Performing the Paradoxes of Intellectual Property – Tactical Questioning

Cornelia Sollfrank
Q: You have recently completed your PhD, what was the topic of your research?

A: My research was a practice-led investigation into the conflicting relationship between copyright and art, i.e. it was interdisciplinary research involving different disciplines such as aesthetic theory and practice, and law. The incentive to conduct this research was an act of censorship that I experienced in my practice as an artist. In 2004, a planned exhibition was cancelled due to alleged copyright infringement, because I used the motif of the Warhol Flowers for an experimental continuation of postmodern authorship-critical concepts under the condition of digital networked technologies. This incident aroused my curiosity and I wanted to explore what the connecting lines between my art practice and the framing concept of intellectual property were. Moreover, I was aware that ‘my case’ was not an exception; since intellectual property has become a central concept to safeguard the marketability of intangible goods within the knowledge economy. Stricter copyright laws and their harsher enforcement increasingly have also led to legal problems for artists whose practice is based on the use and reworking of existing copyrighted material. Thus, I was also interested in getting a deeper understanding of these dynamics and in particular the role art and artists play within these developments.

Q: How did you conduct your research?

A: The advantage of research in the art context is that it is not only possible but even required to develop one’s own methodology. Each single research project demands its own methods. They are usually developed on the basis of a specific art practice, its contextual theory, the topic of the research and the desired outcome.

The starting point for my research was the paradoxical concept of intellectual property. The basic idea of intellectual property is to find a balance between the protection of the economic and moral interests of creators and innovators and, at the same time, to enable cultural, scientific and economic innovation. Yet where creation and innovation rely on access to, and the use of protected works, proprietary rights hamper new creation and innovation. This paradox has always existed, but due to the technological, economic, legal and cultural developments that have taken place since the mid-1990s, it has turned into a central problem of the information society. My project focused on the paradoxes produced by copyright, as one form of intellectual property, in the light of art practices that are based on the use and reworking of protected material.

Since it was clear from the beginning that I would not be able ‘to solve the problem’ through my research, the challenge was to come up with a methodology that would lead to results that still could contribute to a solution by producing new knowledge. For that reason I chose the concept of ‘performativity’ to be the methodological paradigm of my research as it allows for the conceptualisation and dramatisation of a subversive artistic approach to law. To develop this approach, I drew on Brad Haseman’s concept of performative research as a third research paradigm alongside the established paradigms of quantitative and qualitative research; and additionally introduced Judith Butler’s juridical model of ‘performativity’ as well as Julie Stone Peters’ theory of law’s performative nature. The combination of these theories resulted in a practice-led methodology that allowed a substantial part of the research to be conducted through art practice.

Q: Could you please describe the practice part in more detail and explain what the role of the artworks is in the context of the research?

A: The practice part consists of four consecutively produced artworks, which explore different aesthetic, theoretical and legal aspects of Internet-based artistic appropriation and reworking. The works that in their entirety form the project This is not by me all use Warhol’s iconic Flowers as an exemplary case. In the first part are the anonymous_warhol-flowers, digital collages produced with the help of the net.art generator, an online computer programme. They relate established practices of appropriation to the aesthetic potential of digital networked technologies. The ambiguity that results from shifting between representing the new aesthetic and technological paradigm of the ‘networked image’, which exists beyond traditional notions of authorship and originality, and the traditional autonomous image, is essential in performing the dynamic conflicts caused by intellectual property in the network society–on the Internet and in the art gallery. The video lecture copyright © 2004 cornelia sollfrank is a thorough investigation of the unanswerable question: who is the author of an automatically generated image? The investigation is based on legal studies and adopts the style of legal expertise, while clearly indicating the gap between the ‘professional’ and the ‘amateur’. For this method, I used the term ‘performative dilettantism’, which in my case means the artistic adaptation of legal knowledge.

The following project, the video installation Legal Perspective brings in legal professionals. The method of conducting semi-structured interviews provided the basis for the work, in which four copyright experts elaborate on the legal implications of the net.art generator and the anonymous_warhol-flowers. Despite the professional contradictions it generated, the project clearly demonstrated that the creation of new works that build on existing ones takes place in a legal grey area. Legal Perspective draws on law’s dependence on theatricality and exploits it for the purpose of staging legal experts who perform the limitation of the law as well as its limiting function for appropriative art. In order to complement the preceding dominant legal assessments that had ultimately proved unable to clarify the situation, the basic idea of the video I DON’T KNOW is to obtain permission from the rights holder. The fake video interview shows that Warhol does not have any conceptual, aesthetic or legal problems with the use of ‘his’ images. However, combining authentic and newly shot material in a montage technique results in a short cut between form and content. The artwork that symbolically asked for permission led to a letter of complaint by the original film-maker and ended in having to ask for his permission.

The strategy I chose for the practice part was to emphasise the identified problem by performing and staging it, thus contingently contributing to a subversion of the law, which might eventually contribute to a solution. The different artworks are not just expressions of my research in their own right, but actually perpetrate the copyright infringement. The projects themselves are partly situated in the legal grey area and therefore do not just function as conventional artworks, but rather perform the problem; they “bring into being what they name.” This is what Brad Hasemann calls “the double articulation involved in creative arts research.”

Q: What is the role of theory both in relation to the practice and for the research in general?

A: It would not have been possible to realise the artworks without sound legal knowledge. Therefore, it was necessary to study legal literature and also involve professionals at various stages. Moreover, the theoretical contextualisation of my art practice allowed for the exploration of the relationship between a specific artistic practice and its legal framework. In summary, it can be said that there is a pendular movement between practice and theory and it is only through their interplay that the specific outcome of my artistic research was able to be achieved.

Q: What is the outcome of your research?

A: There are several levels of outcome. One level is the practice part, which, of course, is ambiguous and open to interpretation. This level requires an active engagement from the side to the viewer. Additionally, there is a written thesis that contains a detailed description of the artworks, but also offers a substantial contextualisation of the practice part.

Q: What is your opinion on the widespread criticism of artistic research: as another effect of neoliberal education policies or the scientification of art?

A: I think it is important to understand the dynamics and the political framework within which one is situated, and also to be aware of the traps of artistic research. It is definitely advisable to insist on the specific epistemology of aesthetics as something different from traditional scientific methods–which, by the way, are not uncontested within their own disciplines. Therefore, instead of theoretically criticising or condemning artistic research, I would find it more useful to work on its conceptualisation as a field different from scientific research. This is the only way to transfer certain aspects of freedom from art to artistic research and safeguard its autonomy towards traditional science and other attempts of instrumentalisation. Generally, I do not follow the juxtaposition of autonomous art and artistic research that idealises art construing it as the ultimate domain of freedom and purity as opposed to artistic research where art is said to automatically become instrumental and functionalised. In my view, this is an ideological and bourgeois understanding of art that ignores the fact that art implicitly always has served specific purposes–as an instrument to stabilise power relations in society. In that sense, artistic research could also be understood as an escape attempt from art’s traditional dependency on the bourgeois art market using the openness and undefined aspects of an emerging field for the invention of a new notion of art.
 

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