death of daubism

The case against the introduction of moral rights
publication: The Arts Law Centre of Australia
by: Manne schulze
date: December, 1997

Australia is in the process of adopting moral rights legislation for the visual arts which is expected to be introduced by mid-1998. The following analysis explains why the ideas behind the proposed legislation are anachronistic. A major reason for the current push for moral rights legislation reform was the 1991 court case between driller Jet Armstrong and Charles Bannon over an artwork exhibited in the first Daubist exhibition. Using this example it will be argued that the recommended amendments, while giving negligible protection to the work of a few artists, generally would be counterproductive and restrictive for contemporary art practice. It needs to be emphasised that the following refers only to the visual arts and not to the arts in general, although parts of it could be considered relevant for other areas.

HISTORIC BACKGROUND OF MORAL RIGHTS PROTECTION

Copyright legislation was adopted at the Berne Convention on Literary and Artistic Works in 1886 an amended in the Rome Act of 1928 to protect the moral rights of artists. This means that the economic rights over a work of art which, for example, change in a sale, were separated from the personal intellectual property rights which were to stay with an artist even after his or her death. The most relevant provision of the Rome Act is contained in Article 6bis: “Independently of the author’s economic rights, the author shall have the right to object to any distortion, mutilation or other modification, or other derogatory action in relation to the said work, which would be prejudicial to his honour or reputation.”

However, as the current laws in general already give the required “adequate and effective protection”, the representatives of the common law countries including Australia have so far resisted the introduction of moral rights. In 1988, Australia’s Copyright Law Review Committee released its Report on Moral Rights in which a majority of five of the nine members recommended that no legislation conferring moral rights on authors should be enacted. The main reasons stated were: the enactment would give rise to a number of practical problems; the theoretical basis for moral rights in a common law system had not been identified; and few important moral rights violations occur in Australia.

THE ORIGIN OF THE DAUBIST SPECIES

Enter Daubism: in 1991, four Adelaide visual artist, driller Jet Armstrong, Chris Gaston, Andy P and the author of this article, set out to investigate the role of idealised landscape paintings in contemporary art. Two of us, driller and myself, re-used the work of other people as a basis for this analysis in much the same way as lots of artists recycle all sorts of found objects and ready-mades. This is not only a legitimate method, but almost necessitated by current art theory, as we will see later. Referring to the often sloppy and standardised techniques used in landscape painting, the resulting group exhibition was called “Daubism”. But all hell broke loose when Charles Bannon, the “author” of one of the original paintings, took offence at his work being re-used as a back-drop for some centrally placed crop circles by driller, and, with the backing of his son, the then premier of South Australia, sought an injunction to prevent the work from being exhibited or sold.

Suddenly Australia had what appeared to be an incident of serious moral rights violation. The ensuing media frenzy shifted the focus even further away from the intended analysis of the significance of landscape painting in the postmodern world. The act of recycling the work of one artist by another was portrayed as cultural vandalism, and the symbolic meaning of over-painting the work of art in question was interpreted as a personal attack against not only Charles Bannon, but the whole first family and even the integrity of the South Australian government. The case was eventually settled out of court, which left the basic questions unanswered about what makes art art and the role of the original in this process. It is very unlikely, however, that court proceedings would have led to satisfying philosophical answers, even if they had yielded a definitive legal conclusion.

JUST WHAT IS IT THAT MAKES ART ART?

Instead of providing a prime example of why Australia needs moral rights legislation in the visual arts, the Daubism/Bannon incident rather shows how misguided legislators can be once they tread on an area, as simplistic as it might seem, of which they have only superficial knowledge.

Postmodern art theory has spawned, and has tried to make sense (or nonsense) of, the vast field of ideas, activities and visuals that form contemporary art, but has thrown up about as many new questions as it has answered old ones. One longstanding problem is that it is virtually impossible to define art. This question was first approached in a practical way in 1917 by the daddy of concept art, Marcel Duchamp, when he exhibited a urinal as a ready-made piece of art. He also scribbled a goatee, a moustache and an obscene French pun on a postcard reproduction of the Mona Lisa. “This was a shot against perceived attitudes towards art; it violated the most famous of all masterpieces, contradicting the idea of the sanctity of art. It swore against good taste – or any taste”

In the 1960s, similar questions were asked again, and artists left the protective context of the gallery to experiment with environments and land art. Concepts, actions and performances became household names. Some, notably Asger Jorn, from Denmark, began to paint over other peoples’ paintings on a casual basis.

Daubism needs to be seen in this tradition of inquisitive investigation into the very nature of art. The Daubist act of over-painting, or more generally, the reusing and recycling of originals sits comfortably with this analysis. It is a neutral and clinical process which does not intend to ridicule or “deface” the original (although the appearance of the original might be changed in the process), or tarnish the honour and reputation of the author of the original. The perceived violation of moral rights happens only in the minds of overly protective “creators” and viewers unfamiliar with the concept. Instead of being an act of philistinism, the Daubist principle has been and still is to embrace original material which would not have seen the inside of an art gallery under normal circumstances and, by re-contextualising it, to lift it to a new plane so it can be appreciated from a fresh point of view. Daubism creates the new by using the old.

THE PHILOSOPHICAL BASIS OF MORAL RIGHTS

Most legal commentators on moral rights take pride in mentioning, in an anecdotal way, the social and philosophical backgrounds of the Rome Act: the French Revolution of 1789 and its ideas of a fair go for everybody; the intellectual meanderings of the German Idealists Kant, Hegel and Schopenhauer; and the special relationship between the artist and his work, as expressed by Pollaud-Dulian: “The French law protects the work as the author’s personality. It is his [sic] sensibility, his talent, his soul, and thus himself that he expresses in his work. This close bond between the person of the author and his work is embodied and protected in the moral right.”

Given the right intention and circumstance, anything can be labelled art. For example, as an artist I hereby declare the black hole at the centre of our Milky Way a work of space art. My work of space art, actually. That I can’t be there for the opening bash is a pity, but what counts is the idea. How come nobody else has thought of it before?

But seriously, no philosophy can possibly define art. According to Kant, not the content, but only the form of our experience of an external world is given a priori. So, extending Kant’s reasoning we are unable to distinguish art from non-art, as objects are interpreted in different ways by different people. Where one person sees art, another person sees junk. This is confirmed by Wittgenstein (of the Neo-positivist school) who asserts in his Tractatus Logico-Philosophicus that, while the laws of logic exist a priori, any conclusions are empty and meaningless.

As insightful as the treatises of Kant, Hegel and Schopenhauer might be, they hardly can be claimed to represent an absolute truth or to be of major significance for today’s art practice. This must have been obvious to the Review Committee’s majority when they declared themselves unable to identify a theoretical basis for moral rights. So how come protagonists of moral rights still mention these 18th and early 19th- century philosophers, as if some of their noble and well-intended ideas automatically necessitate moral rights?

Kant and Hegel, as Idealist philosophers, put mind above matter. They thought that the objects of external perception consist of ideas, whether in themselves or as they are perceived. It is ideas which allow people to manifest themselves. Referring to Plato, Hegel called these creative thought processes the demiurge, and the artist became the stereotypical messenger of these ideas and thus the archetypal creator. As for Schopenhauer, it is more than strange that the pessimistic thoughts of a declared misogynist who shared his existence with a poodle should be used as the basis for legislation.

The musings which moved the artist to centre-stage need to be seen in line with the dramatic and often violent social changes which occurred around the time of the French revolution: the patronage of church and nobility was largely replaced by that of the middle classes and the state, with artists taking an active role in these changes. No longer did they have to glorify the actions of the aristocracy and the church, but instead developed their own utopian future (Jacques-Louis David) or started to depict an ideal harmony of society in allegorical scenes from real life. “Painting”, claimed Gustave Courbet, “is an essentially concrete art, and can consist only of the presentation of real and existing things.“ By the mid-19th century Baudelaire defined the painter as a “faceless man in the crowd, a dandy, aloof and uncommitted, yet with the clear unprejudiced vision of a child.”

THE MYTH OF THE SANCTITY OF ART The notions of the artist as a sublime creator and his/her art being sacrosanct, as well as the still prevalent pseudo-religious veneration and relic-like treatment awarded to some art objects, can be traced back to this social conditioning. This idealised image of artists and their work is still part of our collective subconscious, but could not be further from reality. Today’s professional capitalist artists are entrepreneurs who have to create their own markets. Instead of being social commentators and instigators of social change, they and their work are mostly used to illustrate fashions and trends. Being an artist has become a job like any other job. The supposed special gift of the artist and the clear lines that once separated “genius” and “true” art from craft, design, (show) business and/or plain wanking have all but disappeared.

What we are left with are the definitions of insiders of the art world. For example, art critic and writer Robert Hughes: “Something is a work of art if it is made with the intention to be a work of art and placed in a context where it is seen as a work of art. That does not determine whether it is aesthetically rich or stupidly banal.“ Or sculptor Louise Bourgeois: “Something is a work of art when it has fulfilled its role as therapy for the artist.”

THE BANALITY OF MORAL RIGHTS PROTECTION IN THE VISUAL ARTS As anybody can call him/herself an artist and anything can be labelled art, the proposed laws would literally apply to everything and nothing, and would therefore be absolutely meaningless. If there ever has been one, now there certainly is no conclusive argument as to why the products produced by an artist should be declared special. The idealist notion of the close personal link between an artist and his or her work does not stand up to the materialist reality of the late 20th century. Indeed, Australia can consider itself lucky not to have adopted moral rights laws 70 years ago, as the change of values and mores since then have rendered them outdated.

The building of legislation on the insights of philosophers is always fraught with uncertainty. Once tested in the harsh reality of politics, social philosophies end up being changed and amended. Apart from the historical co-evolution of moral rights legislation and certain ideas, there is no necessity to base moral rights on exactly these ideas. In fact, there is no necessity to have any moral rights at all.

It makes sense, seen in a historic context, that the nations with the closest spatial relationships to the above mentioned philosophers, France and Germany, have the most stringent moral rights protection. In other words, artists in these nations still are a protected species, because they have been so for a while and because so far no problems have arisen out of this arrangement. In Australia, the situations is exactly the opposite: no problems have arisen out of not having any moral rights protection (unless one maintains that Daubism is a moral rights infringement), but problems certainly will arise if this supposedly protective legislations is passed.

THE ROLE OF PAINTINGS IN CONTEMPORARY ART Today the only widely accepted premise, at least in the traditional fine arts and above all painting, is that nothing really new can be done anymore as virtually all basic ideas have been exhausted. However, it is original ideas contained in the (analog or digital) information of an image that make it special. As this information, certainly in the case of paintings, can be used to produce virtually identical copies, the significance of paintings and of the original for contemporary art has been drastically diminished. The role of most painters has been reduced to adding that extra little bit of a personal touch, quite often just the signature or, for that matter, nor signature, to some imagery whose underlying idea has been appropriated from somewhere else.

While there still are originals, originality hardly exists any more. As a result, paintings are increasingly excluded from academically inclined survey exhibitions in the same way that most art magazines are hardly concerned about them any more. The fact that painting has remained the most widely used technique is not a case for the importance of painting, but shows only that the skills required are easy to learn which makes it a relaxing pastime for an ever increasing number of hobby “artists”.

Furthermore, paintings can be handled easily and hung conveniently out of the way on walls. More often than not, their role is one of interior design that pleases, yet does not challenge anything, and mostly serves to give their owners an aura of sophistication and wealth (a case in point is “corporate art”). This is not a bad thing as such, but why anybody would want to protect by law a specific form of quasi-architectural features remains a mystery.

THE FUTURE FOR AUSTRALIA In his 1988 paper on moral rights , professor of law David Vaver states that “even with moral rights, authors are not assured furthering their interests.” He then goes on to say that “the only entities that have anything to fear from moral rights are the occasional institutions who, in dealing with creative works, believe that what is good for them is also good for Australia. They should be put in their place.” Back then, Daubism did not exist, so his statement probably would have been correct. But if introduced now, moral rights legislation for the visual arts would effectively outlaw Daubism. Does this mean that the Daubists should be put in their place? If, for whatever reason, the answer is “yes”, then creativity as such would be legislated against. It would equal censorship and constitute a serious restriction of the freedom of expression. If the answer is “no”, then there is no need for moral rights. It would be absurd to outlaw a procedure like Daubism, which intends to shed some light on the very question of what turns imagery into art, unless legislators are prepared to come up with a legally binding definition of art themselves.

Whoever has been led through the store rooms of a museum would have to agree that even the institutions which are meant to look after our more serious cultural heritage cannot fulfil their jobs properly. The sheer number of artefacts, and even anti-art and non-art presented as “art”, makes proper care difficult if not impossible. Should there be laws which regulate the degree to which private as well as public owners have to look after their “art”? Or would it be morally more responsible to recycle some of this material instead of leaving it to fall apart under controlled conditions?

With Big Brother closing in more and more even on the unassuming burghers of liberal democracies, the very last thing the visual arts need is further interference by the law. As demonstrated above, the visual arts has become an area which, at its core, is dictated by commercial interests, art being a commodity. The existing copyright laws and laws of commerce can be considered to sufficiently regulate this kind of business. Private contracts between the owners of art and over-sensitive “creators” can prevent the (justifiable?) grievance caused by (the theoretical possibility of) having one’s work recycled.

Whatever the outcome of the current debate, artists will keep re-using “found” images. Daubism is only the most concerted effort based on this concept whose time not only has come, but which is well advanced and appears in many forms and disguises. Outlawing Daubism would lead to a rather silly cat and mouse game, which ironically could represent the perfect epitome of the current state of the visual arts.