Who owns the rights to documentations of performance art?

As a curator specializing in contemporary art from the 1960s to the present, with a particular interest in performative works by such artists as James Lee Byars and Yves Klein, I was alarmed by a recent court ruling on the issue of who owns the copyright to the photographic documentation of artistic performances. A German court ruled in favor of Eva Beuys, the widow of the artist Joseph Beuys, who claims that she controls the rights to photographs taken during Beuys’s 1964 performance Das Schweigen von Marcel Duchamp ist überbewertet (The silence of Marcel Duchamp is Overrated). The photographs were taken by the late Manfred Tischer who was granted permission to document the performance by Beuys at the time, but apparently was not authorized explicitly to publish or exhibit them. When the German museum Schloss Moyland, which houses an extensive collection and archive of Beuys’s works, decided to exhibit 19 of Tischer’s photographs, the artist’s widow sued the museum of copyright infringement with the help of the German copyright society, VG Bild-Kunst.

The Painter of Space Leaping into the Void

Yves Klein, The Painter of Space Leaping into the Void, 1960. © Yves Klein, ADAGP, Paris

Even before this ruling, authorial ownership of works of art has not been without revisions. When the French painter and protoconceptul artist Yves Klein decided to hire two young photographers, Harry Shunk and John Kender, to photograph his leap off the projecting ledge of the roof of a house in the Parisian suburb of Fontenay-aux-Roses in 1960 and then asked them to “erase” on the negative the tarpaulin that was held below in order to catch him, the resulting photograph was long considered an ephemera – a visual record of his performance, and its authorship was often contributed to the two photographers. In recent years, however, the photograph has been elevated to the status of a work of art created by Yves Klein and is now prominently displayed next to his monochrome paintings and sculptures in museum exhibitions of his works, such as the one held by the Hirshhorn Museum last year.

One of the most celebrated photographers of 1960s and 1970s performance art was Peter Moore. Moore documented a variety of avant-garde art, dance, and theater performances, including the ephemeral events staged by artists associated with the Fluxus movement. His estate has been managed by his widow, the art historian, writer, and former rare-book dealer Barbara Moore. Peter Moore’s photographs are frequently reproduced in museum catalogues and included in historical exhibitions.

Such visual records have long played a crucial role in exhibitions on avant-garde art. The court ruling in Düsseldorf establishes a dangerous precedent that might put at risk scholarly exhibitions that depend on photographic documentation of twentieth-century performance art, as it might encourage other artists or their descendants to institute similar legal proceedings.

2 thoughts on “Who owns the rights to documentations of performance art?

  1. Interesting. Given that a performance is live, it seems obvious that the rights to any documentation should lie with the photographer, stenographer, tape op or whoever records the event. If what you say is true, it does set a horrible legal precedent. I wonder if Eva Beuys sued for copyright infringement or perhaps (and perhaps correctly) for a personality rights infringement. (According to Wikipedia: “Personality rights” is a common or casual reference to the proper term of art “Right of Publicity”. The Right of Publicity can be defined simply as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one’s identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the Right of Publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).)

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