By Christopher Zheng.

“When they ask us how we can have so much patience, I always answer, it’s not a matter of patience, it’s a matter of passion.”

~ Jeanne-Claude in an interview with the International Sculpture Center in 2004[1]

For over sixty years, Christo and Jeanne-Claude redefined urban and natural spaces with billowing fabric on a monumental scale. After a long career recasting landscapes and prominent structures into shimmering silhouettes, Christo died this year on May 31st at the age of 84.[2] He followed his artist partner and late wife Jeanne-Claude, who passed in 2009.[3] The artist duo challenged the status quo and courted controversy at every administrative and legal turn as they wrapped iconic architecture in cloth or dotted valleys with colorful umbrellas. For Christo and Jeanne-Claude, the aesthetic of their artwork was “everything involved in the process – the workers, the politics, the negotiations, the construction difficulty, the dealings with hundreds of people.”[4] However, such ambitions made them frequent subjects of lawsuits concerning copyright, administrative procedure, property rights, and environmental law, all of which will be explored in this article. As such, Christo and Jeanne-Claude stand as a paradigm of the intersections between art and law. And through their decades of dramatic displays, the two artists proposed to the world a captivating idea: getting a project wrapped up in bureaucratic red tape was as beautiful as wrapping something in radiant fabric.

The Dynamic Duo of Environmental Art

Born on the exact same day and year, June 13, 1935, Christo and Jeanne-Claude were kindred spirits in life and in art.[5] Much of their early work commented on political forces, the earliest being the unauthorized stacking of 204 oil barrels in a Parisian street as a statement against the oppressive Berlin Wall.[6] Upon moving to New York from France in 1964, Christo settled into a mix of site-specific installation and environmental art that adhered to Situationism, a movement that questioned how media shaped public consciousness by subverting preexisting places or images (known as détournement).[7]

The artists have always had a penchant for the monumental. One of their earliest notable works, titled “Wrapped Reichstag” (1995), involved enveloping the entire German Parliament building in silver cloth for two weeks.[8] Originally conceived in 1971, the 24 year-long fight for approval involved negotiations with six parliamentary presidents, circumventing three outright refusals, and finally spending $15.3 million to realize the vision.[9] Another project titled “The Umbrellas” (1991) spanned two continents, where 3,100 daffodil-yellow umbrellas in California were mirrored across the Pacific Ocean by a 12-mile stretch of cobalt-blue umbrellas installed in Japan.[10] To execute the project on the American side, the artists needed approval from Los Angeles and Kern county, multiple state agencies, and 29 separate landowners.[11]

Christ and Jeanne-Claude, “The Umbrellas” in California (1991), photo by Keith J. Licensed under CC-BY-NC-SA 2.0 (https://creativecommons.org/licenses/by-nc-sa/2.0/).

Christo and Jeanne-Claude’s installations were as ambitious at sea as they were on land. For two weeks in 1983, the artists used 6.5 million square feet of pink polypropylene fabric to encircle 11 man-made islands in Miami’s Biscayne Bay as part of “Surrounded Islands.”[12] The project ignited fiery protests from environmentalists concerned about the islands’ role as critical habitat for nesting ospreys and manatees.[13] One such protestor was Miami-Dade County Commissioner Harvey Ruvin, who became a convert and staunch supporter of the project after lunch with the artists.[14] This was Christo and Jeanne-Claude’s signature style: an unwavering patience in discussions and an insistence on speaking with individual stakeholders. Reflecting on “Surrounded Islands,” Ruvin declared “It’s part of our history – it started the resurgence [of Miami].”[15]

Christo and Jeanne-Claude, “Surrounded Islands, Biscayne Bay, Greater Miami, Florida, 1980-83,” photo by Wolfgang Volz (1983). Photo courtesy of the artists, available at: https://christojeanneclaude.net/press/christo-1935-2020.

Each site-specific installation could only be realized after extensive negotiations and agreements with affected landowners, relevant governmental agencies, and vigilant environmentalists. Much of their success in realizing these projects can be attributed to the artists’ principle of independently financing the entire cost of their installations by selling preparatory works, refusing to accept any grants, sponsorships, or donated labor.[16] Of course, they also often relied on the courts to protect their works, with experience as both the petitioners and respondents in lawsuits. While most legal hurdles occurred in the planning process, Christo and Jeanne-Claude also engaged in copyright disputes, here as plaintiffs, after presenting their works publically. In 1985, after the artists wrapped the Pont Neuf in France with polyamide fabric, Christo filed suit against two media companies that attempted to reproduce and distribute photographs of the installation without authorization.[17] The following year, the Paris Court of Appeals found for Christo, holding that the artists’ use of a silky tarp to highlight the bridge constituted an original work eligible for copyright protection, giving Christo a monopoly over the work’s reproduction and distribution.[18] One year later, however, Christo lost a lawsuit against a French advertising company that had created a campaign featuring wrapped trees and bridges.[19] Despite his existing copyright in prior works, the lower courts refused to grant Christo a monopoly on the idea of wrapping buildings and trees.[20] As such, the protection and very existence of Christo and Jeanne-Claude’s works depended on the mercy of the courts and government agencies, a precarious relationship that fit well within the larger tradition of site-specific artwork. The history of that project is currently on display at the Centre Pompidou in Paris through October 2020.

Christo and Jeanne-Claude, “The Pont Neuf Wrapped, Paris, 1975-1985,” photo by Wolfgang Volz (1985). Photo courtesy of the artists, available at: https://christojeanneclaude.net/press/christo-1935-2020.

The Ethical and Legal Issues of Site-Specific Art

Born from Conceptualism and installation art of the 1960s, site-specific artworks have long posed legal and ethical concerns unique from other mediums.[21] Because these works are made with a specific location in mind, they become part of their environments such that “removal is tantamount to destruction.”[22] Installations with major impacts on their surroundings naturally generate major legal questions. The most famous and the earliest example is Richard Serra’s sculpture “Tilted Arc” installed on Foley Federal Plaza in Manhattan from 1981 to 1989. When authorities voted to remove the sculpture, Serra claimed that moving the work from its original location constituted destruction.[23] The court, however, dismissed the case on the grounds that there was no contractual obligation for the work to remain in place.[24] The following year, Congress passed the Visual Artists Rights Act (1990)[25] in response to the “Tilted Arc” controversy, but specifically added a “Public Presentation Exception” to prevent the act’s protection of artist rights from extending to sculptures in public spaces.[26] As a result, courts have generally been reluctant to enjoin property owners from moving or altering site-specific artwork.

While precedent has largely disfavored protections for site-specific artwork,[27] a recent decision concerning the 5Pointz street art murals suggest an expansion of artists’ rights. In Castillo v. G&M Realty, a.k.a. The “5Pointz Case”, the Second Circuit ruled that VARA applied to site-specific works of recognized stature that were willfully destroyed.[28] In its opinion, the court specifically mentioned Christo and Jeanne-Claude’s project “The Gates” (2005) as an example of a reputable temporary work:

…as recently as 2005, New York City saw a clear instance where temporary artwork achieved recognized stature. That winter, artists Christo Vladimirov Javacheff and Jeanne‐Claude Denat…installed 7,503 orange draped gates in Central Park…[and] was the subject of significant critical acclaim and attention, not just from the art world but also from the general public.[29]

While Castillo does not move the United States into the full recognition of moral rights for environmental artists and the case is stayed pending the review of a petition of writ of certiorari before the U.S. Supreme Court, it does open an avenue for courts to recognize the value of temporary site-specific art.

Christo and Jeanne-Claude, “The Gates” (2005) in Central Park, New York, photo by Vdberg. Licensed under CC BY-NC-SA 2.0 (https://creativecommons.org/licenses/by-nc-sa/2.0/).

Most of the legal conflicts involving environmental art center on its status as a permanent object in a changing location. Christo and Jeanne-Claude’s work is thus distinguishable because of its insistence on a temporary existence. The ephemeral timeline, usually only a few weeks, makes it so legal challenges are often isolated to the planning of a work rather than its legacy. Two projects – “Running Fence” and “Over the River” – serve as illustrative case studies.

Case Study I: “Running Fence”

“The work is not only the fabric, the steel poles and the Fence…Everybody here is part of my work if they want it or don’t want it.”

~ Christo, quoted in Brian O’Doherty’s book Christo and Jeanne-Claude: Remembering the Running Fence[30]

For two weeks in the fall of 1976, a fence made of white nylon panels and steel poles stretched across Northern California, from the edges of Petaluma, through the pastures of Sonoma and Marin Counties, ending in the waters of Bodega Bay.[31] Christo and Jeanne-Claude conceived of “Running Fence” (1976) four years prior, looking to demonstrate how a “vast fence, rather than separating people, embodied ‘togetherness.”[32] The installation required 240,000 square yards of fabric, 2,050 steel poles, and 400 paid workers.[33] But more important than the artists’ logistical enormities were the legal challenges of a project crossing the properties of a multitude of rights holders.

Christo and Jeanne-Claude, “Running Fence, Sonoma and Marin Counties, California, 1972-76,” photo by Jeanne-Claude (1976). Photo courtesy of the artists, available at: https://christojeanneclaude.net/press/christo-1935-2020.

The land over which “Running Fence” crossed consisted of both public and private property. Much of the latter consisted of ranches in Sonoma and Marin Counties, where Christo and Jeanne-Claude visited individual households to negotiate easements – an agreement granting the legal right to cross or otherwise use someone’s property.[34] The process of navigating the unique concerns of 60 landowners and lessees was arduous, especially given the culture gap between the international artists and the ranchers.[35] To better connect with the ranchers’ concerns, Jeanne-Claude “educated herself on the particulars of milking, pasteurization, and the artificial insemination of cattle.”[36] The artists set up the Running Fence Corporation to shield themselves from liability and made agreements with the ranchers such that, after the fence came down, all building materials on their properties would belong to the landowners.[37] Most interestingly, however, the ranchers became the artists’ most vocal supporters, seeing “Running Fence” as a protest against government restrictions on the use of their own property as well as a “proxy battle against encroaching commercial development.”[38] Thus, in each negotiation over legal rights of access, Christo and Jeanne-Claude illustrated the mission of the final artwork: to unite disparate parties over something which physically divides.

For public land, the artists were just as careful to cover their bases, obtaining all necessary permits for building, design review, and conditional use.[39] However, protesters with concerns over environmental impacts formed the Committee to Stop the Running Fence to drag out permit hearings.[40] Even after a tribunal approved the project, the Superior Court of Sonoma County reversed the judgement thereby prohibiting the construction of the work.[41] On appeal, however, the California Court of Appeals held the lower court exceeded its jurisdiction when it reversed the tribunal’s permit grant because the agency was acting within its discretion and consistent with municipal law.[42] Additionally, the court took into account the considerable investment that the artists had already contributed to the project.[43]

After 18 public hearings and three sessions with the Superior Courts of California, Christo and Jeanne-Claude had legal clearance to construct “Running Fence.” What is all the more compelling, then, is the pair’s choice to still commit an illegal act by extending the fence into the Pacific Ocean in violation of an injunction by the California Coastal Commission.[44] After expending such substantial effort into acquiring legal permissions, why did the artists refuse to comply with the injunction? Christo explained: “I completely work within [the] American system by being illegal, like everyone else—if there is no illegal part, the project is less reflective of the system.”.[45] Through this lens, it is clear that “Running Fence” was never meant to focus on the structure. Rather, Christo and Jeanne-Claude used both compliance with and violation of the law as a medium to unite the urban and the rural before running into the sea.

Case Study II: “Over the River”

In the midst of wrapping the Reichstag in 1995, Christo and Jeanne-Claude were inspired to cover a river, where the billowing sheets could echo the ebb and flow of the water.[46] They selected the Arkansas River in Colorado, planning to suspend 5.9 miles of silver fabric panels over eight sections of the river for two weeks.[47] At town hall meetings, supporters such as the Sierra Club, local artists, and chamber of commerce officials championed “Over the River” for its potential to generate $121 million in economic output and the global attention it would bring to Colorado.[48] Meanwhile, local environmentalists formed the group Rags Over the Arkansas River (ROAR) over concerns that the installation would increase traffic congestion, endanger natural wildlife, and permanently intrude on the river.[49]

Aside from attending these town hall sessions, Christo and Jeanne-Claude spent much of their time gaining legal approval for the project. The artists began by applying for a land use permit from the Bureau of Land Management (BLM) which requested a two-year Environmental Impact Statement (EIS), as required by the National Environmental Policy Act.[50] Interestingly, this was the first time since the Act’s passage that the BLM had required an Environmental Impact Statement for a work of art.[51] The Bureau’s draft EIS received 4,500 comments for consideration prior to granting final approval in November 2011.[52] ROAR immediately filed multiple lawsuits in both state and federal court, alleging lapses in administrative procedure in reviewing “Over the River.” Fortunately for Christo, ROAR was met by a series of defeats in 2015. In Rags Over the Ark. River v. BLM, the 10th Circuit upheld BLM’s approval because the agency’s decision was not “arbitrary and capricious” given the 1,700-page environmental review. Additionally, the Colorado Court of Appeals rejected ROAR’s appeal against the State Parks Department since the agency provided enough evidence to support its approval,[53] including traffic operations analysis, traffic mitigation measures, and resource management planning.[54] Ultimately, Christo’s vast experience with administrative procedure guided the project’s compliance with state and federal requirements, resulting in robust defenses against legal challenges to the installation.

By 2017, Christo had worked on “Over the River” for over 20 years and spent $15 million of his own money on the project. Despite a string of legal wins in court, the artist announced in January of 2017 that he was officially abandoning the project over concerns with building on federally-owned land managed by the Trump Administration.[55] For Christo, freedom is a central principle, one he finds through covering the costs of his own work. But where the federal government is the landlord, Christo could not continue, saying “I can’t do a project that benefits this landlord.”[56] From their earliest oil barrel towers to the river project, the artists have always maintained a thread of the political. Even though Christo and Jeanne-Claude’s “Over the River” was never realized before their passing, in many ways the work has long been aloft – in the minds of supporters and dissenters, in town hall meetings, in bureaucratic red tape. And just like the Arkansas River, the effects of their 20-year crusade will continue to flow.

Wrapping Up a Lifetime of Work

Through concessions and compromise, Christo and Jeanne-Claude brought forth massive cloth displays which, in their act of obscuring, revealed new understandings of how to interact with space and infrastructure. What was most impressive about the work of the artists, however, was their insistence on jumping through a seemingly insurmountable number of legal hoops to make the impossible possible. Despite Christo’s passing, the artist’s estate has confirmed that his work will continue; the in-progress “L’Arc de Triomphe, Wrapped” will still be executed by September 2021 in Paris, where 269,097 square feet of fabric will cover the landmark.[57] However, if a lifetime’s work is any indication, the realization of the project matters less once the legal and administrative groundwork is already in place. By the artist’s own words, “the work is working in the mind of the people before it physically exists. This is probably the biggest satisfaction we have.”[58]


Endnotes:

  1. Jan G. Castro, A Matter of Passion: A Conversation with Christo and Jeanne-Claude, Intl. Sculpture Ctr. (Apr. 2004), https://www.sculpture.org/documents/scmag04/april04/WebSpecials/christo.shtml (quoting Jeanne-Claude).
  2. Alex Greenberger, Christo, Fearless Maker of Massive Public Artworks, Has Died at 84, ARTnews (May 31, 2020), https://www.artnews.com/art-news/news/christo-dead-wrappings-sculptures-1202689250/.
  3. See id.
  4. William Grimes, Christo, Artist Who Wrapped and Festooned on an Epic Scale, Dies at 84, N.Y. Times (May 31, 2020), https://www.nytimes.com/2020/05/31/arts/christo-dead.html (quoting Christo in a 1972 interview with the Times).
  5. C.A. & C.F., Christo & Jeanne-Claude, Ohio State Univ. Dep’t of Arts Administration: Artist and Musician Biographies (last accessed July 7, 2020), https://aaep1600.osu.edu/book/13_Christo.php.
  6. See id.
  7. Greenberger, supra note 2.
  8. See Jennifer Mundy, Lost Art: Christo and Jeanne-Claude, Tate (last accessed Jul. 3, 2020), https://www.tate.org.uk/art/artists/christo-905/lost-art-christo-and-jeanne-claude.
  9. Oliver Wainwright, How we made the Wrapped Reichstag, Guardian (Feb. 7, 2017), https://www.theguardian.com/artanddesign/2017/feb/07/how-we-made-the-wrapped-reichstag-berlin-christo-and-jeanne-claude-interview.
  10. Larissa Nickel, Blowin’ in the Wind: Christo and Jeanne-Claude’s Art in the Public Realm, KCET (July 7, 2016), https://www.kcet.org/shows/artbound/christo-and-jeanne-claude-umbrellas-the-gates-running-fence.
  11. Amy Pyle & David Colker, Second Death Mars Christo’s Art Exhibit : Umbrellas: A crane operator is electrocuted while dismantling a giant parasol in Japan, L.A. Times (Nov. 1, 1991), https://www.latimes.com/archives/la-xpm-1991-11-01-me-650-story.html.
  12. Christo and Jeanne-Claude: Surrounded Islands, Biscayne Bay, Greater Miami, Florida, 1980–83, Pérez Art Museum Miami (last accessed July 5, 2020), https://www.pamm.org/surroundedislands.
  13. Sheppard Mullin, “Over the River” and into the Legal Fray: Christo and Jeanne-Claude, Sheppard Mullin Art Law Blog (Jan. 12, 2011), https://www.artlawgallery.com/2011/01/articles/legislation/over-the-river-and-into-the-legal-fray-christo-and-jeanne-claude/.
  14. Andres Viglucci, He Dressed Up These Islands in Hot Pink 35 Years Ago. It Changed Miami Forever, Miami Herald (May 25, 2018), https://www.miamiherald.com/news/local/community/miami-dade/article211596054.html.
  15. Id.
  16. See Ken Gewertz, Christo visits the Business School, Harv. Gazette (Apr. 13, 2020), https://news.harvard.edu/gazette/story/2006/04/christo-visits-the-business-school/.
  17. See CA Paris, 13 mars 1986, Gaz. Pal. JP 239.
  18. See Id.
  19. See TGI Paris, 26 Mai 1987 (Dalloz 1998. Sommaires Commentés 201, obs. Colombet).
  20. See Id.
  21. See Sheila Lintott, Ethically Evaluating Land Art: Is It Worth It?, 10 Ethics, Place & Env’t 263 (2007).
  22. Douglas A. Johnston, Legal I: Site-specific Art and Changing Circumstances, 7 Int’l J. Museum Mgmt. and Curatorship 298 (1988).
  23. Id. at 298.
  24. See Id.
  25. 17 U.S.C. § 106A (a)(2)(A) (2012).
  26. Jane C. Ginsburg, A ‘Potato’ Firmly Planted: Moral Rights and Site-Specific Art, The Media Inst. (Feb. 26, 2013), https://www.mediainstitute.org/2013/02/26/a-potato-firmly-planted-moral-rights-and-site-specific-art/.
  27. See Phillips v. Pembroke Real Estate, 459 F.3d 128 (1st Cir. 2006) (holding that an artist’s wildflower bed displays in a public park did not qualify for VARA or copyright protection); see also Kelley v. Chi. Park Dist., 635 F.3d 290 (7th Cir. 2011) (holding that an artist’s sculptures in a public park could be moved since site-specific art is not covered under VARA); see also Daniel Grant, The Law Against Artists: Public Art Often Loses Out in Court, Observer (Sept. 9, 2014), https://observer.com/2014/09/the-law-against-artists-public-art-often-loses-out-in-court/.
  28. See Castillo et al. v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020).
  29. Castillo et al. v. G&M Realty L.P., No. 18-498, 2d Cir. Feb. 20, 2020).
  30. Caitlin O’Hara, The Journey to Running Fence, U. Cal. Press Blog (July 9, 2010), https://www.ucpress.edu/blog/9847/the-journey-to-running-fence/ (quoting Christo).
  31. Colby Chamberlain, The Politics of Christo and Jeanne-Claude’s Running Fence, 55 Artforum (2017), available at https://www.artforum.com/print/201704/the-politics-of-christo-and-jeanne-claude-s-running-fence-67188.
  32. Erica R. Hendry, Christo’s California Dreamin’, Smithsonian Mag. (June 2010), available at https://www.smithsonianmag.com/arts-culture/christos-california-dreamin-90869/.
  33. See Id.
  34. Chamberlain, supra note 33.
  35. See Id.
  36. Id.
  37. Hendry, supra note 34.
  38. Chamberlain, supra note 33.
  39. See Id.
  40. Hendry, supra note 34.
  41. See generally Running Fence Corp. v. Superior Court, 51 Cal. App. 3d 400 (Cal. Ct. App. 1975).
  42. See Id. at 404.
  43. See Id. at 410.
  44. Meryl Bailey, Book Review: Models of Integrity: Art and Law in Post-Sixties America, 5 Panorama (2019), available at https://editions.lib.umn.edu/panorama/article/models-of-integrity/.
  45. Calvin Tomkins, “Running Fence,” New Yorker (Mar. 28, 1977) at 80.
  46. See Sheppard Mullin, supra note 13.
  47. Press release, National Gallery of Art, Christo Donates Two Preparatory Collages for Over The River Project to National Gallery of Art, Washington (Nov. 8, 2011), available at https://www.nga.gov/press/2011/christo-donation.html.
  48. Maura Jenkins, Christo’s Newest Project ‘Over the River’ Has Environmentalists Worried, Wash. Post (Nov. 8, 2011), https://www.washingtonpost.com/blogs/arts-post/post/christos-newest-project-over-the-river-has-environmentalists-worried/2011/11/08/gIQAXA5M1M_blog.html.
  49. See Id.
  50. See Sheppard Mullin, supra note 13.
  51. Id.
  52. Christopher Ainscough, Art v. Nature: The Continuing Saga of Christo’s “Over The River” Project, U. Denver Water L. Rev. (Feb. 6, 2015), http://duwaterlawreview.com/art-v-nature-the-continuing-saga-of-christos-over-the-river-project/.
  53. Chelsea Blahut, Christo Overcomes Another Legal Hurdle in Federal Court Case, Architect (Feb. 12, 2015), https://www.architectmagazine.com/practice/christo-overcomes-another-legal-hurdle-in-federal-court-case_o..
  54. See Rags Over the Ark. River, Inc. v. BLM, 77 F. Supp. 3d 1038 (D. Colo. 2015).
  55. Randy Kennedy, Christo, Trump and the Art World’s Biggest Protest Yet, N.Y. Times (Jan. 25, 2017), https://www.nytimes.com/2017/01/25/arts/design/christo-protest-donald-trump-colorado-artwork.html?_r=0.
  56. Id.
  57. Greenberger, supra note 2.
  58. Jason Blevins, Christo Says Opposition to ‘Over the River’ Project is Part of the Art, Denver Post (Apr. 29, 2016), https://www.denverpost.com/2013/10/17/christo-says-opposition-to-over-the-river-project-is-part-of-the-art.

Further Reading:

  • Rachel E. Nordby, Off of the Pedestal and into the Fire: How Phillips Chips Away at the Rights of Site-Specific Artists, 35 Fl. St. U. L. Rev. 167, 183 (2007).
  • Joan Kee, Models of Integrity: Art and Law in Post-Sixties America, U.C. Press (2019).
  • John Andrew Fisher, Is It Worth It? Lintott and Ethically Evaluating Environmental Art, 10 Ethics, Place, and Env’t 279 (2007).
  • Christopher Howard, Collecting Land Art: How Earthworks Challenge Patronage, Art in America (June 28, 2020), https://www.artnews.com/art-in-america/features/land-art-robert-smithson-james-turrell-challenges-60181/.

About the Author: Christopher Zheng is a Summer 2020 legal intern at the Center for Art Law. He is in the class of 2022 at Harvard Law School and graduated from Columbia University in 2019 with a B.A. in art history and political science. At Harvard, he serves as a senior articles editor for the Journal on Sports and Entertainment Law and is the vice president of fashion and fine arts programming for the Committee on Sports and Entertainment Law. You can reach him at czheng@jd22.law.harvard.edu.

Acknowledgments: The Author wishes to thank Louise Carron for her support in translating French court opinions.