TABLE OF CONTENTS

PRINT May 2019

DUE PROCESSES

GOOGLE NGRAM tells us that litigation enjoyed a dramatic spike in popularity in English-language publications beginning in 1969, roughly when copyright, cultural property, and environmental law started to proliferate as well. Art law first appears somewhat later, in 1972, a year when art markets boomed and artists questioned the nature and value of their labor. Legal scholars such as John Henry Merryman took note of these shifts. Together with art historian Albert E. Elsen and attorney Stephen K. Urice, Merryman forwarded a provocative argument in the 1979 casebook Law, Ethics and the Visual Arts: Far from being simply another high-priced object in the market—equivalent to an antique or collectible piece of jewelry—the visual artwork, when seen through the prism of the law, raises numerous ethical points that put pressure on the scope and capacities of the legal system.

What law was and what artists could do with its structures, customs, and materials concurrently assumed new relevance. In 1974, Suzanne Lacy worked with an attorney to draft a fourteen-page contract granting a prospective buyer the right to take possession of the artist’s organs upon her death. Titled Body Contract, it was a striking reclamation of personal rights to the body formulated barely a year after Roe v. Wade. Lacy’s own references, however, pivoted largely on legislation and news items concerning the sale of organs, which attracted its own share of heated controversy in the early 1970s.1 California, the jurisdiction to which Lacy and Body Contract were subject, saw innumerable newspaper advertisements placed by those selling organs to pay for health care. By turning to the contract, a species of documentation associated with the expression of free will, Lacy underscored her personal volition at a time when women’s bodies were still mostly recognized as forms of property—and when women accounted for only 8 percent of all practicing lawyers in the US. Yet the pricing of body parts cannily resonated with the push toward deregulation, as well as the attendant move toward subjecting bodies to regimes of quantification, monetization, and exchange. Body Contract addressed how individuals sold organs and other body parts for cash, and then used the proceeds to finance health care for their relatives.2 Although it was legal for living persons to sell nonvital organs—some legal scholars described the practice as “inevitable” in light of growing demand—the monetization of body parts raised the concern that individuals might be coerced into sacrificing their health for pecuniary gain.3

Adelita Husni-Bey, White Paper: The Law, 2015, six silk-screen posters  with colored pencil on cotton rag. Installation view, Centro de Arte Dos de Mayo, Móstoles, Spain, 2016. Photo: Andres Arranz.

The contract itself was modeled loosely on a revised version of “The Artist’s Reserved Rights Transfer and Sale Agreement,” a document coauthored in 1971 by curator and dealer Seth Siegelaub and lawyer Robert Projansky and famous for its much-debated provision reserving 15 percent of resale profits for the artist. Lacy in her contract priced out twenty-six of her body parts, each of which was listed in the agreement; in an unintended allusion to Roe v. Wade, she valued a single ovary at two hundred dollars. But the legally binding contract was more than a metaphor for the monetization of bodies; it also made the susceptibility of bodies more visible to non-art audiences and, in theory, to viewers qualified to put this matter forward for juridical consideration. Certainly, Body Contract illuminated the searing contradictions of a legal system that allowed the sale of nonvital organs via contract while making it difficult to obtain the kind of health care that might reduce the need for such sales in the first place.

Body Contract aligned with Conceptualism’s turn toward instructions and other forms of textual documentation that read, if not sounded, like the language of law. Consider, for instance, the “Concept Tableaux,” 1963–67, of Ed Kienholz, or how certificates of authenticity for Sol LeWitt drawings read increasingly like contractual obligations. Lacy’s work was among the first to emphasize how the intersection of art and law could become politically charged in ways beyond the register of cultural patrimony, freedom of expression, or labor rights for artists. By raising a host of justiciable issues, it foregrounded the ways in which contemporary art actively generates unforeseen situations that the law overlooks or fails to predict. Body Contract called fresh attention to a new strain of avant-garde practice, one overlapping with legal debates and theories that threw into sharp relief art’s greater social purchase and function. By reaffirming the viewer’s role as a participant in a specific polity, artists broadened the remit of socially minded artworks to include the materials, ideas, and doctrines of law, and, in some instances, to forge new zones of legal mediation.4 Works such as Body Contract may not have had any practical legal consequences, but the missing threads, dead ends, and losing battles they encompass imparted a sense of direction that enriched art’s claims to its own integrity in a political landscape denuded of it.

Kristin Lucas, Refresh (detail), 2007, newspaper announcement from a mixed-media work additionally comprising two graphite drawings by Joe McKay, two court transcripts, and a name-change decree, dimensions variable.

IN THE ’70s, as artists began to more deliberately and intensely blur distinctions between art and the so-called everyday, law became art’s present, operating as its surround. An increasing number of works used existing law to expand more concretely on what was possible, thereby making law art’s silent partner. For her 12839 Washington Boulevard (at Beethoven), Los Angeles, California (commonly referred to as Washington and Beethoven), 1979, Maria Nordman reconfigured closed, private property into porous, semipublic space. Given the voluminous regulation to which the urban landscape is ordinarily subject, such a transformation should be, as geographer Nicholas Blomley points out, “no easy task.”5 Yet Nordman, who received sponsorship from the now-defunct Los Angeles Institute of Contemporary Art, was able to effect these changes via the sphere of art. She rented an unoccupied storefront, painted it white, and made the empty space available to the public free of charge, twenty-four hours a day. She also fronted the property with a filtered-glass wall that, during the day, allowed anyone inside the storefront to see outside but prevented passersby from seeing into it. After dark, one could see through the glass in both directions. The space could be entered like any other gallery during standard business hours, but at night was accessible only through a key obtained from a nearby delicatessen.6

In the ’70s, as artists began to more deliberately and intensely blur distinctions between art and the so-called everyday, law became art’s present, operating as its surround.

The contingency of physical egress may have been the work’s most enduring theme. Nordman’s project required merging one public (the relatively circumscribed audience aware of how Washington and Beethoven operated) with another (namely, those who lived and worked in proximity to the space). Through the ritual associated with private ownership—the act of opening and locking the door of one’s business or home with a single key—she inverted assumptions regarding the nature of property as a force of exclusion; she used her rights as a tenant to include others. The in-betweenness of this space dismantled the starkness of a property discourse that treats being public as largely antagonistic to the condition of being private.

Jeff Koons, String of Puppies, 1988, polychromed wood, 42 × 62 × 37".

Over the course of the ’80s and ’90s, art law became synonymous with high-profile court cases involving copyright infringement, à la Jeff Koons’s appropriation of another artist’s photograph, or First Amendment challenges, à la the denial of federal funding to performance artist Karen Finley. Less spectacular but more poignant was law through art, or artistic engagements that shed new light on law as theory and practice. In the early ’90s, Carrie Mae Weems gained access to daguerreotypes of enslaved black people in the collection of the Peabody Museum of Archaeology & Ethnography at Harvard University. Taken in 1850 by J. T. Zealy at the behest of the well-known Harvard ethnologist Louis Agassiz, but without the express consent of the subjects, these photographs became the basis for Weems’s celebrated 1995–96 series “From Here I Saw What Happened and I Cried.” However, to create these works, Weems had to violate the agreement she had signed in order to gain access to the images; in response, Harvard threatened her with a lawsuit.7 The specter of the world’s richest university taking the unusually draconian step of suing an individual artist offered an illustration of copyright and contract law’s capacity to be weaponized by parties reluctant to bear uncomfortable scrutiny, or in Weems’s case, their complicity in a morally flawed project of image-making. In 2001, Harvard bought works from this very series—in an attempt, seemingly, to neutralize Weems’s act of reclamation by turning it into an object of possession. Weems’s violation of Harvard’s terms, along with her subsequent refusal to bow to university demands, echoes Adorno’s call for vital antagonism: Disruption like hers is needed to imagine a more just future. Earlier this year, a complaint filed on behalf of Tamara Lanier, an alleged descendant of one of Agassiz’s subjects, cited Weems’s interaction with Harvard as evidence of the images’ problematic status. Weems’s inquiry and response became not only a useful precedent for Lanier, but also an open invitation to revisit copyright law through a reparative lens.

With Naming Rights, 2017, Gala Porras-Kim highlights the imbrication of art and institutions, a history in which acts of personal agency must negotiate ossified structural forces that are difficult to reverse or even challenge. Taking the form of a Microsoft Word document, the piece, which was displayed at the Lasalle College of the Arts in Singapore this past February, is a heavily annotated letter addressed to the Los Angeles County Museum of Art asking how collections are named and about the relationship of names to ownership. Resembling markups on a client brief, the annotations that serve as the letter’s running subtext belong to the trajectory set forth by Body Contract, where legal ideas and forms expand the variety of attention an artwork might command. The annotations in Naming Rights include the suggestion that collectors be considered temporary “stewards” rather than owners of objects—thus underlining the fact that the objects’ value is more than simply monetary—as well as speculation as to whether museums should focus on the “context in which they [the works] were made or everything else that happened to it after.” In asking whether a collection should be named after an individual whose primary connection to the objects in it was acquisition, sometimes involving morally opaque circumstances, Porras-Kim indirectly nods to recent efforts by legal scholars such as Linda Sugin urging Congress to regulate naming rights.8

Gala Porras-Kim, Naming Rights, 2017, Microsoft Word document, dimensions variable.

The letter consequently serves as an evidential record. Porras-Kim produced Naming Rights in parallel to a group of drawings, also 2017, based on photographs of the Proctor Stafford collection of ceramic vessels and figurines from West Mexico at lacma. Marshaled onto horizontal shelves, the arrangement of Proctor Stafford objects in Porras-Kim’s work resembles William Henry Fox Talbot’s “shelves bearing ‘articles of china,’” an image Allan Sekula once cited when describing photography’s potential to “claim the legal status of a visual document of ownership.”9 But in contrast to the lifeless array in Talbot’s famous image, the lacma objects appear curiously animated, happy to commune among themselves sans human intervention. The earth-toned rainbow of hues, from deep salmon to gilt bronze, are too plainly joyful to be properly forensic or even celebratory. The vibrancy of colors contrasts starkly with the tendency of museums to immobilize objects by acquiring them, by submitting them to legal and institutional norms, and, finally, by photographing them in splendid quarantine, usually against a dark background.

Exhibit from Cady Noland v. Galerie Michael Janssen et al. regarding the restoration of Noland’s ca. 1990 sculpture Log Cabin Façade.

Drawing, moreover, has its own duration, which attaches maker and subject in a way that opens onto a different sociality. Porras-Kim’s time-consuming act of reproducing the images with pencil crystallizes the encounter between the artist, the objects, and the lives the objects have touched and continue to touch. It does not persuade, but does something better by motivating us to imagine. Literature scholar Lorna Hutson asserts that “the assumption that literature’s imaginative reality for lawyers depends precisely on its lack of ‘reality’ in the sense of legal efficacy or consequence.”10 While an increasing number of artists engage in activities that have real legal impact—the numerous legal claims Cady Noland has made to disown unauthorized alterations to her work are a resounding example—the lasting import of contemporary art’s intersection with law may be the space it creates for viewers to speculate on how best to narrow the sometimes gaping chasm between law and justice. 

Kristin Lucas, Refresh (detail), 2007, graphite drawing by Joe McKay from a mixed-media work additionally comprising a newspaper announcement, a second graphite drawing by McKay, two court transcripts, and a name-change decree, dimensions variable.

CAN ARTISTIC RHETORIC shape the legal imagination? The question was put forth in Kristin Lucas’s encounter with the Alameda County Superior Court in Northern California. Over the course of two hearings in the fall of 2007, Lucas was able to successfully persuade the presiding judge, Frank Roesch, to affirm her request for a name change. Rather than opt for a different name, Kristin Sue Lucas had asked to change her name to Kristin Sue Lucas. What might be considered a nonevent was for the artist an attempt to publicly “refresh” herself. Lucas displayed and later performed the transcripts of the hearings as part of a series called “Refresh Cold Reads,” 2007–13. At issue was not so much persuasion as an opportunity to negotiate the procedures each party regarded as authoritative. The first hearing initially turned on Lucas acknowledging law (“the system”) as a legitimating force, a force she needed to recognize her own changing self. The judge demurred, saying that he did not know whether “he had the legal authority to change your name when it’s not a change.” Nevertheless, Roesch ended up granting Lucas’s request, likely because she based it on an analogy, a type of comparison deeply entrenched in juridical reasoning. Despite his lingering bafflement, the judge came to understand Lucas’s logic: The change was like “refreshing yourself as though you were a web page.”

Weems’s violation of Harvard’s terms, along with her subsequent refusal to bow to university demands, echoes Adorno’s call for vital antagonism: Disruption like hers is needed to imagine a more just future.

More than a line item in a docket, or a stock narrative of artistic fancy meets juridical cluelessness, the transcript reads as a parable for the necessity of dissensus. I wonder if this is what prompted Roesch to tarry on Lucas’s request a bit longer than was strictly necessary, even doing “legal research,” presumably on his own time. Was it that he understood the production of dissident affect as essential to law’s dynamism? Or did Lucas’s request indirectly remind him that the “professional life of the lawyer and judge constitute an enterprise of the imagination”—one that turns on “the translation of the imagination into reality by the power of language,” as legal scholar James Boyd White points out?11 That Lucas organized performances of the transcript like a teleplay or script is not surprising, for although the format of the legal transcript primes us to read language as an inventory of verifiable statements, the content becomes most intelligible through what is not spelled out for the record. Refresh encourages audiences to read legal documents as if they were literary works or, in this case, performed scripts. Doing so gets us thinking more intently about how law functions through nonverbal operations of sensing and affect, such as those expressed in the somatic interplay between petitioner and judge. 

One might trace a history of contemporary art based on the ways in which changing legal definitions of consent, intention, possession, and faith (both bad and good) shape artistic practice. Adelita Husni-Bey proposes the inverse: She demonstrates the ways in which artistic strategies such as performance, sonority, and gesture shape the practice of law. The highlight of her exhibition “Chiron,” 2019—on view at the New Museum, New York, through May 5—is a roughly eighteen-minute video, made last year and bearing the same title, that records a project she undertook with a group of lawyers who provide free legal representation to undocumented immigrants in New York. Emphasizing the importance of emotional life to the law, the work centered on the idea of emotional depletion, or compassion fatigue, a common affliction for social workers, public defenders, and others tasked with continually safeguarding, caring for, or negotiating on behalf of society’s most vulnerable. Husni-Bey developed a short handbook with healing exercises including role-playing, engaging in brief physical interaction, and, occasionally, articulating feelings as guttural noise. More intensely intimate than her 2015 work White Paper: The Law, which included public meetings involving nonlegislators to help brainstorm and draft a legally binding agreement on housing that acknowledges the claims of squatters, Chiron interweaves lingering close-ups of the attorneys’ faces with other images of lawyers carrying out the instructions Husni-Bey issues. Such shots help recuperate the plurality of bodies and feelings involved in law’s operation. As philosopher Brian Orend notes, if human rights are inextricable from supplying people what they vitally need to function as human beings, then Chiron emphasizes that human-rights legal practice includes at least some reflection on what it means to feel.12

Chiron helps us think of how law extends beyond not only regulation but also an approach to politics centered on organizational and managerial functions. The site of learning Husni-Bey created becomes a factory of affect whose unruliness dislodges law’s claims to omniscience and impartiality. If “a legal system expresses the values and attitudes of a culture,” as Merryman observed in recollecting his first art-law course, it follows that culture may be judged in part by how artists hold such values to account.13 We might ask how art could serve as a model of thinking about the relationship of law to justice, thus posing a question that figures prominently in working through if and how the law might allow a life of integrity, a question we ignore at our collective peril. 

Joan Kee is Associate Professor in the History of Art at the University of Michigan and a contributing editor to Artforum. Her latest book is Models of Integrity: Art and Law in Post-Sixties America (University of California Press, 2019).

 

NOTES

1. One of the articles Lacy later consulted opened with a quote by the birth-control advocate Margaret Sanger: “A woman must be absolute mistress of her own body, with the right to dispose of herself or withhold herself.” Charlotte Hutchison, “Your Cornea and Kidney Can Outlive You,” Ms., April 1977, 95.

2. Jesse Dukeminier Jr., “Supplying Organs for Transplantation,” Michigan Law Review 68, no. 5 (April 1970): 811. At least one advertisement in California featured a man willing to sell “any portion of body.”

3. “The Sale of Human Body Parts,” Michigan Law Review 72, no. 6 (May 1974): 1217, 1219. The law also participates in the monetization of body parts; a judge in Kentucky gave traffic violators the option to pay fines in blood.

4. Another example might be Yoko Ono’s 1969 film Film No. 5 (Rape or Chase), which reads as a searing argument for the damage caused by persistent following decades before stalking was criminalized in Anglo-American jurisdictions. Joan Kee, “Art Chasing Law: The Case of Yoko Ono’s Rape,” Law and Literature 28, no. 2 (2016): 187–208.

5. Nicholas Blomley, “Cuts, Flows and the Geography of Property,” Law, Culture and the Humanities 7, no. 2 (June 2011): 215.

6. Wade Saunders, “Maria Nordman on Washington Boulevard, Los Angeles,” Art in America, December 1979, 120.

7. Should Weems’s violation of her contract with Harvard be considered as part of her work, the most incisive review may be legal scholar Yxta Maya Murray’s hypothetical adjudication of Harvard’s claims. Making an implicit case for legal analysis as art criticism, Murray notes that if the photographs were not published until the 1970s, when they were acquired by Harvard, then a court, under current law, would hold the photographs’ copyright as university property. However, Congress did not in fact extend copyright protection to photographs until 1865, fifteen years after the daguerreotypes were made. Yxta Maya Murray, “From Here I Saw What Happened and I Cried: Carrie Mae Weems’ Challenge to the Harvard Archive,” Unbound: Harvard Journal of the Legal Left 8, no. 1 (2012–13): 25.

8. Linda Sugin, for example, argues that philanthropists should be encouraged to surrender naming rights in order to create new expectations of a “competitive philanthropy” that would lead to greater and more frequent donations to charity. Linda Sugin, “Competitive Philanthropy: Charitable Naming Rights, Inequality, and Social Norms,” Ohio State Law Journal 79, no. 1 (2018): 1–54.

9. Allan Sekula, “The Body and the Archive,” October, no. 39 (Winter 1986): 6.

10. Lorna Hutson, “Proof and Probability: Law, Imagination, and the Forms of Things Unknown,” in New Directions in Law and Literature, ed. Elizabeth S. Anker and Bernadette Meyler (Oxford, UK: Oxford University Press, 2017), 145–56.

11. James Boyd White, The Legal Imagination (Chicago: University of Chicago Press, 1985), 208. First published in 1973.

12. Brian Orend, Human Rights: Concept and Context (New York: Broadview Press, 2002), 64.

13. John Henry Merryman, “Art and the Law: Part I: A Course in Art and the Law,” Art Journal 34, no. 4 (Summer 1975): 332.