Marina Abramović – Is “The Artist is Present” protected by copyright law?

I watched the fascinating documentary about the performance artist Marina Abramović on HBO last night.  Marina is considered the “Grandmother of Performance Art” and has done some amazing pieces, many involving nudity and violence.    If you have HBO, I would definitely put it on my “must watch” list.  Last year, the Museum of Modern Art did a retrospective on her career, and she brought in young artists to recreate some of her most famous pieces,  including one where a couple stood face-to-face in a doorway, completely nude.  People who wanted to get from one room to the next had to slide their way between the naked couple, probably a first for most of the patrons.

Marina herself performed a new piece called “The Artist is Present.”  From March 14 to May 31, six days a week, seven hours a day, Marina sat in a chair, not speaking, with patrons invited to sit opposite her.  People came from all over the world to sit in the chair opposite her and spend a few minutes staring into her eyes.  The documentary shows the fairly severe physical and mental strain this caused on Marina as well as the many emotional reactions from those who were fortunate enough to get into the seat (toward the end of the run, people were camping overnight to get a space in the line).

But one thing that struck me while watching the film, coming at it from a copyright lawyer’s perspective, is how elusive performance art is and how difficult it would be to protect the performance art pieces under copyright law. In the film, her gallery dealer explains that to make money, she will issue limited edition photographs commemorating her performance art pieces.  He says that some of these photographs, which originally sold for $2,000 – $5,000, are now worth $25,000 to $50,000.

But while this may work for her to monetize her work, copyright to the photograph would only protect the photograph itself, not the underlying performance art.  For a piece like “The Artist is Present,” which involves sitting in a chair, there would be nothing to stop another artist from taking the idea and performing it somewhere else.  Because the performance art is uniquely created in the moment, another artist attempting the same thing could do so without fear of a lawsuit for copyright infringement (although that artist would probably be loudly and rightly derided).  Because performance art can consist of a simple idea, acted out, and since copyright does not protect mere ideas, anyone is free to use those ideas in their own way.

In the documentary, Marina gives a speech where she recites her “Rules for Artists.”  One of these rules was “Artists do not steal from other Artists.”  That is a good rule for her to have, and other artists to live by.  Because the copyright laws would probably not protect her if they do.

 

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