’s why people are getting more interested in the legal issues around it’. JSG Boggs is an artist who has turned art into currency. He has been prosecuted in several countries including the UK for forging banknotes ­ often realistically but also with subtle humour in texts and portraits. He signs these notes as works of art and then offers them in exchange for goods or services, often receiving real currency as change. He is then followed by a collector who offers to buy  the customised banknote, completing the transaction. In 1987 Boggs was tried at the Old Bailey under the 1981 Forgery and Counterfeiting Act for forging English £10, £5 and £1 notes, which he had hand-drawn with coloured pencils. The jury took 15 minutes to reach a unanimous not guilty verdict.
In other cases progressive  artists  have gone through the courts to prove that their work really is art. In 1877,  English artist James Whistler sued art critic John Ruskin for defamation, after Ruskin denounced Whistler’s near-abstract painting Nocturne in Black  and Gold: The Falling Rocket of 1875 in an art journal. ‘I have seen, and  heard, much of cockney impudence; but never expected to hear a coxcomb ask two hundred guineas    for flinging a pot of paint in the public’s face,’ Ruskin wrote of the painting. The case came to trial in 1878 and the court found in favour of Whistler ­ but  awarded him just a farthing in damages and no costs, leaving him financially  devastated. In 1926, when Romanian sculptor Constantin Brancusi tried to  import his sculpture Bird in Space to New York from France, customs officials  refused to recognise it as art and exempt from customs duty. Labelling the sculpture  a ‘kitchen utensil’, they imposed a tariff worth more than £1,500 in today’s  money. The following year customs officials ruled that all Brancusi’s sculptures would be subject to similar duties if sold in the US ­ so Brancusi admirer Edward Steichen filed the lawsuit Brancusi v United States to challenge their  decision. During the trial, which lasted more than a year, Brancusi and his supportershad to prove that the work was an original, with no purpose other than art. In November 1928 Judge Waite ruled in favour of Brancusi, saying the Bird ‘is in fact a a work of art according to the authorities. We sustain the protest and  find that it is entitled to free entry.’
‘Even though it was soon to be considered  one of the most important and influential works of modern art, the law at  that point did not recognise it as anything other than a lump of metal on which huge duties could be imposed,’ says Young. ‘The success of Brancusi created a new legal precedent for what ‘art’ might be, and what materials it might be made from. Moving forward to today, legal frameworks are obviously a major,  embedded  part of globalisation and I believe it’s important for artists to investigate and question these new logic structures,’ she says. ‘I don’t see law and  art as fundamentally different in the first place,’ comments Grose. ‘What is interesting about law from my point of view is that it is a system of rules with more exceptions  than rules. When big ideas come into conflict with one another it is usually because society is developing using old tools to respond to new situations, and really good art does the same thing. ‘A really good piece of art would maybe be like a court of appeal case,’ he continues. ‘It raises big enough questions for it to be re-reasoned and for whole areas of the law to be re-modelled  in order to accommodate new pieces of technology which didn’t exist when we were drafting the laws.’

Where art meets law…

Carey Young - used a non-disclosureagreement to conceal her entry to the 2003 Beck’s Futures Prize competition

Anna Livia Löwendahl-Atomic - used an NDA to protect secrets she sold to the highest bidder in her work A Selection of Interesting Secrets  from Various Stages in My Life, 2000   

Anthony-Noel Kelly - jailed in 1998 for stealing body parts to use in his sculptures
Tom Friedman - stole balls from toy shops for his 1992 work Hot                

Balls JSG Boggs - was tried at the Old Bailey in 1987 for producing counterfeit English banknotes as art. The jury found him not guilty.  

 Christo - went through legal procedures to gain permits for his works                 wrapping famous landmarks from the 1960s onwards

…and law meets art.
            A selection of law firms who specialise in representing artists
            Finers Stephens Innocent
            Mishcon de Reya
            Withers
            Denton Wilde Sapte
            Farrer & Co
            Lane & Partners

© 2003 Christine Boggis