Legal Perspectives of Shahzia Sikander’s Public Art at Madison Square Park and the Courthouse of the Appellate Division

July 14, 2023

Shahzia Sikander, sculpture at the Madison Square Park 2023

By Valencia Tong

Introduction

On May 31st, the Center for Art Law team joined a guided tour at Madison Square Park of artist Shahzia Sikander’s public art exhibition Havah…to breathe, air, life. The exhibition revolved around the theme of justice and included new works commissioned by Madison Square Park Conservancy. Titled Witness (2023) and NOW (2023), respectively, the new works were on display in the park and at the adjacent Courthouse of the Appellate Division, First Department of the Supreme Court of the State of New York.^[1]

Shahzia Sikander, Witness (2023) in Madison Square Park for Havah...to breathe, air, life, 2023. Photo credit: Yasunori Matsui. Courtesy the artist and Madison Square Park Conservancy. — Shahzia Sikander, Witness (2023) in Madison Square Park for Havah…to breathe, air, life, 2023. Photo credit: Yasunori Matsui. Courtesy the artist and Madison Square Park Conservancy.

On a lawn, visitors in the park could see Sikander’s video animation, Reckoning (2020). In addition to the physical works on view, visitors could participate in an augmented reality (AR) experience via the Snapchat app to view Sikander’s virtual work, Apparition (2023), through their phone screen.

The artist Shahzia Sikander was one of the keynote speakers at the 2023 Annual Symposium: Transforming Public Art held by the Madison Square Park Conservancy a few days later on June 2nd.^{^[2]} During the symposium, Sikander explained how she drew inspiration from influential figures in the legal system, such as United States Supreme Court Associate Justice Ruth Bader Ginsburg, as part of her exploration of the power dynamics and complexities of representation in public space.

Unsurprisingly, Sikander’s approach to address systems of justice and injustice by situating women in positions of power caused mixed reactions. Referring to the backlash, she discussed the issues at stake, especially the aftermath of the overturn of Roe v. Wade, and how the divisiveness in society with regards to race, gender, socioeconomic status, and religion fueled various debates.

This highlights the vulnerability and the limited amount of control artists and creators have when their work is placed in public, as their work is subjected to the interpretation of audience members from all walks of life. Public art, as an art form, is meant to be outside the confines of the museum or the art gallery, which makes striking a balance between the rights of the artist and the rights of the public a difficult balance.

Legal Considerations

Shahzia Sikander, NOW (2023) on the Courthouse of the Appellate Division, First Department of the State of New York for Havah...to breathe, air, life, 2023. Photo credit: Yasunori Matsui. Courtesy the artist and Madison Square Park Conservancy. — Shahzia Sikander, NOW (2023) on the Courthouse of the Appellate Division, First Department of the State of New York for Havah…to breathe, air, life, 2023. Photo credit: Yasunori Matsui. Courtesy the artist and Madison Square Park Conservancy.

How do you protect public art from being attacked? And how do artists protect their reputation when their work creates both intended and unintended reactions from the public? Although the work in question is not physically vandalized, it is worth examining what legal rights and protection artists have when their work is deemed as public art.

While the art world generally views Sikander’s work as significant for both its artistic merit and for raising awareness of pressing issues, not everyone is happy with the presentation of the subject matter. To contextualize the controversy, the keynote during the symposium mentioned the negative sentiment expressed by certain religious groups. Such groups described the golden horned figure as a “satanic” or “demonic” embodiment of an idol for abortion. This interpretation by a segment of the public deviates from Sikander’s original message. Considering how the background and beliefs of people shape their worldviews, there is no single correct answer for how a work of art should be interpreted.

As such, there are many considerations, especially legal aspects, that artists need to be aware of when presenting public art.

Intellectual Property

The identity and role of the creator of a public artwork is like that of an author. According to the U.S. Copyright Office, “under the copyright law, the creator of the original expression in a work is its author.”^{^[3]} Since the work is placed in a public space, it is important to first determine whether the work is supposed to be politically charged or decorative and non-confrontational. The Center for Art Law’s Workshop on Public Art Commissions discussed the nuances of drafting a commission contract in general, with special attention directed towards matters related to intellectual property.^{^[4]} For example, when the public artwork is installed, who owns the artwork and who owns the intellectual property? Does the artist own it? Does the organization that commissioned it own it? When the public photographs public art, how does the owner of the intellectual property ensure that it is used properly?

With regards to the ownership of the work, the way that the contract was drafted also affects other considerations such as the maintenance of the work. Who is in charge of maintaining the artwork? Who is in charge of safety, both to the artwork itself and to the public? These are questions to consider.

With the increasing interest of the public regarding what public art and monuments symbolize, the attention surrounding the integrity of the work rises exponentially.

The Visual Artists Rights Act (VARA)

Artists care about protecting the integrity of the artwork. The Visual Artists Rights Act of 1990 is supposed to protect artists and their moral rights to ensure that they can claim authorship of the work and that their reputation is protected. Hence, it is wise to be aware of whether the language of the contract aligns with this or whether there are any waivers.

An artist’s intention of how the artwork is to be perceived is one thing, but the actual perception of the public towards the artwork may deviate. What happens when the public feels offended by a work of art because of the public’s own perception which is unintended? Can an artist be responsible for how the viewers feel about the artwork? If a public work of art is recontextualized in a different way from how the artist originally intended, what can an artist do?

A well-known example concerning VARA disputes is when the bronze statue named “Charging Bull” was recontextualized as a symbol of oppression. Originally, “Charging Bull” was supposed to symbolize optimism and financial prosperity related to Wall Street.

When a statue named “Fearless Girl” by another artist was placed nearby, which challenged patriarchal standards in the finance industry and raised awareness of women’s rights, the meaning of “Charging Bull” changed.

This shows the vulnerability of artists and the complexities of the gap between the intention and the perceived message for the public.

Permanent or Temporary?

Another aspect regarding the integrity of the artwork concerns the permanence of the public art. What will happen to the artwork after the duration of the exhibition? Will it be destroyed or will it be stored somewhere else? If so, who is in charge of the logistics of storage? Other questions include: Can the artist sell the artwork after the exhibition to someone else? Can the artist make copies of the artwork? These are issues that are significant and should ideally be clarified in the contract.

The material of the artwork is also a factor to consider, especially if the work of art is to be placed outdoors in public. Let us consider the mediums of the following works of art in this exhibition from the descriptions:

Witness, 2023, painted milled high-density foam, steel, fiberglass, glass tile, 18 × 13 × 13 feet
NOW, 2023, patinated bronze, 8 × 4 × 4 feet
Reckoning, 2020, HD video animation with sound; music by Du Yun, animation by Patrick O’Rourke 4 minutes, 17 seconds. Collection of the artist, courtesy Sean Kelly
Apparition, 2023, augmented reality experience. The augmented reality experience is provided by Snap and built by AR studio MousePack

While the public mostly perceives the shiny metallic material of Witness as bronze, it is actually painted foam. This raises the question of durability in an outdoor setting. Whereas NOW is made of bronze. Time will tell whether it withstands corrosion. Reckoning involves electronic displays placed in public, so it is subjected to weather conditions. Apparition is an AR experience. The work does not physically exist in the venue itself and is only seen via the viewer’s device. The technical specifications of the viewer’s device determine the outcome of what the work looks like. These are all fascinating aspects to consider when creating public art, both from the perspectives of innovation and legal perspectives of ensuring a successful experience.

Fortunately, all the works on view are intact. However, for artists who are interested in creating public art, it is important to clarify in the contract issues related to maintenance, conservation, and insurance, so that many what-if scenarios are addressed.

Conclusion

While the answer to each question depends on the specific circumstance, both artists and the organizations that commission public art should consider possible clarifications in the contract beforehand to ensure that the collaboration results in the desired outcome.

Sources:

Shahzia Sikander: Havah…to breathe, air, life https://madisonsquarepark.org/art/exhibitions/shahzia-sikander-havah-to-breathe-air-life
2023 Annual Symposium: Transforming Public Art https://madisonsquarepark.org/community/calendar/event/transforming-public-art
U.S. Copyright Office – Definitions (FAQ) https://www.copyright.gov/help/faq-definitions.html
Workshop on Public Art Commissions: Creations, Contracts and Clauses https://itsartlaw.org/workshop-on-public-art-commissions-creations-contracts-and-clauses/

Suggested Resources:

About the Author:

Valencia Tong is a graduate student at Columbia University. As an award-winning art writer and consultant, she is interested in the legal aspects of art business, intellectual property, technology, and estate planning. She can be reached at https://valenciatong.com/.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.