Copyright Ownership and Performance Art

April 10, 2023

a couple is walking through night streets of NYC april 2023

By Nicky Frankel

From Yoko Ono’s demonstration of compliance in her work Cut Piece (1964) to Gina Pane’s display of Vietnam War rebellion in Escalade non Anesthésiée (1971) (Unanesthetized Escalation), performance art uses the human body as a medium for the creation of statements regarding class, race, gender, society, and political issues. However, the intangible nature of this art form, non-traditional in both its inception and execution, and its popularity in the modern art world raise concerns over the rights of performing artists with regards to intellectual property and copyright law.

Performance Art vs Performing Arts

Though it has no strict definition, performance art is a combination of both visual art and performance that is created to be carried out before an audience and, while it can be recorded as performing arts can, is intended to act as a live representation of the artist’s expression.^{^[1]} These recordings are not only used for documentation purposes but can also be an artistic decision meant to freeze the moment in time.^{^[2]} A temporal experience, performance art is reliant on audience participation and regularly, but not necessarily, includes the artists themselves in the exhibition. This, in part, differentiates performance art from the performing arts (such as music, comedy routines, dance, and theater), in which individuals–other than the work’s creator or audience–are utilized to communicate a distinct message. Rather than using bodies to portray a story, in performance art pieces, the body is art. Another differentiating factor is the interdependence fostered between the work’s creator and audience. As art critic and curator Lea Verigne would put it:

The artist offers his hand to the spectator and the success of the operation depends upon how and how much the spectator is willing to accept it. The gesture of the artist… acquires significance only if his actions are met by an ace of recognition on the part of the spectator… It is indispensable that the public cooperate with him, since what he needs is to be confirmed in his identity.^{^[3]}

To the U.S. Copyright office, however, there is no sharp distinction between works of performance art and the performing arts. As performance art pieces can vary widely in their meanings, experience, and processes, there is no strict definition of performing arts or “works of the performing arts” as the U.S. Copyright Office refers to it as. Their position is “[Congress]… determined that definitions for musical works, dramatic works, choreographic works, and pantomimes were unnecessary because these terms ‘have fairly settled meanings’… As a general matter, a work that was created to be performed before an audience, directly or indirectly, is a work of the performing arts.”^{^[4]^[5]}

Copyright in Performance Art

Performance art is generally an intangible experience and some pieces and occurrences in works of performance art can be improvised by the creator or members of the audience. This renders the performance piece uncopyrightable, as any work that is improvised, unless fixed in a tangible and “sufficiently permanent” medium, is unable to be registered with the U.S. Copyright Office (with the exception of musical works).^{^[6]} In order to be copyrightable, a work must be the author’s original work and contain a minimal degree of creativity; on the other hand, a work cannot be protected under copyright laws if its subject matter is deemed uncopyrightable, if it was created with de minimis expression (lacking base-level creativity), or if it is not original to the work’s creator.^{^[7]}

Whether it be photographs at the request of the creator or videos taken by spectators, pieces of performance art are often accompanied by documentation which creates a fixed, copyrightable medium for the work. Some performance artists, such as Gina Pane, would privately create their performance art and have it documented (in Pane’s case, mostly through photographs and video recordings). This essentially removed fears over copyright protection and ownership rights. However, if an artist chooses to instead create live performance art (such as Marina Abramović’s The Artist is Present), what are their claims to ownership under law? Under section 106A of the Copyright Act, creators of copyrighted performance art are given the “exclusive rights” of reproduction, public display, public performance, distribution, the creation of derivative works, and the rights of attribution and integrity.^{^[8]}

Copyright Issues in Live Art

A well-known piece of performance art, The Artist is Present (2010) and the rights given to Abramović (or lack thereof) can be used as an example of the limits of copyright protection for live and intangible performance art. In her art piece, Abramović seated herself at a table across from an empty chair, inviting spectators to sit with her as she silently gazed at them, forcing them to remain within the present moment and engage emotionally with the artist.^{^[9]} As an expression of human intimacy, vulnerability, and connection, many spectators were moved to tears: Abramović used her gaze and body language to create her work of performance art. Abramović created limited edition photographs of this piece that she put on sale; while these photographs are protected under copyright law, and can do as she deems fit with them, the performance itself is not.

The Artist is Present, from a legal standpoint, can be condensed into the action of an individual sitting in a chair and allowing others to take the seat opposite them, resulting in an action that cannot be copyrighted. Moreover, the art is heavily reliant on audience participation and is consequently improvised, with the only constant being Abramović remaining silently seated. Because of this, there is no protection for The Artist is Present under U.S. copyright law, and Abramović’s work could be recreated without fear of copyright infringement or legal intervention.

Tangible Art and Copyright

An example of performance art that is tangible (fixed in photographs) is Gina Pane’s Escalade non Anesthésiée, in which she climbed a ladder that had shard-lined rungs, repeatedly cutting her bare hands and feet with each ascent.^{^[10]} This was Pane’s way of creating a spectacle of female suffering and criticizing the Vietnam War; her exhausting performance forced her audience to internalize her suffering and open their eyes to what was happening on the warfront. While the act of simply climbing a ladder is not protected under copyright law, Pane’s work is copyrightable as it was not a live performance, but rather, a set of displayed photographs. With this in mind, Pane is afforded exclusive rights as an artist.

The Exclusive Rights of Performance Artists

Reproduction and Public Display

Pane, like other performance artists with copyrightable work, is given the exclusive right of reproduction: under this right, only the author of the copyrighted work is allowed to recreate their work or construct reproductions of it. Under section 106 of the U.S Copyright Act, copyright infringement in this case is not limited to an individual copying the entire work but rather extends to the duplication of any substantial part of it, as well.^{^[11]} In addition to the right of reproduction are the rights to publicly display and perform the work, allowing the copyright holder to control the display and public performance of the work if it is literary, choreographic, audio visual, etc. Moreover, the owner of the copyrighted work also controls the distribution of said work through sale, rental, lease, transfer of ownership, or lending in the form of recordings and or copies.^{^[12]}

Derivative Works, Attribution, and Integrity

The right to create derivative works is given to the creator of the work, but only extends to contributions made by the creator of the work themself.^{^[13]} A derivative work is an artistic creation that is built on (or is based off of) preexisting works, including “…a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’”^{^[14]}

The last rights given exclusively to the owner of copyrighted performance art are the rights of attribution and integrity. Within these rights, the author of a copyrighted work has the rights to claim ownership over the work and prevent the usage of their name on a work that they did not create (including but not limited to new pieces that are modifications of the original work). These two rights are afforded only to the author of the work, regardless of if they possess the work’s copyright; if the piece is jointly-created, the co-authors share the rights of attribution and integrity.^{^[15]}

Fair Use Limitations:

While these rights are given solely to the owner of the work (with attribution and integrity being granted to the work’s author), there are limitations to these exclusive rights. “Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster.”^{^[16]} The fair use doctrine also extends to unpublished works under copyright protection.^{^[17]} If the work is used for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then fair use applies.^{^[18]} The factors used to decide if fair use applies includes the purpose of using the work (whether it be commercial or nonprofit/educational), how much the work was used (how substantial the part is relative to the whole piece), the nature of the copyrighted work, and the change in market value of the copyrighted work as a result of the use, if any.^{^[19]} It should be noted that fair use is not automatically applied: it can be used as a defense against copyright infringement claims, but it is not guaranteed that an artist’s use of the work falls under fair use protection.

In the 1992 case Rogers v. Koons, Art Rogers, the owner of the copyrighted photograph Puppies, sued sculptor Jeff Koons after he created his sculpture String of Puppies and had sold copies to collectors as well as displayed the sculpture in a gallery. This satirical sculpture copied the original puppies photograph and Koons contested that it was simply a parody, considering it to be social commentary regarding “the original photo and the political and economic system that created it,” which would be under fair use.^{^[20]} In the end, the court had ruled that Koons’s use of the photograph was not under fair use due to the purpose of using the work as well as how much of the work was used. Not only did the court find that Koons’s sculpture was created in “…bad faith, primarily for profit-making motives, and did not constitute a parody of the original work,” but it also found that he had copied the photograph’s “essence,” as well.^{^[21]}

Conclusion

While there are unspoken rules for artists, such as “…an artist should not lie to himself or others… [and] an artist should not steal ideas from other artists…,” these rules of artistic etiquette can only extend so far.^{^[22]} Because of the intangible nature of performance art, it is uncopyrightable and therefore it becomes increasingly difficult to prevent others from copying or remaking a work. However, an artist can copyright tangible records from a performance such as audio and video recordings, photographs, etc. These items, when copyrighted, allow the owner to hold the exclusive rights to reproduce, publicly display and perform, distribute, and create derivative versions of the work (with the author of the copyrighted piece being given the exclusive rights of attribution and integrity). Copyrighting a piece of performance art allows the work’s creator to control much of what happens to the work; however, anyone can use the work so long as the new work aligns with fair use policies and does not appropriate or directly reproduce the original work.

Additional Resources

How to copyright performance art or performing arts: Electronic Copyright Office (ECO), https://copyright.gov/registration/

U.S. Copyright Office Fair Use Index:

https://www.copyright.gov/fair-use/

About the Author

Nicky Frankel is a graduate from Boston University receiving majors in International Relations, French Studies, and History. She is a 1L at Yeshiva University Benjamin N. Cardozo School of Law, where she plans to focus on intellectual property and art law.

Lea Vergine, The Body as Language, Body Art and Like Stories, in Body art and performance: The body as language 7–26 (2007), https://monoskop.org/images/1/1c/Vergine_Lea_Body_Art_and_Performance_The_Body_as_Language_2000.pdf. ↑
Philip Auslander, The performativity of performance documentation, 28 PAJ: A Journal of Performance and Art 1–10 (2006). ↑
Lea Vergine, The Body as Language, Body Art and Like Stories, in Body art and performance: The body as language 7–26 (2007), https://monoskop.org/images/1/1c/Vergine_Lea_Body_Art_and_Performance_The_Body_as_Language_2000.pdf. ↑
Compendium of U.S Copyright Office Practices, Third Edition. ↑
See also 17 U.S.C. § 202.3 ↑
17 U.S.C. § 101 ↑
Compendium of U.S Copyright Office Practices, Third Edition. ↑
17 U.S.C. § 106A ↑
The Artist Is Present, MoMA, https://www.moma.org/learn/moma_learning/marina-abramovic-marina-abramovic-the-artist-is-present-2010/. ↑
Martel, R. & Côté, D.-J. (1990). Gina PANE. Inter, (49), 2–7. ↑
17 U.S.C. § 106 ↑
Ibid., ↑
17 U.S.C. § 103 ↑
17 U.S.C. § 101 ↑
17 U.S.C. § 106A ↑
“Copyright and Fair Use.” Copyright and Fair Use, Harvard University, 2016, https://ogc.harvard.edu/pages/copyright-and-fair-use#:~:text=Fair%20use%20is%20the%20right,law%20is%20designed%20to%20foster. ↑
17 U.S.C. § 107 ↑
Ibid, ↑
Ibid., ↑
Rogers v. Koons, 960 f.2d 301 (2d cir. 1992), https://www.copyright.gov/fair-use/summaries/rogers-koons-2dcir1992.pdf. ↑
Ibid., ↑
Marina Abramović, Hirshhorn Museum and sculpture garden | smithsonian An Artist’s Life Manifesto, https://hirshhorn.si.edu/wp-content/uploads/2012/04/An-Artists-Life-Manifesto.pdf. ↑