Can performance art be appropriated? How can there even be a reproduction of something so transient? Unlike ‘performance art’, the other ephemeral artform of dance is actually grounded in technique that is hundreds of years old, and systems of recordation have been developed to enable reproduction. Performance art seems the most transient of all, designed to exist only in a particular moment. Should performance art have the protection of copyright? What would amount to the infringement of the copyright in such a work?
This blog has considered the copyrightability of performance art in discussing a German case involving the estate of Joseph Beuys. Reference was made to Marina Abramovic’s recent retrospective at the Museum of Modern Art. To make a retrospective in a museum possible, Abramovic trained artists and actors to recreate her works. Museum visitors were also asked to participate in these works by interacting with the “living” pieces in the museum, causing the works to become even more transient. What happens when performance art is fixed in film?
In 1998, Pierre Coulibeuf made The Star and The Balkan Baroque, two short films that feature performances by Marina Abramovic. “[The Star] is an experimental fictional film in which Abramovic appears as an actress directed by Coulibeuf,” says Chantal Delanoë, a producer at Regards Productions, as quoted by The Art Newspaper.
Abramovic disagreed with Delanoë’s description of the film, and brought a lawsuit claiming that the director had unlawfully used footage of her work after ignoring her directions. She lost because the court found that she had transferred rights to use the footage via contract.
However, “Marina did not sign anything stating he could make installations or photographic or video editions of [this] work,” a spokeswoman told The Art Newspaper. After Coulibeuf placed The Balkan Baroque in an installation in a Portuguese museum, Abramovic was able to bring another lawsuit in 2009.
She told the Art Newspaper, “Coulibeuf moved from a filmmaking role into the realm of an artist. He was not saying that the footage was taken from my films; he was calling it his own work of art.”
The superior court in Paris has ruled that Abramovic is a “co-author” of the film, and is entitled to damages for infringing her rights and for damaging the integrity to the work. The case, although decided according to French law, raises interesting questions about copyright ownership of performance art and performance art that is fixed in film.