Contracts Conflicts, Censorship
Annotated Transcript of a presentation at the Conference »Die Bestie und ist der Souverän« at Württembergischer Kunstverein Stuttgart on October 18 2015.
Right in the middle of the developments at MACBA in March of 2015 (the attempted censorship of Ines Doujak´s sculpture »Not Dressed for Conquering« and the subsequent conflict leading to the dismissal of two curators and the resignation of the executive director) I wrote a short text with the title »Questions of power: Invitations, Vetoes, Censorship«. In the second paragraph I wrote: »The controversy could be a textbook example from the many curator training programs around the world. However, it would then become apparent that the issue of the “censorship” of this artwork could only be investigated in connection with countless other law- and power-related questions in the contemporary exhibition context. Indeed, each aspiring exhibition merely represents the final station in a process of negotiation that cannot be viewed separately from the interests of all involved parties. The rejection of individual works of art or project proposals may in fact happen much more frequently than assumed by those who, lacking practical experience, believe that artists enjoy absolute freedom after having accepted an invitation. In reality, the spectrum of invitation formats ranges from informal “carte blanche” demands to production agreements with detailed pre-presentation duties that leave artists no room for presenting “undesired” works in the exhibition. Yet those involved in conflicts frequently end up admitting that they had not really discussed the more specific modalities related to their participation in the exhibition early on in the collaboration process.«1
When I used this part of the text as the abstract for this presentation, Iris Dressler, Co-Director at Württembergischer Kunstverein n Stuttgart, noticed that it would probably be a good idea to not only talk about agreements between artists and institutions, but to also shed some light on the legal questions involved and to give an explanation as to how the issue at hand relates to questions of artistic freedom and in particular to the fact that artistic freedom is constitutionally guaranteed in most of the countries that many of us work in.
Before I do that it is crucial to talk about one's own position: I have graduated from law nearly 30 years ago but I have never exclusively practiced it. What I did extensively was to negotiate the conditions of participation for artists in exhibitions, festivals, museums, world´s fairs etc. etc. I did that many times on the side of the presenting institutions but I also regularly consulted artists, who where engaged in conflicts or who wanted to organize their relationship to presenters in a more satisfactory way. So there are two important caveats to the little bit of legalizing that you will witness in the coming 30 minutes. First: I have to simplify and assume that the things we talk about happened in Germany (or Austria for that matter), because I do not know anything about Spanish law. Second: I have to point out again that I am not a professional – meaning: liable – lawyer but an experienced curator and producer in the field of contemporary art with some legal background.
Public Law and Private Law
Let´s start legalizing with an important distinction: Law is not one homogeneous system. What we need most for the case in question is the distinction between Public law and Private Law. In very short Public Law regulates the relationship between the state and its citizens. It is Public Law when the state regulates street traffic or where the state penalizes unwanted, e.g. criminal, behavior. Private Law deals with the relationship between private individuals. The best-known element of Private Law are contracts. We all know contracts and we are engaging in contracts all the time. My coming here and speaking for a certain fee is regulated by law just insomuch, as my email exchange with Iris Dressler constitutes a contract between myself and the Württembergischer Kunstverein. The one overarching principle of Private Law is »Pacta sunt Servanda«, meaning »Contracts are to be honored«. Public Law has barely anything to do with my relationship with Württembergischer Kunstverein, and has therefore nothing to do with the state guaranteeing my freedom of expression. If I where to behave badly, Iris Dressler could turn of my microphone, ask me to leave or ask a security guard to accompany me to the door, based on nothing more than her private rights as the host.
Most conflicts between presenting institutions, curators and artists do not even touch the sphere of Public Law and therefore do not relate to the constitutional guarantees of artistic freedom. Why is this? In most cases constitutional guarantees protect the individual from unwanted interference by the state. The constitutional guarantee of artistic freedom does not guarantee a trouble-free production process but it guarantees that the state will not interfere with it. If the state had forced me to submit my text to a state agency before presenting it here, that would have been censorship. If the state had passed a law limiting the right to show at Kunstverein to members of artistic unions this would be a violation of the constitutional guarantee. The same goes for the case that a state would ban certain subjects or motives from depiction. But if a museum has a conflict with an artist, this is usually beyond the reach of Public Law. And it does not necessarily matter legally if the museum is state-funded or not. Most of the modern museums are organized as independent legal entities and as such are considered legally private in the sense of the museum being a »Juristische Person«, meaning a »legal Person« – an individual with all the rights to engage in contracts just as any other private individual.
So we summarize that conflicts between artists and institution are usually private law conflicts based on existing or non-existing agreements between private individuals. Most of these situations are first and foremost regulated by the underlying agreement / contract. But experience shows – and believe me I have heard it a 100 times – that most of the participants in contemporary exhibition making do not engage in formal agreements. When conflicts arise the participants usually ask: »So what does the law say?« and the disappointing answer of the legal consultant is usually: »It depends on what you have agreed upon originally!« In most of the cases the parties to the conflict have to admit that they have not talked about the issue beforehand.
So we have to keep in mind that the guarantees for artistic freedom do usually not help when it comes to attempts by institutions or their representatives to interfere with the selection of works for an exhibition. Museum directors and curators usually have all the right to select – in fact selecting (and not showing) is the nature of curating. Not showing somebody's art is possibly a breach of a loan contract (as would have been the case if MACBA had pulled Ines Doujak´s work from the show, since she had a valid contract signed by the executive director) but it is only a constitutional problem, if the state had directly interfered with this decision. It is widely accepted in the legal field that constitutional rights have no direct third-party effect between private law subjects. Most likely you cannot sue the Kunstverein on constitutional grounds if one artists gets more production budget than the other and you could not complain at a constitutional court if the curator decides on not showing your newest work and instead prefers an old one. But of course you do not have to give your old work and if you do not agree than there is no show. Private autonomy overrules a lot of constitutional guarantees. It is because of private autonomy that employers are allowed to pay different salaries. Another very simple example: If I were to commission an artist for a wall painting in my living room and we would draw up a contract stipulating that I need to receive a very detailed sketch of the painting before it is being executed, that is of course a legally valid contract even though I would reserve the right to reject the proposed artwork. By the way: This is what usually happens with most of the commissions for public artworks. Artists are asked to submit proposals and artists are commissioned based on these proposals. Of course it would not be possible to insist on doing an altogether different work. All of you know these examples and we have to remember that most of the times most of these agreements are honored and that conflicts about them rarely arise. To make matters a liitle bit more complicated: Of course there is a relationship between Constitutional Guarantees and Private Law. The legally studied call it the »Indirect Third Party Effect«. There are two big areas, where this indirect effect comes in to play: The interpretation of Private Law by civil courts and the interpretation of contracts by these courts has to take into account that constitutional guarantees are important cornerstones limiting the interpretional range.
If two rights collide – be it in Public Law or in Private Law – there is no automatic superiority of Artistic Freedom. The respective courts and judges have to deliver structured arguments regarding the balance of the colliding rights. Within the scope of this presentation we cannot elaborate this further but I want to quote the German Federal Constitutional Court´s »Esra« Ruling, which is one of the leading cases regarding the relationship between »Personality Rights« and »Artistic Freedom« . An author has written a novel partly based on a relationship he had with a young woman. The novel included details which helped to identify the woman and her mother. It included details of the sexual relationship between the author and his ex-lover, details on the woman´s gravely ill daughter and derogatory comments on the ex-lover´s mother. While ruling that the depictions of the woman´s mother did not warrant a ban of the book, the court decided that the privacy rights of the young woman were inflicted by the author. The ban of the novel remains to this very day. Quote: »If it is clear in a case in dispute that the exercise of artistic freedom by the writer impairs the right of personality of another person, then adequate consideration must be given to artistic freedom when deciding the civil-law action based on the general right of personality which is brought against such impairment. Thus it needs to be clarified whether the impairment is so serious that artistic freedom has to take second place to it. In view of the high significance of artistic freedom, slight impairment or the mere possibility of serious impairment is not sufficient here. If, of course, it is possible to determine with certainty serious impairment of the right of personality, then it can also not be justified by artistic freedom«.2
We cannot go deeper here, but it is noteworthy that two leading cases in German constitutional law (the »Gründgens« Case and the »Esra« Case) where based on Privacy Rights of relatives. Returning to today´s topic and Ines Doujak´s work I have to tell you, that it seems as if Domitila Barrios de Chungara´s seven children would have the best chances for a lawsuit aiming at removing the work. To my knowledge this issue has not yet been raised in the discussion, which up to know focused on the work´s depiction of Juan Carlos, the former King of Spain. Do not get me wrong: I think that the work is discreet, relatively gentle and quiet and I am not suggesting legal action against it. But there is a valid legal argument which could be made on the basis of Domitila Barrios de Chungara´s personality rights which do not vanish with her death. It is not sure if the children would win, but the arguments could be very interesting.
Artists and Contracts
We could go into two different directions from here and we should probably leave it up for discussion which one you would prefer to go, but I want to roughly sketch out with which options we are left based on the legal distinctions that I talked about in the beginning. One direction – and always a fruitful one – is to concentrate on the contractual possibilities which are open to artists and other participants in the process of contemporary exhibition making:
Many of you know Seth Siegelaubs seminal work »The Artist’s Reserved Rights Transfer And Sale Agreement« which he wrote with the help of the laywer Bob Projansky.3 This is just one of the many examples of artists trying to achieve better control of their work and its presentation. But given today´s subject it struck me that most of these contracts want to protect the artists from being shown in the wrong places, in the wrong contexts or in the wrong manner, but that they rarely deal with ways to ensure that in fact they will be shown. Siegelaub´s contract for example only stipulates that the artist has to be notified about any exhibition of an already sold work by the buyer but it does not oblige anybody to show a work which has been sold.
Another famous incident regarding artists rights has been the removal of a work by Takis from an exhibition at the Museum of Modern Art in New York in 1968, which turned out to become a decisive moment in the formation of the Art Workers Coalition. But Takis removed his work – already in MoMa´s collection – himself, because he felt that it id not adequately represent his work. Subsequently the Art Workers Coalition demanded as one of their famous 13 demands that » The museum should recognize an artists right to refuse showing a work owned by the museum in any exhibition other then one of the museum's permanent collection«.4
If we only look at these two examples we see that – presumably – artists in the past have been more concerned with the possibility of work being chosen against their will than with the possibility that a work is not being shown at all. When preparing for this lecture I realized that most loan contracts for exhibitions are supposed to guarantee that the borrower gets the work. I have never come across a loan contract which would penalize not showing the work. But in fact – on a contract level – that's the only thing that eventually could have protected Ines Doujak´s work in the exhibition. Would the story have been different if she had had a contract which had stipulated a contract fine of – let's say – €20,000 in case the agreed upon work had not been shown? My guess is that in this case the controversy about the work would have happened prior to the signing of the loan contract because nobody in the museum would have dared to sign such an »outrageous« demand.
As I said I am prepared to follow up with the individual artists possibilities to negotiate his or her terms of engagement in the discussion. It is always a worthwhile agenda to develop new models for this relationship. But instead of being so purely practical I would like to use today's opportunity and the remaining time to complicate matters even further.
MoMA, New York 1968/1969
I do not want to comment on things which happened inside MACBA and among MACBA´S staff because I actually do not know what happened, but I can go back to MoMA in 1969 and report a story which happened there, because it is well documented.5 The image that you see is one of the most famous antiwar posters published in United States after the My Lai massacre in 1969. It refers to an interview by a participant in the massacre admitting that Babies had been among 504 villagers killed by regular US troops. It is a very well-known poster, but it is a not so well known story that MoMA, respectively members of MoMA´s senior staff, had originally agreed upon to co-publish it with the Art Workers Coalition. It was only hours before the poster was supposed to go to press that the curator in charge, Arthur Drexler then Director of the Department of Architecture and Design, and hopeful to one day being MoMA´s director, went up to the board, where he showed the final mockup of the poster to Walter Paley, then President of the Board of Trustees and then president of CBS, the major broadcasting station. It is reported that the Rockefellers were also involved in the decision. Both Paley and the Rockefellers were supporters of the US intervention. To cut a long story short: MoMA decided to not be affiliated with the poster and eventually issued a press release which stated the following: »The museum's board and staff are comprised of individuals with diverse points of view with come together because of their interest in art, and if they are to continue effectively in this role, they must confine themselves questions related to the immediate subject.«
But in the context of today´s discussion we are even ore interested by the following paragraph, which directly points to institutional governance: «Mr. Paley said that he could not commit the museum to any position on any matter not directly related to a specific function of the Museum, and that the use of the Museum's name on the poster was a policy matter to be decided by full Board of Trustees.«
When the issue was brought to the attention of the full board the poster was already published without mentioning MoMA. A report about the incident in the New York Times mentioned an aspect, which again adds another layer of complexity to the issues, that we are discussing today »The real issue is staff versus trustees analogous to the troubles at certain universities in which administrators mandated by their boards to deal with dissident students had the rug yanked from under them when it was felt they exceeded their authority«.To take this analogy to MACBA´s case would mean that MACBA´s Executive Director, had to go not because of attempted censorship but because he was not able to deal with the issue of »dissident students« (menaing: the curators and »their« artists) in a manner satisfactory to the board.
The Messy Part
We cannot pretend as if our relationships in the arts are determined only by law or private agreements without talking about power and politics. That is where it starts to get messy. The messy part happens not in the area of agreements. The messy part in these cases can usually be found in the backstage of the very governance of the institution itself. The messy business happens when board members talk informally to directors, when directors talk informally to sponsors, when husbands talk to their board-member wives or when wives talk to their politician-husbands. The messy business happens when government officials drink coffee with participants or – we also need to talk about that – when curators do or do not talk to their superiors and superiors do or do not remember what they were being told. To make matters worse – people are people and people do change their minds.
As much as these are theoretically legal issues in reality they are power games. Museums and artists are fully integrated into the parallelogram of economic and political forces of cities, provinces and states. At best these powers are balanced out by a package of everything we talked about: Good laws, clever institutional architecture, good contracts, good statutes and ethical people at work.
When trying to judge from the outside about the dynamics of the various levels involved at MACBA. It is tempting to quote Bertolt Brecht´s famous last lines of »Der Gute Mensch von Sezuan«, where the curtain is closed but all the questions remain open. But what we do know is that the battle at MACBA was eventually won and lost not on the precise high grounds of law but in the muddy waters of personality, power, and politics.
2BVerfG, 1 BvR 1783/05 vom 13.06.2007, Rn. (1-151),
This account is based on: Francis Frascina, Art, politics and dissent. Aspects of the art left in sixties America, Manchester University Press, 1998.