Artist Series: Aviva Rahmani’s work with VARA, land use and environmental law

Artist Aviva Rahmani speaks to Steve and Katie about her artistic practice investigating and using the law.  Her current work, Blued Trees Symphony, is a musical and visual art work installed along miles of proposed pipeline expansion on land subject to possible eminent domain.  Rahmani has copyrighted the work and plans to use the Visual Artist Rights Act to prevent the art’s destruction, thereby frustrating the building of pipeline.


You can learn more about Aviva Rahmani and Blued Trees Symphony here:

Episode Transcription:

Steve Schindler:  Hi, I’m Steve Schindler.

Katie Wilson-Milne:  I’m Katie Wilson-Milne.

Steve Schindler:  Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  And vice versa.  The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.

Aviva Rahmani:  So if you look down on any of the measures it recapitulates a simple refrain (singing).

Steve Schindler:  So, Katie, do you want to tell our listeners about the new idea that we have to have some shorter interviews with artists who engage with the legal world?

Katie Wilson-Milne:  Yeah, so we are going to be releasing a series of podcasts intermittently in which we interview artists who tell us about how their work engages legal structures.  So, rather than Steve and I and a guest examining the art world through law and legal structures, we are going to flip it and ask artists to tell us about how their art is inspired by and reflects the law.

Okay, we are here today with the artist Aviva Rahmani, who is going to share with us some information about her practice and her work using law as a medium and a tool in her work.  Aviva began her career as a performance artist founding and directing the American Ritual Theater, performing throughout California.  She graduated from the California Institute of the Arts and received a Ph.D. from Plymouth University in the United Kingdom.  She has presented workshops on her theatrical approach to environmental restoration and her transdisciplinary work has been exhibited internationally at many prestigious museums and exhibition spaces.  So, Aviva, thank you for being with us.

Aviva Rahmani:  I am honored to be here with you.  Thank you for inviting me.

Katie Wilson-Milne:  So just for our listeners who are not familiar with your work can you talk about your artistic practice and then also maybe when the legal system first entered your practice.

Aviva Rahmani:  Well what’s interesting about law is that it’s a system to preserve civilization.  And I often think about the role of art in the anthropocene as the glue that may hold us together through this very perilous time.  So if you think about systems that way, it’s a hop, skip, and a jump between law and the judicial process and any other system that preserves culture.  My interest specifically in the kind of law I’m working with now developed in the late 70s when a lot of artists were using appropriation.  And what I noticed was that appropriation was very often an excuse to rip off other artists, other people in general, and very often women.  That really incensed me.  So I began to inform myself and follow some of the arguments.  So when I had this opportunity that came up that became the Blued Trees Symphony I jumped on it because I thought, “wow, that will be really, really interesting.”  Take the concept of copyright law and culture jam it so that it serves the society as the law for Eminent Domain, which is supposed to protect property, is supposed to protect land owners and actually serves corporations right now.

Katie Wilson-Milne:  So what is the Blued Trees project?

Aviva Rahmani:  The Blued Trees project began when a small group of activists, who called themselves “fracktivists” and were fighting fracking, looked for an artist who could work with them.  They had been inspired by Peter von Tiesenhausen in Alberta, Canada who had copyrighted his entire ranch when the natural gas pipelines wanted to go through.  And that intimated them enough that they backed off, but that was a few years ago and it was never tested in the courts.  So they came to me and said, “Can we somehow copyright the trees that are in the path of these corridors?”  And I said, “no, that’s what Monsanto does.  We are not going to do that.”  But we could copyright the relationship between the trees, the community, the people, and the habitat.  And then I looked at where the pipelines were projected to go and I thought well that would be interesting.  Think of it as a miles long installation.  And if you are looking at it aerially you could think of it as a musical line.

So that was the beginning.  And then I designed a series of designated trees in those corridors that would represent musical notes but also would represent an obstacle to any heavy machinery that might want to go through.  And if you look down on that line it creates an actual musical score that can be sung and performed and I’m now using it as the basis for a complete symphony and an opera.

Katie Wilson-Milne:  So the idea is if you took an aerial view of the path of a proposed pipeline you are creating an art project along that path.

Aviva Rahmani:  Within that path.

Katie Wilson-Milne:  And there is no pipeline yet so this is sort of anticipatory.

Aviva Rahmani:  Correct.  Yes.  And I specifically only work with landowners whose land has not yet been condemned by the corporations.  That’s really important, because if the land has been condemned and they were to act on this project it becomes designated only as activist art which can’t be defended under copyright law.  And the landowners are liable to prosecution.  They could even be jailed.

Katie Wilson-Milne:  So you have the permission of the landowners to create this project on these trees.

Aviva Rahmani:  Correct.  In every case we are invited by private landowners and are given their permission and then we work with them to develop the project.

Steve Schindler:  And do you feel this as the work of visual art or a work of musical composition and does it matter for your purposes?

Aviva Rahmani:  I think it matters a great deal but I would rephrase that and say that this is a synsthetic project.  I’m not a synesthete but this is a cross over between audio, sound, music and the visual and the sculptural.  It was copyrighted as sonified biogeographic sculpture which would be a new category under the Visual Artists Rights Act, VERA.

Katie Wilson-Milne:  Right.  So the part of the copyright law that you are referring to invoking here is the Visual Artists Rights Act, right?

Aviva Rahmani:  Correct.

Katie Wilson-Milne:  And that’s different than standard copyright law which just gives you a right to the creative aspects of your work so someone couldn’t make a poster of your work without your permission or something like that, which is also true — that’s still true if it’s copyrighted.  But what the Visual Artists Rights Act does — and tell me, if I’m wrong — that you think you are invoking is this idea that the work, the physical work not just the image, can’t be destroyed without the involvement of the artists somehow.  That even though you don’t own the land, you don’t own the trees — so it’s as if you have sold the painting and you no longer own it — you still have some rights to that work of art because you created it and that’s what the Visual Artists Rights Act gives you that, that reach as the artist to control work that’s not necessarily located on your property.

Aviva Rahmani:  Well it becomes a flying wedge into a lot of interesting legal problems. For example, as you know the copyright law was initially created during the French Revolution.  The phrasing then was to protect the spirit of art.  That is very operational in Europe but it hasn’t really been tested in the United States.  So that’s one part.

Katie Wilson-Milne:  The moral rights, yeah.

Aviva Rahmani:  Yes.

Steve Schindler:  We tend to view copyright more in a sort of property scheme…

Aviva Rahmani:  Yes.  Economically versus the droit morale.  Correct.  So that’s one big issue.  What does the culture value?  Is it only economic?  According to the IPCC and the United Nations, no.  There is the cultural piece.  The cultural piece is just as important as the economic.  And then as you also know, there are many suits that are being moved along to the Hague that represent protecting rivers, mountains, other sacred places that all go to the question of Earth Rights.  In this case because the way the project was developed was specifically to make it integral with the local habitat, it cannot be moved.  So this would become an entirely different category, which is another interesting point, but also, it immediately comes up against Eminent Domain Law and that’s the part that’s really, really interesting.

Katie Wilson-Milne:  So yeah you are predicting or setting up this collision between Eminent Domain and our baby moral rights statute in the United States.

Aviva Rahmani:  That’s correct.  And baby is probably the right way to put it because as people living in the anthropocene if we want to survive we better grow up and get really adult about what we are protecting and why.

Katie Wilson-Milne:  So where is this project physically right now?

Aviva Rahmani:  It started in Peekskill, New York.  Each section of the project which I call a measure in the symphony is one-third mile long.  In Peekskill we sent Spectra Corporation a Cease and Desist law which they promptly ignored.  Rather they sent me a Dark Money Letter.  A Dark Money Letter is something that says, “we are going to destroy you if possible.  Whether it’s possible or not we will destroy you.”

Katie Wilson-Milne:  This is the company that has plans to build the pipeline and take over this land?

Aviva Rahmani:  Correct.  And they are the same company which the present president has heavily invested in that destroyed Standing Rock in North Dakota so they have a long history of ignoring community rights and limits and specifically the water.

Steve Schindler:  You said Eminent Domain has not been exercised yet and that’s really a governmental function.  What legal right does this private company have to be writing letters and ignoring your Cease and Desist letter?

Aviva Rahmani:  This is where it gets more complicated.

Steve Schindler:  I’m sure.

Aviva Rahmani:  And even more important and interesting.  Originally Eminent Domain Law was set up to protect “the scared home” and to support the public good.  And public good became more and more narrowly defined in the past maybe 20 to 30 years to mean the economic interests of large corporations.  And actually besides the question of whether the economic interests of large corporations truly serve the public good it’s been the conservative judges like Clarence Thomas who have taken exception to that interpretation and specifically used the term “a perversion” of the intention of Eminent Domain.  It’s also very interesting because when you talk about the scared home you immediately open the door to the question of Earth Rights and the sacred in general.  Then you go back to the spirit of art and what is the function of art?  And again, what is the public good?  Is it possible that the public good could include a spiritual aspect that is interpreted and expressed in art?

Katie Wilson-Milne:  You raise an interesting point and there are many areas in the law where politics and legal interpretation don’t neatly align the way I think we think they do on the hot button issues today.  But you are right.  There is expansion of Eminent Domain where the government can take more and more land for private purposes and not public purposes.  We have seen that evolve over time and it is some conservative judges who have said wait that is an expansion of government power.  I don’t like expansion of government power.  So they are the ones who are really against that.  That is an interesting pattern that is something to think about.

Aviva Rahmani:  It would be particularly interesting with Kavanaugh because he touts himself as a conservative.  Will he then come into conflict with some of the other judges like Thomas?

Katie Wilson-Milne:  Or will he agree?

Aviva Rahmani:  Or will he agree?  Correct.  From a political point of view one would anticipate that he couldn’t possibly disagree since he has allied so strongly with this president.

Katie Wilson-Milne:  Yeah.  I don’t know.  I mean I could see that he would take the Clarence Thomas view that this is an expansion of government power since he likes to say he is an originalist and a literal interpreter but we will see, Aviva, we will see.

Aviva Rahmani:  We certainly will.

Katie Wilson-Milne:  So in this project are you working with lawyers?

Aviva Rahmani:  Yes.

Katie Wilson-Milne:  I mean it sounds like part of it is the statement of the project and what the emotional impact of viewing the work and thinking about it.  But part of it actually has an activist function.  You are planning to actually do something.

Aviva Rahmani:  I’ve been very careful about the term ‘activist’ because if it’s termed activist in the courts, it’s immediately disqualified.  So I have worked very hard on establishing the evidence that it’s permanent.  That it has been very carefully thought through as an esthetic project, that I have the support of art professionals.  For example, in the mock trial, Ben Davis was the person who swayed the judge.  And he swayed her on the basis of defining what is important art?  The mock trial came about because although we really wanted to litigate the project and we had several miles by then that we wanted to litigate, and we were hoping that we might have done a test case in Virginia because we had over 200 trees that had been painted as part of the project.

Katie Wilson-Milne:  Meaning you would bring claims under the Visual Artists Rights Act to prevent the destruction of that land because it would also have destroyed the art work?

Aviva Rahmani:  Correct.  So in Virginia what happened was that FERC, Federal Energy Regulatory Committee in effect ignored all the community input and rubber stamped the corporations to simply go forward.  When we spoke with the lawyers there what we realized immediately was that we needed local lawyers because of the jurisdictional details.  The lawyers there were afraid that they didn’t have enough experience with copyright law.  The copyright lawyers I was already working with like Gale Elston in New York and Patrick Riley who was working out of California didn’t feel that there was enough case law for them to be able to say to the local lawyers, “go forward on this and then we can stand on our advice without being held liable.”  So in the end we put in letters and testimonials about the importance of the project culturally, locally to the community and so on and so forth but we could not go forward legally.

Steve Schindler:  Right, because isn’t one of the requirements of invoking VERA in the way that you would like to invoke it – and we have discussed this on a prior episode relating to the 5Pointz street art – is that you have to show that the work that you are trying to protect is of a recognized stature.

Aviva Rahmani:  Exactly.

Steve Schindler:  That’s a very vague term and it’s not specifically defined in the statute.  But how did you go about trying to make that case?

Aviva Rahmani:  That was actually my priority from the beginning.  Patrick Riley was the lawyer who filed the initial copyright registrations.  And the advice he gave me then was, “win this in the court of public opinion before you step into the court room.”

Steve Schindler:  That sounds like good advice.

Aviva Rahmani:  It was really good advice.  So I would say the first 2 years of the project my entire focus besides actually expanding the project was to get articles written, to see films made, to do interviews like the one we are doing right now so we could build up a body of evidence to bring to trial.  The mock trial came about because we had not been able to find a lawyer who was willing to litigate and I was really angsting about this with Deborah Fisher at a Blade of Grass and she said, “why don’t we just a mock trial?”  And I had thought if we went to trial, that in itself would be a fascinating performance.

Katie Wilson-Milne:  Yeah.

Aviva Rahmani:  But this was another way of coming at it.  I know you participated Katie.  You did a phenomenal job.  Everybody did a phenomenal job in pulling that off.  We had April Newbauer, who was the federal judge from Queens.  We had real jury, we had real lawyers, we had real witnesses.  There are lots of wonderful photographs we got out of it.  And the upshot was that we did get an injunction.

Katie Wilson-Milne:  So how was it set up?  Did you know how it was going to go ahead of time?  How spontaneous was it?  How scripted?

Aviva Rahmani:  It was not scripted at all, but the roles were very clearly defined.  So, for example, we brought in one of the trees that had been cut down and we had some somebody be a witness translator for the tree.  And we piped in the sound of part of the symphony and then she translated what that music meant.  What it meant to the forest to be cut down to the rest of the tree’s family, to the water and so on and so forth.

Steve Schindler:  And did you videotape this?  Of course.

Aviva Rahmani:  Of course.

Steve Schindler:  So here’s an interesting at least observation from my point.  As lawyers, when we get ready to go to trial and have a case we often do mock argument or mock trials.  The reason that we do them is so that when we go to court we can refine our arguments.  Sometimes you have a mock jury to understand how jurors are going to relate to the arguments that you have been making to lawyers during the case.  But do you view the mock trial as part of the work of art or a predictor?

Aviva Rahmani:  Absolutely.  A minor detail on the mock trial was I don’t know how to put it in my CV.  It can’t be categorized as a one person show.  It was initiated by A Blade of Grass.  It wasn’t an exhibition in any conventional sense.  It’s not even part of a group exhibition.

Steve Schindler:  And who was the author?  I mean I guess it’s a group project of some sort.

Aviva Rahmani:  Yeah. So it goes to copyright questions.

Katie Wilson-Milne:  It’s a performance with many authors.

Aviva Rahmani:  It was definitely a performance.  So all I do in my CV is I have an initial paragraph of narration that says, “and we had a mock trial on April 20 and we got an injunction.”

Katie Wilson-Milne:  So, one interesting thing about your work, Aviva, is how closely you are working with lawyers.  That you are not just sort of using some legal concept as an inspiration to expose an injustice or just draw attention to an issue.  You are actually working with the law with the idea that you are going to do something within the legal system.

Aviva Rahmani:  Right.

Katie Wilson-Milne:  And we find we work with people in the art world and artists as well and you know there can be a real difference between how an artist looks at an issue and the way a lawyer looks at an issue.  And I’m wondering how you feel in your collaborations with lawyers?  If you have observations about coming to these issues from different places, how easy it has been to work with lawyers or you know what you noticed about the different places you are coming from?

Aviva Rahmani:  Well as you mentioned at the beginning, I started as a performance artist, and I started in performance art from a conceptual point of view.  So it’s very easy for me to segue into any other discipline because they are all systemic issues.  I find the question of what does the law do very parallel and very equivalent to the question of what does art do?  What does music do?  What does a forest do?  It’s all functional questions.  These are fascinating questions but they all feed into each other.  I think the great mistake that many of us have made in trying to function in the anthropocene is that we stay in our silos, we stay in our disciplines.  We think that if it’s a policy issue then it’s just going to be politicians that deal with policy and see how effective that is.

Steve Schindler:  I think lawyers are brilliant in staying within their silos.  It’s amazing that you can get them to come out.  One of the interesting things to me just in terms of craft is when you think about the craft of law, you think about writing in a way that tries to narrow and be very specific about meaning.  You don’t want to draft a contract and have multiple possible interpretations even though sometimes you inadvertently do whereas art is all about multiple meanings and layers.  And I think it lends itself to be a more flexible way of looking at the world than law can sometime be.

Aviva Rahmani:  I’m not sure that’s true.

Steve Schindler:  Okay.

Aviva Rahmani:  And one of the things that somebody said to me when I was feeling particularly despairing about this whole process was judges are people.  They are just as influenced by the media and the conversations they have at dinner as anybody else.  As far as how specific the details are in the law versus in art there were a lot of ideas I had to think through about exactly where is the permanence of the project?  Exactly where is the art world conversation about the project which was really what swayed the judge.  But in art you do the same kind of thinking.  How wide must the mark on the trees be in relation to the trunk?  Exactly what pigment am I using?  Exactly how will there be an acoustic ecology that evolves because the paint has buttermilk in it.

Steve Schindler:  That was a question I had speaking of the paint.  The paint that you are using, I assume that it is friendly to the trees in some way – that just slapping oil paint on trees would probably be inconsistent with what you are trying to do.  And yet there is a notion in the Visual Artists Rights Act and Copyright in terms of permanence.  And how does the pigment relate to this sort of notion of permanence?

Aviva Rahmani:  From the point of view of being an artist that was one of the most exciting parts of the whole project.  The slurry that was used to paint is a casein.  Casein means a pigment that’s mixed with milk.  In this case we were mixing non-toxic ultramarine blue, which was translucent, with buttermilk.  And, buttermilk is one of the ways you grow moss in Japanese gardens.  The mark on these trees we photographed lasted for maybe 2 years, maybe 3 years.  But because it had the buttermilk it became part of the ecosystem of the tree, of the roots, of the canopy.  And therefore, in effect, it had a second life that emerged from the tree’s interaction with the art project.

Steve Schindler:  And did you consider, I mean it’s interesting because one of the early cases involved in the Visual Artists Rights Act comes out of Chicago and Kelley Chapman and the case about the gardens.  And the courts observation in not applying VERA was that these were works that were subject to sort of natural change and evolving and therefore not sufficiently fixed.

Aviva Rahmani:  Ephemeral.

Steve Schindler:  And so is that something that you considered in selecting the paint?

Aviva Rahmani:  Absolutely.  One of the first lawyer that we spoke with after I had spoken to Patrick was Jonathan Richman, and that was one of the first case studies that he brought up and said well that was a ephemeral.  How are you going to prove that this is permanent?  That’s when all these issues came in.  The permanence of the trees themselves, which is the base for the project, the permanence of the relationship to the water shed, to the entire habitat, the permanence of the paint, and how the paint then became integral into a longer term project and how the entire project became the basis for this other much more complex performable piece which is symphonic and operatic.

Katie Wilson-Milne:  So what’s next?  Are you expanding the project physically?  What is on the table for bringing legal action?

Aviva Rahmani:  Absolutely.  Well the first task is to continue to expand the project.  So this interview helps expand the project, because it reaches a wider audience, a wider circle of public opinion.  The symphonic aspect is very structured conceptually so the very first measure in Peekskill was the overture.  The first movement of the symphony is the painting and that continues.  We just did a measure in Canada – Saskatchewan – and there are other inquiries about doing it elsewhere across this continent and some interest outside this continent.  There is interest in Japan, for example.

Katie Wilson-Milne:  Is there a fracking problem in Asia or in Europe in the same way?

Aviva Rahmani:  There are fracking problems everywhere one way or another.

Steve Schindler:  And does the fact that the legal system is different require you to sort of start the study anew? Obviously Japan has a different legal system than we do.

Aviva Rahmani:  There are different details but the two ideas legally that hold no matter where you are in the world are whether or not the government has the right to take land for private purposes and what protection is there for art and culture in general?  Then you come up against a lot of big issues.  For example, someone was interested from China.  I hate to think what I might come up against there but it would be very interesting.

Katie Wilson-Milne:  There might not be as much process involved, but it would be interesting.  But you know to Steve’s point you might have a different kind of success in Europe where these moral rights are really engrained in the legal system in a way they are very unfamiliar in the United States even though we have this small protection for visual art.

Aviva Rahmani:  On the other hand all these pipelines in this country are going to Europe to compete as a resource with Russia.

Katie Wilson-Milne:  So there may be more material there for you.

Aviva Rahmani:  Yeah.  So it gets complicated as we go along and it goes deeper and deeper to the question of Earth Rights and the relationship between Earth Rights and art and culture in order to survive this incredibly ominous period in human history.

Katie Wilson-Milne:  Do you think you will actually bring a lawsuit?

Aviva Rahmani:  I would love to.  I would love to.  Whether that will happen or not, I don’t know.

Katie Wilson-Milne:  All right.  We’ll have you back to talk about these other projects.

Steve Schindler:  Thank you so much.  Thanks for joining us today.

And that’s it for today’s podcast.  Please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at and if you like what you hear give us a 5-star rating.  We are also featuring the original music of Chris Thompson.  And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.

Katie Wilson-Milne:  Until next time, I’m Katie Wilson-Milne.

Steve Schindler:  And I’m Steve Schindler bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  And vice-versa.  The information provided in this podcast is not intended to be a source of legal advice.  You should not consider the information provided to be an invitation for an attorney client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.

Music by Chris Thompson.  Produced by Jackie Santos.