Art Hygiene Law: Artists Who Use Unusual Materials and Viewers Who “Take In” The Art

July 5, 2018

By Ethan Ashley. 

Arsenic orange, cadmium red, vermilion, lead white, cobalt, chrome green, formaldehyde, pig skin, feces…What happens when the substrates of creativity confront the law? In today’s art world, pressures to be novel combined with unbridled inspiration have pushed artists to work with new and increasingly unusual – and controversial – mediums. For quite some time now, artists including Damien Hirst , Andres Serrano, and even Andy Warhol have experimented with unconventional and controversial materials in order to advance their visual expression. As defined by U.S. legal code under the Federal Hazardous Substances Act (FHSA), an art material is “any substance marketed or represented by the producer or repackager as suitable for use in any phase of the creation of any work of visual or graphic art of any medium” (15 U.S.C.§1277 (2016)). But what about urine? Elephant dung ? Or menstrual blood? The concerns provoked by these mediums and others divide into two categories: health and safety issues concerning toxins in art and controversies surrounding the ethics and the unsettling nature of non-traditional artworks. This article will address both categories that continue to provoke questions in the world of art.

The LHAMA

At the Federal level, the only mention of health and safety regulations in the arts is the Labelling of Hazardous Art Materials Act (LHAMA) of 1988 included as an amendment to the Federal Hazardous Substances Act of 1960. The LHAMA, proposed by James Florio (D, NJ) to the House of Representatives, regulates substances that have the potential to cause chronic health issues for consumers, including respiratory illnesses and cancer. The LHAMA was originally proposed by legislators in response to demands from “representatives from the art materials industry, consumer groups and professional artists” and was also intended to address growing concerns of toxic art materials in schools. Under the LHAMA, a professional toxicologist is required to certify the risk posed by any new art material on the consumer. Art materials covered under the LHAMA include most traditional mediums including paints, pencils, and any inks but do not account for many of the chemicals being used by artists today such as formaldehyde.

The “Formaldehyde Series”

One incident that raises questions about the use of toxic materials in art is Damien Hirst’s iconic series of installations of glass tanks filled with formaldehyde solution that suspend a shark, a cow and her calf, and other animals (the “Formaldehyde Series”). In 2016, Hirst came under fire when one of his tanks was thought to be leaking formaldehyde fumes at the Tate Modern Museum in London. Formaldehyde is classified by the Environmental Protection Agency (EPA) as a carcinogenic substance and would, under U.S. legal code, infringe upon the regulations established by the LHAMA if used in artwork. While the controversy was ultimately set to rest once the scientist who thought Hirst’s work to be emitting unhealthy levels formaldehyde fumes revoked his findings, this episode poses many questions about the use of formaldehyde and other chemical substances in contemporary artworks. It is important to note that the “Formaldehyde Series” was not the first time the British artist had sparked controversy for his choice of artistic medium. In 1995, Hirst attempted to install an exhibition at the Gagosian Gallery in New York that “was to feature two pairs of dead, rotting cows simulating copulation by means of a hydraulic device” . The plans for the exhibition were quickly shut down following a series of complaints from the Gallery’s lawyers and animal rights groups. These controversies and others demonstrate prime examples of risk management that curators of museums and galleries must conduct in order to mitigate health concerns posed by artworks and installations.

The Responsibilities of Museums and Galleries

It may or may not come as a surprise that some museums have health and safety advisors who assess hazards posed by artworks and collections. For example, the Smithsonian Museum’s Office of Safety, Health, and Environmental Management has adopted extensive safety measures and procedures pertaining to collections-based hazards. More specifically, in these regulations, the use of formaldehyde and other similar preservatives are cited as posing a high medical risk to employees and visitors because of their carcinogenic nature. However, hiring a curator or team of health and safety advisors can be an expensive task for smaller up-and-coming galleries. As a result, the increasing number of artists who opt to work with preserved biological materials must confront these realities if they hope to display their works to the public. While health and safety issues associated with the toxicity of certain art materials occupies one side of this discussion, we must also address the fact that some contemporary artists choose to work with unsettling materials.

Navigating “The Gross Factor”

In the contemporary art world, an increasing number of artists are choosing to work with materials that have the potential of disturbing viewers. The British-born artist Tracey Emin’s work includes an installation constructed using pregnancy tests, a box of morning after pills, tampons, as well as blood and tissue paper. Additionally, one of her most famous works, entitled My Bed (1998)  depicts the artist’s bed surrounded by various personal items including stockings, cigarette buds, and condoms. Emin’s work uses these materials and others to approach subjects surrounding the female role in society. Similarly, the Michigan native Jen Lewis’ most recent project Beauty in Blood uses menstrual blood to produce abstract photographs that re-define social constructs surrounding the female body and femininity. Lewis uses a process in which she pours her own menstrual blood into fish tanks filled with water while her partner Rob Lewis takes macro-photographs of the menstrual fluid twisting and turning in the water. On another note, the contemporary artist Chris Ofili from Manchester, England, became renowned for his use of elephant dung. Ofili, who has been featured prominently at David Zwirner galleries in New York began working with elephant dung during the 90’s. Most notably, a piece entitled The Holy Virgin Mary (1996) that was created using a blend of resin, collage, glitter, and elephant dung sold for nearly £3 million at Christie’s London auction of Contemporary Art in 2015.

The experimental artist Heide Hatry’s body of work goes a step further. Hatry’s installations and arrangements include roses rendered out of pig flesh as well as an entire room made out of stretched pig skin entitled “Skin Room”. In order to create these works and others, Hatry has experimented with various preservation and embalming techniques including “Plastination,” the patented procedure used by Gunther von Hagens in his world-renowned Body Worlds exhibit. However, unlike many artists who work with biological materials, Hatry also uses untreated animal flesh, (see for example, Not a Rose) to produce her work. In her book Heads and Tails, Hatry describes how she used “untreated pigskin to cover a sculpture [she] had made out of clay, with raw meat for the lips and fresh pig eyes”. Inevitably, the work of these artists has increased pressure on museums and galleries to re-define their health and safety procedures and provide for the well-being of their visitors. Yet what happens when an artist opts to work with human rather than animal remains?

Non-Legal Principles

In 2008, Body Worlds toured the United States, raising concerns about the ethics of using human bodies for display. The sources of the bodies and the message of the exhibit were widely discussed while people were queuing up to see the exhibit in New York,  Philadelphia, and Los Angeles. Use of human remains in the art and museum world is uncommon and thus jarring, even as the value of human life continues to re-calibrate. Heide Hatry’s latest work, exhibited as  “Icons in Ash,” employs human ash to produce portraits of deceased subjects. While human ash does not present a health risk to viewers in the way that formaldehyde or other toxic chemicals do, the risk taken in exhibiting Hatry’s series of portraits is of a different nature. “Icons in Ash” forces audiences to grapple with their own conceptions and understandings of life and death. On the legal side, these works spark a multitude of considerations surrounding the public display of human remains, a recurring ethical issue in the museum world. Beginning in 2008, a New York State Senate bill sponsored by the late State Senator James Alesi (R, 55th) hoped to require “a permit issued by the Health Department” for any public or commercial display of human remains, including those in museums. This bill was sparked by the arrival of the controversial exhibit “Body Worlds” by Gunther von Hagens in New York and has since undergone multiple revisions and versions. In the 2017-18 legislative session, the same bill re-appeared and was referred to the Health Committee for review, this time sponsored by State Senator Kevin S. Parker (D, 21st). While such a bill poses a relatively minor risk to the art and museum world, it nonetheless embodies important ethical principles that must be accounted for as the contemporary art world continues to experiment with unusual mediums.

It’s Nothing New

As artists continue to push the boundaries of what is safe or permissible in order to probe questions surrounding topics like mortality and the human condition, they must routinely seek out new and controversial mediums of expression. Yet, with each step forward from the art world comes the need to verify health, safety, and legality of such mediums. The use of toxic and unorthodox materials is not news to the art world. A recent publication by Lucinda Hawksley entitled Bitten by Witch Fever chronicles the rampant use of pigments containing arsenic throughout the 19th century art. Furthermore, animals and animal parts have historically played a role in the materials artists use. Whether it be through paintbrushes made from horse hair or glue rendered from horses hooves (also the origins of the expression “Sent to the glue factory”), animals and their constituent parts will continue to have a role in the art world. As it concerns the use of human remains, Hatry’s portraits participate in a history re-defining how we cope with the passing of loved ones that extends back to the ancient Egyptians. The unusual, the outlandish, and the downright unsettling are all familiar realms to the art world. The only thing that varies is how each of us approaches them.

Sources and Suggested Readings:

• Catherine Hickley, “Should museums display human remains from other cultures?”, The Art Newspaper, (8 January 2018), available here.
• Christopher D. Shea, “Damien Hirst’s Art May Have Leaked Formaldehyde Fumes, Study Says”, The New York Times (21 April 2016), available here.
• Sarah Lyall, “IS IT ART, OR JUST DEAD MEAT?, The New York Times (12 November 1995), available here.
• Hannah Ellis-Petersen, “Scientist retracts claim that Damien Hirst works leaked cancerous fumes,” The Guardian (25 July 2016), available here.

Statutes:

• Federal Hazardous Substances Act 15 U.S.C. §§1261−1278;
• Labelling of Hazardous Art Materials Act (LHAMA) 15 U.S.C. §1277 (2016)

About the Author: Ethan Ashley is a Summer Intern at the Center for Art Law and a rising Senior at Colby College in Waterville, ME, where he is a Philosophy and French Studies Double Major. He has studied abroad at Université Lumière Lyon-2 and conducted a summer internship at Fondation Claude Monet in Giverny, France. Ethan is planning on pursuing Law School following his graduation from Colby in 2019.