How Artists Mess with the Law

Steve and Katie have a wide ranging conversation with art historian and former lawyer, Joan Kee, about the topic of her new book, Models of Integrity: Art and Law in Post-Sixties America. Their conversation probes artists’ embrace and rejection of legal structures in contemporary America, as well as artistic indifference about and dependence on the law.

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: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premiere litigation and art law boutique in New York City.

Steve Schindler: Hi, Katie.

Katie Wilson-Milne: Hi, Steve.

Steve Schindler: So we’re here with Joan Kee. Joan is both a lawyer and an art historian, which is perfect for the Art Law Podcast, I think. Joan was a practicing lawyer in New York and Hong Kong for several years before she decided to go back to school and become legitimate, and get a PhD in art history. And now, she’s an Associate Professor in the history of art at the University of Michigan. And we’re here to talk to her today about her new book, Models of Integrity: Art and Law in Post-Sixties America. Welcome to the podcast, Joan.

Joan Kee: Thank you.

Steve Schindler: So, tell me a little bit more about your background and how it was that you came to write Models of Integrity.

Joan Kee: I majored in art history as an undergraduate, and my field was modern and contemporary art. One of the things that struck me was that say, from the 1960s onwards, that art became much more complicated, more difficult to execute, that we talked in class a great deal about, say land art. So art that uses vast tracts of land, or engages, say extensively with the world outside the museum or the gallery, and that was the art itself, so thinking about art and part of the everyday. And I always wondered about things like insurance or say, waivers just because my father’s an economist, and I grew up with a T-shirt that actually read “risk management is life.” So, when I took these classes, I would always ask, well, how did the artists get permission to do X, Y, and Z? Because I know if I tried to make artwork out of a deserted piece of land that…

Katie Wilson-Milne: And who does that land belong to?

Joan Kee: Exactly. So these are sort of questions that have always lingered in the back of my mind, I went to law school immediately after undergraduate, which was not a course of action I would recommend for everyone. One of the reasons being is that, so I went to Harvard for law school, which at that time actually did offer a course in art law. It was one of the only schools I know that actually did offer that, and much of that class was focused on constitutional issues, freedom of expression, or cultural property, in large part, because again, the idea of art law. So it’s not really a solidified field as, Katie and Stephen, you know, very, very well. It’s something that’s cobbled together from, say, labor, employment, contract, torts, all different fields or sub fields of legal practice. And one thing that I’ve noticed was that class was that they tended to treat artworks as objects–as physical objects, when in fact, most of what we know, or from my own background, when we think about contemporary art, it’s actually thinking about immaterial works, performance, installation, collaborative practices, works that were never intended to result in a final physical manifestation of a thing. So it’s always thinking about, “Okay, so how do we think about the law in relation to the majority of what is considered to be, sort of, the highest expressions of contemporary art?” But the two didn’t really click together until many, many years later, in part, because again, that the way that the art law field, and I use field very loosely, has developed now, you can actually have a career in art law practice, you have law firms that actually have whole fields and areas with specialization. But…

Steve Schindler: We try.

Joan Kee: But 20 years ago, now I am disclosing my age, indirectly. 20 years ago, I said, “well, could I have an art law practice?” And my professor said, “well, you could do pro bono. But you can’t make a living off of that, maybe you could be a director of someone’s estate or work at a museum.” But that was pretty much the extent. Now, I realize this is something of a long segue into explaining why I wrote this book, but I don’t think it wouldn’t have been possible to write this book, say 20 or even 10 years ago, in part because you didn’t have, say, the critical mass of interest from the law side about what is the place of art, but also the place of culture on the one hand, and then now say, in this intensely politicized climate, that there is a real interest in thinking about art and politics beyond, say, meaning or beyond, say, gestures of protest, and more along the lines of, well, what allows art to exist in the way that it does today. And in many ways, you can’t have contemporary art without thinking about the law. So law in many ways is contemporary art’s fundamental surround. Any work that’s made today, law is involved, whether it’s through contractual obligations, or whether it’s through questions of negotiation, which arise frequently or say, tax law. So even though I am officially retired from the practice of law, as per the New York Bar Association, I get about two or three requests per week, from artists who are not US citizens, who ask about tax all the time, these are questions that come up with increasing regularity because we live in such a globalized art world

Katie Wilson-Milne: Yeah, and I think it’s still difficult for a law student coming out of law school, to have a full practice of art law, I think that doesn’t really happen. You need to go do something else, pick a related specialty, and find your way there. I mean, I think it’s still not robust or lucrative enough, you know, for that kind of entry out of law school into the practice. But certainly many more students and lawyers are aware of it, and many more people are practicing. I think it’s interesting that, you know, the way the art law field really began in private practice was through tax and private client groups who were dealing with wealthy individuals who had art that either wanted to dispose of the art, think about how to deal with their state. And there are so many tax issues around personal property and art being a very expensive example of personal property. We don’t practice tax, we don’t do estate planning. But we’re very aware that this field, you know, in some ways, lives in that practice, and started in that practice in many ways. But maybe you can talk a little bit more about the subject of your book and if you think there is a central thesis, or you know what your messages.

So, something about art and law. So that connection has existed for centuries that we have lots of scholarship about, say, Rafael negotiating contracts with his patrons. But one thing that was very telling is the reason why the book especially starts in the 1960s, was, you had so many artists wanting to work outside the traditional realms of the gallery or the museum. And many of these artists had to involve law in some way that you had artists actively reaching out to lawyers to collaborate on projects. One example might be the artist Suzanne Lacy whose retrospective at SFMOMA, I think it just closed or is about to close, that she had actually contacted Volunteer Lawyers for the Arts, or at least, the analogous organization for that in California to collaborate on a work called Body Contract, which came out one year after Roe v. Wade was decided. And in it, what she did was to price all of her bodily organs. So it wasn’t the organs that were necessarily for sale, it was selling the right to dispose of the organs as she wished. This was actually a comment on the Health Care System. She says it wasn’t about Roe v. Wade at all, but again, that correlation is you know, very prominent.

Steve Schindler: Actually, you talk about her a lot in your book and another piece that she worked on called Three Weeks in May, which I thought was really interesting, too, is another inroad into the legal process through the mapping of, I believe, places within a geographical area where women were raped in the 1970s.

Joan Kee: That’s correct. And Three Weeks in May was interesting for me, because often the way in which the art and law relationship is characterized, especially from say, the art side, and by this I mean artists, art historians, critics, curators is that the law is something that does something to art, and it’s usually something not good. It’s that law’s an instrument of oppression. But Three Weeks in May is unusual, because it was collaboration between the LAPD and Lacy to track all of the rapes that had happened to raise awareness about a crime that was widespread and still is, to implicitly, perhaps bring about some change in the legal system. So the book is structured around three general nodes. So one would be legal practice, another would be legal theory, and the other would be something that, for lack of a better term would be called the artistic imagination. So I wanted to focus on practice. One of the reasons being is that both art and law involve extensive interaction between human beings who, despite the influence of law and economics, on the study and practice of law, human beings are fundamentally irrational and artworks perhaps prepare individuals for that irrationality and that sort of give and take of that human interaction is something I wanted to emphasize. The other was legal theory as, Katie, you and I spoke a little bit about this before this podcast about artists perhaps having to be accountable to extra artistic standards and those standards being, say, legal or ethical in nature, this is something that becomes increasingly prominent from the 1970s onwards. Right before I came here, I actually did a Google Ngram search for the terms “litigation” and “lawsuit,” and from the 1970s, it just skyrockets. This is something that is also very much symptomatic, again, of how art inevitably becomes embroiled in, say, tensions that have to be resolved through legal means.

Katie Wilson-Milne: One of the interesting things that threads throughout your book is this tension between artists rejecting the law or, you know, ignoring the law, and using it as a tool. And that both of those things are happening in this period with different artists and I’m wondering if you can talk a little bit about, you know, whether there is a fundamental tension or incompatibility between artistic practice and, you know, thinking about the rule of law in civil society? And if that is, why would that be? Or if that’s just sort of a fiction, you know, of some artists or some art historians, and really for most artists that that’s not a fundamental incompatibility?

Joan Kee: I think it can vary. So one example where, say the incompatibility doesn’t necessarily apply would be, say, with Chinese artists. The book focuses mostly on U.S. examples, but looking ahead at, say, future projects is to think about art and law in different jurisdictions, because I think that’s going to be a real challenge as artists move from place to place or have simultaneous residence in multiple countries, is, for example, with Chinese artists, that transaction now becomes the paradigm for relationships. So in the past, when you had different artists striking up bargains or agreements, because they happen to be friends, or neighbors or relatives, now it’s all ruled by say, transaction, and especially through contracts, one would be hard pressed to find a demographic more attuned to the U.S. legal system, then say, Chinese artists whose works sell for…

Katie Wilson-Milne: That’s fascinating, because U.S. artists virtually never use contracts when they sell their work. That’s really interesting.

Joan Kee: And so I also wonder, in terms of say, the lack of compatibility between art and law, I think that does apply to certain artists for whom violation is a fundamental part of their practice that they see that certain laws are not enforced. I’ll talk a little bit about artists who commit petty crimes or crimes that the law does not see as worthy of prosecution. For them, their idea of what comprises interesting or compelling artworks is based on how is it that art can make a space for law to reflect upon itself and to reflect upon its own limits. But at the same time, I think the vast majority of artists, they don’t really come into contest with the law. I think that tension is certainly there, but it’s not, say, uniform.

Katie Wilson-Milne: Where does that come from, that sense that the legal system, you know, rather than on the whole mix of things that it is liberating, oppressive, inspirational, you know, depressing, like, all the things that law has enabled and continues to enable, why is it that artists or artistic practice tends to gravitate towards seeing laws as constricting, or at least the examples that you provide in the book?

Joan Kee: Everybody likes a good fight. Everybody likes, you know, the black and white; the binary is still something that has a great deal of appeal. So you know the helpless oppressed artists against the big bad arm of the law. I mean, that’s still a narrative that gets rehearsed over and over again, but that’s also based on a very narrow understanding of the vastness of law. I mean, it’s — to say that law is unequivocally bad is like saying air is unequivocally bad.

Katie Wilson-Milne: It’s so interesting to hear that, because in New York State, and I think is true in California, as well, and maybe many other states in the United States, the law around cultural production is very protective of artists, the default laws in New York, and much more so than it protects dealers or collectors, other players in the financial art world. And yet, even though it is one of the most progressive statutes, in terms of protecting artists, artists rarely utilize it or educate themselves about it in New York. Now, maybe that’s changing a little bit and there are definitely exceptions to that. But I do think generally, the law is very progressive and artist-friendly in New York, and yet artists are not engaging it to their benefit. And, you know, I think about those examples where I wonder if a prior assumption or predilection to be contrary to all kinds of legal forms actually ends up hurting artists because they’re not utilizing the law to their benefit.

Joan Kee: And I think that’s also based again, on that very sort of narrow view of not only what law is, but what else the law can do. In terms of say artists trying to utilize the artist-friendly nature of law in New York State, an example might be someone like Aviva Rahmani.

Katie Wilson-Milne: Yes, we had her on the podcast, actually, yeah.

Joan Kee: Her work is actually based on a precedent in Canada. So a man named Peter von Tiesenhausen in Alberta put up a segment of white fence, which is actually based on Christo and Jeanne-Claude’s Running Fence. So this is also thinking about connections, and mining companies wanted to buy his land, or at least buy the rights to drill into his land for the oil, and he was able to stop them by saying, well, my land itself is an artwork.” In part because Canada has stronger moral rights protections than the United States. But this is something that sparked the imaginations of other artists, I know that in addition to Aviva Rahmani, there are other artists say in places like China or Japan that have been trying to claim well, the land is my artwork, therefore, these other interests can’t come in and just regard the land as something that they can exploit…

Katie Wilson-Milne: Yeah, and to add more detail to those contexts the issue that Aviva — she’s working under a federal statute, which is the Visual Artists Rights Act, which provides the minimal moral rights, non-economic rights that artists have in their cultural production in the United States, meaning an artist may have a right to a physical object that someone else owns. So a very strange concept for most people to think about. So Aviva and other artists are working to create art on land they do not own to prevent the destruction of the land, the mining of the land. It’ll be really interesting how courts deal with that. My guess is, it won’t go anywhere in the United States.

Steve Schindler: That’s a good guess. But it’s interesting, so that’s an example of an artist that is using the law for an activist purpose. And there are other artists, of course, that also are interrogating the law in different ways. There’s a quote that I stopped at it in the introduction to your book, because as our listeners know, this is a podcast exploring the places where art intersects with the law, we say that every podcast and then I’m reading your book, and I’m quoting, it says, “This is a book about art that ‘messes with the law,’ as well as law that calls into account various assumptions, underwriting artistic production.” So how in your view, does art “mess with the law?” And who are the artists that are doing it? I mean, I can think of a couple, I’m not sure that you touched on them. You know, Cameron Rowland, for one sort of messes with the law, Titus Kaphar is also now messing with the law, in particularly his most recent exhibition, [The] Redaction. Is that the kind of thing that you’re referring to, or is there something else?

Katie Wilson-Milne: So one example that I talk about in the book that also might be timely. So Gordon Matta-Clark has a couple of exhibitions that are on right now. One is in Montreal, and I think there’s another here in New York. So, when Gordon Matta-Clark, very active in the 1970s, what he did was to illegally take one of the crumbling, abandoned piers, it wasn’t legally abandoned, the city of New York still owned the pier. But what he did was to cut out these giant orifices and sort of this half-moon or sail-shaped holes in the side of these buildings. For him, the way I see his work, rather than thinking about it in terms of vandalism, that was the NYPDs approach to what it is that he did, was rather that he was trying to shift the conversation from thinking about everything in terms of property. I own this, therefore you are excluded from coming onto my land or onto my property, and thinking more about how do we turn property into something of a commons, something that can be shared or used for a wider good that wasn’t just going to be isolated to one particular specific owner. So that would be one way of thinking about art messing with the law. Another would be, say artists who deliberately violate the law or call attention to areas that the law has not yet addressed. In another adjacent project, I talk about Yoko Ono. So we all know Yoko Ono, we — unfairly accused of breaking up the Beatles. But in 1969, she made a film where she had a cinematographer follow an illegal migrant for an entire day and in theory, this migrant, a young woman, was supposed to be paid, I don’t think she ever was. But this cameraman just followed her through the streets of London for about a couple of hours. He never touched her. He never spoke to her, he just followed her. And this is at a time when stalking was yet to be criminalized. But the terror that this young woman registered on her face and through her body language, made very clear how certain everyday acts, acts that perhaps the law at that time would have considered innocuous was something that maybe should be subject to legal scrutiny. In example, I do talk about in the book would be Jay Jaroslav. So, Jay Jaroslav was a conceptual artist, he also worked for the CIA, and he was able to get documents from Boston City Hall and essentially forge entire identities using the certificates of babies who had died at birth. So he used a birth certificate to obtain a driver’s license, used that to obtain a voter’s card, used that to then — I don’t think he actually obtained a passport. But he was able to create these fictional identities at a time when the idea of identity theft had not even, just not even existed in say, either the legal or political realms. And so in this way, it’s not a direct violation or quibble with the law, but it’s a way in which if we think about, say how this book might intervene, and thinking about what it is that law can do, or can be, this is a way in which artists are saying, hey, you know, maybe you should really pay attention to this, maybe that art has some sort of predictive value. I don’t want to go so far and to say that all lawyers should study art works to glean some nuggets of wisdom about how to run their law practices, but…

Steve Schindler: It might help.

Joan Kee: But the tensions between art and law might be something worth thinking about, especially if we want to consider how it is that legal practice can better accommodate for the irrationality of how human beings behave.

Katie Wilson-Milne: I think it’s so interesting to me that you recount this rich history and ongoing practice of engagement between artists, and legal structures in the two, I think, opposing ways we’ve talked about, either using the law and engaging with it, or violating it and rejecting it. I see those as different, but obviously, related in a sense that artists are engaged with the identity and existence of law. As a practitioner, my overwhelming reaction from the legal perspective, not from artistic practice, is that the art world still does not engage with the law. I mean, from collectors to dealers, certainly mostly artists, my, you know, day to day experience is that the problem is not that these players are engaging with the law or critical of it, it’s that they are ignorant of it, or not even ignorant of it just not willing to engage with it at all. And among art lawyers, I think that is a common observation that it’s sort of an extra legal industry. It’s just it’s not professionalized, you know, there are other words you can use in a way that other industries are that have legal systems, contractual systems in place, and the art world is unique and that it really doesn’t for such a high value industry. So I don’t know that your book deals with that at all, but it just was something I was thinking about, as you were painting these rich examples of legal engagement in the world that, you know, in legal practice, it’s often the absence of engagement that we notice.

Joan Kee: Absolutely, and you touched a little bit about that, especially with the first chapter on the Siegelaub agreement. So it was one of the first attempts…

Katie Wilson-Milne: Yeah, please talk about that.

Joan Kee: To try to harness contract law to address or engage with the issues that artists faced on a daily basis. Things like what happens when my work is sold, do I still retain copyright, and of course, the infamous resell provision.

Katie Wilson-Milne: Our listeners may not know the background of any of this.

Joan Kee: So it’s commonly known as the Siegelaub agreement. But what it is, was it was a collaboration between a curator/critic/promoter named Seth Siegelaub very well known for promoting conceptual art and really putting it on the map of the contemporary art landscape in both Europe and North America. And was Robert Projansky, who was a lawyer and also had extensive experience working with artists. And what it was…

Katie Wilson-Milne: Was this in the 70s?

Joan Kee: This was in 1970, and what it was, it was supposed to be a standard issue agreement; it’s not terribly well drafted. For those of you who are contract nerds, it’s — the wording is very clunky. Projansky himself said, I just churned it out in a big rush and it’s most famous for what’s called the resale provision. So meaning that when an artwork is sold to, say, another buyer, and that buyer, then resells the work to someone else, if a profit is made, a cut of that profit would be then returned to the artist. Now, that provoked a widespread outrage, it was considered a tax, it was considered something that, you know, nobody would, no collector would agree to this, and that has largely been true. But what was important about that agreement is not so much that it’s failed to become industry standard, which was Siegelaub’s hope, but rather that it really started to get artists thinking about, well, what are my rights? What are the basic sort of things that I need to function as an artist in this rapidly expanding industry, because the early 1970s, also marked the time at which the art world expanded in terms of say, not only sales, but the kinds of artworks that were sold, the kinds of collectors, the places in which art was sold. So how is it that contract might allow artists to function more readily in these situations? But as you know, Katie and Steven, very few artists use contracts, the ones that I know who do are the ones who need them the least, the ones who already are successful.

Katie Wilson-Milne: Yeah.

Steve Schindler: Sure, right, and that’s true, you know, obviously, that was an attempt to introduce through contract what exists in Europe in terms of artist resale royalties. Some people here have tried to introduce them to the federal legislature for a number of years without any success. And you’re right, this contract really just sort of died. It’s interesting that you mentioned the growth of the art market, because I was reading your book Models of Integrity, kind of alongside a recent book by Michael Shnayerson called Boom, which traces the — it’s really the history of the art market, and particularly mega galleries, from the early 1960s, to the present, and I was struck by this concept of the hunt for integrity, which you sort of so deeply focus on, and what might be called something else that was happening in the art market. I don’t know what the word is, but it’s definitely the influx of money, the increase of status, and that there’s some tension in this notion of the artist, as the force confronting oppressive laws and other examples that you give, and the increasing sort of influx of money and of art becoming much more expensive.

Katie Wilson-Milne: I think what you’re touching upon, Steve, is that artists were complicit in that system, right, because the art world doesn’t take off…

Steve Schindler: Yes, that’s right.

Katie Wilson-Milne: And become, you know, a seven figure per work industry without artists getting on board with that. And so, that world, that commercialization of the art world, is happening at the very same time or maybe there’s an overlap, it may not be developing the same time, one may be dying as one is growing. But, you know, the 60s and 70s are certainly a decade where you’re seeing a lot of experimental, non-commercial art and maybe in a moral and ethical call, to that kind of work way from the gallery, way from the collector at the same time, as the commercial art market is taking off and artists who are recognized and, you know, praised are entering that system willingly. And that’s still attention. I mean we see that now.

Joan Kee: I got so much flack for using the word integrity by certain of my friends, but the way which for me, integrity works, the reason why I use integrity is not necessarily to say that these artists are, say morally superior or even that their artworks are useful. So integrity, for me means three things. One is consistency of purpose. Purpose doesn’t have to be grand or even laudable. It just has to have some sort of continuous purpose that exists despite challenges or setbacks, that’s one. Another is, how is it that you can self-actualize? So the 60s, 70s, and 80s, it’s a time when artists are really grappling with well, what is an artist? Are we the lone romantic genius, are we, say, a blue collar worker, there was a real sort of impetus to align artists with blue collar work, are we say, entrepreneurs, are we say businessmen and business women, what are we? And so integrity for me also signals a time in which artists, were really trying to think about what confers on to ourselves a sense of identity. So going back to another pressure point, which Katie you raised earlier, whether artists should be treated as privileged, or special? Or rather, is that kind of special treatment justified? This is also a question that is one of the fault lines between, say art and law. So on the one hand, the law treats at least until the mid-1970s, art was just like anything else. It was like a pair of shoes. That was one of the quotes that has resonated with me. But on the other hand with moral rights activism that there is also simultaneous pressure to think about, well, artists maybe should have special non-economic rights because of the work that they do.

Katie Wilson-Milne: Unlike a shoemaker or a furniture maker.

Joan Kee: Exactly, now my own take is that I’m very ambivalent about moral rights, in part because if say, an artist wants to intervene or engage with the every day, you kind of have the roll with the punches, that means you’re going to have to subject yourself to standards or say the outside world, you can’t have it both ways. Now, there are other scholars, one of my favorite scholars, Amy Adler, who talks about the market…

Steve Schindler: Who has been a guest on the podcast as well.

Joan Kee: And who has been for me a formative influence in thinking about art and law, one of the reasons being is that she is one of the very few legal scholars to engage directly with contemporary artists, not from the position of a legal scholar giving advice, but thinking about how do I have some sort of sympathy with the artist. And she talks about, say, the market as perhaps a better arbiter for dealing with the issues arising from moral rights questions. I’m not so convinced about the market, either, in part, because I also in my other work deal with artists from countries where the free market doesn’t exist. So places like North Korea, for example, or places like China, where the free market is there, but it’s also very say, fragile or contingent on certain political situation.

Katie Wilson-Milne: Well, and there’s a fraught history of intellectual property protection, which is, you know, yeah, and Amy Adler’s, part of her argument is that copyright, in all of its forms, may not really be necessary anymore. In the art market, the market may do that regulation. So the idea of authenticity or who owns the copyright may not be particularly useful anymore. But as you point out, really interesting, in a place where there aren’t those rights.

Joan Kee: It’s assuming that the market works perfectly, which it doesn’t in most parts of the world. I also wanted to touch upon, Katie, your question about, say, the art world as not functioning along the same lines as the legal realm. And so in the book, one of the tensions that has been very generative for me is the difference between law and norms, so that the art world does have its own set of standards.

Katie Wilson-Milne: Absolutely.

Joan Kee: But they are really what would be called customs, they’re unlegislated. They’re not really written down.

Katie Wilson-Milne: They’re handshakes.

Steve Schindler: Winks.

Joan Kee: They were handshakes, it was kind of informal agreements. There are, say, consequences if you violate certain agreements, because the art world is a relatively small place. So even though New York, just to take one example, it’s a big place, lots of multiple art worlds or art ecologies, rather. Say, if you violate certain agreements, that can also prevent you from operating in your given art world in the way that you want that operation to happen. So it’s not as if, say, you can behave with impunity in the art world, there are certain consequences. It just doesn’t really align with, again, how, say, those of us who practice law would want or would expect artists or collectors or galleries to act. And this is very frustrating, because again, there isn’t much transparency in the art world. Whenever there’s a new book about the art market, you know, you just — there’s a long sigh. One is because most of, say, the literature about the art market, it’s based on auction prices, which are disclosed, but the auctions only represent a tiny, tiny fragment of the entire art market, none of the, say gallery prices, you know, most galleries, they’re not going to say, well, I sold, I flipped this work for double what I paid for and that, in fact, is really sort of the meat of what’s happening in the market. And this lack of transparency, I think this is also something that, you know, art has struggled to deal with, especially if you don’t have the clout of a major backer, if you’re not institutionally recognized, how do you kind of find your way in?

Steve Schindler: Sure, and the lack of transparency, which is something that, you know, we hear, talked about, and we talk about a lot also has a great impact on art as an asset class, art as a thing that is bought and sold, because there are great inefficiencies in a market where you really don’t have access to a lot of information and where access to information is something that is precious and that is in effect, sold, you know, to unwitting customers, sometimes.

Katie Wilson-Milne: I want to talk about another aspect of integrity. So when we, as lawyers, hear integrity, we think about it in a legal sense, in the moral rights sense, which means that you have a right to a certain amount of control over your work, and what happens to your work, and there are limited integrity provisions in the Visual Artists Rights Act in terms of destruction of an artwork, if the artwork is of recognized stature. We’ve done an episode where we go into more detail about that in the past. That effort by artists, I think, to have more control over the non-economic rights in their work, to protect their copyrights, to have a resell royalty are very capitalist instincts, right? They strike me as smart and rational and very much intentioned with a lot of the examples in your book about artists rejecting that system of ownership of property of mine versus yours entirely. And I wonder how you sort of square that, you know, reject or blow up the system with actually, I’m going to fight for all these things, you know, within the realm of that system that reinforce this idea of personal property rights.

Joan Kee: I think that paradox resides in almost every artist I know. So lot of artists like to say that I want to reject this exclusion paradigm on which the idea of private property is based. But on the other when it comes to what might happen to their work, you know, artists are very quick to think about what are sort of the tools at my disposal. I’ve noticed an decided uptick in artists who are very aware of their copyright to the point, just to give an example that encumbers all scholars. So for example, fair use — fair use is something that legally would allow scholars to use images without having to necessarily seek permission. Now, to my understanding, I don’t know of any art historian who’s actually trying to put that to the legal test. I don’t know of a trial in which an art historian was sued by an artist on the grounds that he or she misused an image of theirs. But I’ve noticed that if you ask an artist for permission to use their image, images of their work, what has increasingly happened is that they ask for a copy of the text, and they want to approve that text before they release permission, I understand where that’s coming from, the desire to protect how their work is going to be presented and circulated, but say for scholars, to me, it also can come across as a form of hostage taking that…

Steve Schindler: I mean, that flies right in the face of the concept of fair use, where works are supposed to be subject to criticism and to discussion.

Joan Kee: And this is, you know, something that is a real challenge for anyone who uses visual imagery in their scholarship and especially so for those of us who are art historians, or curators, and for whom, if we don’t have images accompanying our text, the text diminishes in its impact. And so this is also a question that has become much more prominent in say, I’d say that last 5 to 10 years as artists become more aware of their rights. And I’m also struck by the knowledge base of artists for whom the law is really about copyright or resale provision or something to do with the idea of property rather than the vast panoply of other laws, that I think were much more visible or legible to artists in the 60s or 70s.

Katie Wilson-Milne: And that those types of law would be, what more liability issues or?

Joan Kee: Liability issues.

Katie Wilson-Milne: Restrictions on movement or offense or?

Joan Kee: Trespass, to what extent can you say perform a certain action without becoming criminally liable? How do you deal with say negotiation? This is also something that, for me has been very interesting in thinking about how do artists negotiate in ways that are different or parallel or perhaps alternative to the styles of negotiation that lawyers do. This is something that figures quite prominently in my chapter on Christo and Jeanne-Claude, who were actually awarded Harvard Law School’s negotiation prize. This happened a few years ago.

Katie Wilson-Milne: Can you talk about their project? Just…

Joan Kee: Yes, so Christo and Jeanne-Claude, many listeners will be familiar with The Gates project that they did in Central Park some time ago, but their first kind of large scale project in the United States took place in 1976, in Northern California. So it’s about 90 minutes north of San Francisco. It’s a very rural location and their ambition was to have a temporary project that involved basically large curtain-like swaths of white fabric. This was fabric that they had sourced from unused airbags from a car factory. And so they had to ask permission, not only from say, county, or city or other municipal authorities, but also the individual farmers that owned parts of the land that they had wanted to use and that proved to be one of the most challenging, in part because again, 1976, this is still during the Cold War. Christo, thick Bulgarian accent, guy who sounds like a communist coming into northern California asking, say, a farmer, can I use your land and thinking who is this person. And so Jeanne-Claude actually played an instrumental role, because she’s French, by all accounts, amazingly charming. Not to say that being French and charming are necessarily correlated, but in her case…

Katie Wilson-Milne: It is.

Joan Kee: And she just charmed the socks off of the ranchers, who became very invested in this project. And so this is a very good example, again, of how when we think about the law, we also want to think about, say, practices of negotiation. Because this project was, like many of Christo and Jeanne-Claude’s other projects, was enabled by a Chicago lawyer named Scott Hodes. Scott Hodes is also the son of a Chicago politician. So in terms of thinking about who one should get to know in order to make a project happen, this is also where lawyers play a really instrumental role. Christo and Jeanne-Claude had also asked local lawyers in that area of Northern California that they had wanted to use because again, if you are a county lawyer in the particular neighborhood, you have accumulated relationships with the residents there and that proved invaluable in realizing this project that everyone said would be impossible. Now, one other thing I just wanted to point out about Running Fence is that it’s indicated as both the work of Christo and Jeanne-Claude. In 1994, Christo said, “I want all my works to be co-credited to my wife.” And this is also something that for me has been a point that perhaps requires further elaboration is that what about the uncredited labor of say, family members, especially wives or children, when we think about collaboration, so collaboration, is a strategy in artistic practice involving more than one person, is that often one person will get the lion’s share of the credit. And so this, going back to this question of, say intellectual property, how do we say distribute or redistribute the credit in such a way that others become legible or recognized? And when I say others, it usually refers to women, people of color, queers, people who are disabled, people who perhaps have been disenfranchised by a system that is very much premised on again, entitlement, and you mentioned Cameron Rowland. Cameron Rowland, I know is very influenced by Cheryl Harris, a UCLA Law Professor who wrote an article called Whiteness as Property. So this is also a book where I’m hoping that we can rethink, say, the history not only of art, but also how is it that law really compels us to think differently about who is actually included in this particular story?

Katie Wilson-Milne: I think that’s still the case. It amazes me, how many collaborative projects, you know, I guess, to back up — copyright, legal structures, become an issue only in most cases when there’s a dispute, right? So someone has to be upset, they have to feel wronged, and they have to bring it to attention. If that does not occur, then no amount of copyright infringement or contract breach matters, right? Because it’s not going to be enforced and I think you see that in the art world, so much on collaborative projects. I mean, I was in Venice, I saw some works of photography; I believe, that the artist said were taken by somebody else and I was the only lawyer in this group. And I was like, “how can this be?” You didn’t even take these photographs, and your name is the only name that appears on this work. And of course, you’re the author of the concept, the inspiration that may be completely right, but legally, it is messy to have someone else creating your work and that happens all the time, without a lot of interrogation about rights, until someone else claims rights.

Steve Schindler: That seems like the ultimate act of appropriation, and you talk about…

Katie Wilson-Milne: Well that’s willing, so I don’t I don’t really…

Steve Schindler: Well, but it’s complete, you know, it’s not — there’s no pretense of any kind of transformation.

Katie Wilson-Milne: No, but the concept and the idea come from the artist whose name is on the work. So I think it’s a little…

Steve Schindler: Right, but as we know, that’s not really copyrightable. It’s just an interesting way to sort of also look at — you talk. Joan, in your book about appropriation art a little bit, using Rogers v. Koons, the famous puppy case and others in again, this idea of artists, and we talked about artists who are interrogating the law or looking to the law for protection in terms of their own copyright. But there are also many examples of artists who are challenging notions of copyright and then ending up in court, Richard Prince and Jeff Koons, historically.

Joan Kee: So, I think both, Steven and Katie, you’re bringing up two important points. So one is a big issue that — or an issue that I think is just going to get more intense, is the debate between what is legally permissible and what is morally viable or ethically viable. A good example might be this year in Art Basel was the LA artist Andrea Bowers, so she had a large work that involved bringing in stories that she had found on Twitter about various incidents of domestic and sexual abuse. And one of the Twitter account holders whose images and stories that Bowers had taken had actually filed a lawsuit saying that she had taken — Bowers had taken her story without her consent. Now, I am not an expert on Twitter, but as I understand it, if you post something on Twitter, you are voluntarily making that information available. So I’m not quite sure if when you post on Twitter, whatever you post becomes public domain. But there is something akin to that effect. However, the pushback that Bowers received after this work was displayed, and I think that pushback was also fueled in part by the fact it was a very expensive work on sale at a very expensive art fair, is that it really forces issue of okay, something could be legally permissible. It could have been legal for Bowers to bring these stories, but was it ethical? Was it morally viable? This is a question I think, will become more heated, in part because as you mentioned, Katie, that the art world functions on norms. And again, these norms might also be influenced by what people regard as ethical or unethical at a given time. One question, again, to also, I think, think about with regard to what is ethically viable, is that consensus in the art world is difficult to predict and it’s difficult to change. And once those sort of norms or approaches are kind of set in place, it becomes really difficult to dislodge, say, certain assumptions that people have in terms of particular works. A good example might be, say, the Dana Schutz painting. I mean, for eternity, that painting is just going to be considered for the controversy that it provoked. It will not be written about in any other way. I highly highly doubt it.

Katie Wilson-Milne: This was the — we’ve mentioned this several times on the podcast, but this was her painting, Open Casket at the Whitney Biennial, the last Whitney Biennial that was, you know, sort of a cartoonish representation of the photograph of Emmett Till and his casket that his mother had asked be made widely, publicly available and was criticized, there were calls for its destruction, and its removal, because of the identity of the artist not the work, and because she was white.

Joan Kee: Yes, that’s correct.

Katie Wilson- Milne: As we pointed out, before visitors to the Biennial will have noticed that it was full of other representations of violence against people of color. But I think we’re continuing to see controversies about what art, you know, should be up? Then is offense a good enough reason to take something down or remove it? And you talk about that in your book from the vantage point, you know, of the 60s, 70s, 80s, you know, namely Robert Mapplethorpe, who was involved in all kinds of controversies with both the NEA and lawsuits about obscenity because of his highly pornographic images, mainly of men sexual positions. And, you know, the art world seemed to be unanimously aligned in defending that work, even though it was deeply offensive to many viewers, especially in outside of New York, that kind of censorship because people were offended, no matter how deeply was completely inappropriate. Do you see a shift? I mean, has there been a norm shift in terms of thinking about the content of art and ethics? And is there a difference between the 60s, 70s, 80s conception of those controversies and what we see today?

Joan Kee: I think yes and no. So on the one hand, the basic logic of regarding something as obscene; therefore, it should not be made visible. I think that still is very much in play, a recent instance might be — so in Japan. This is an incident that literally happened just weeks ago. So there was the Aichi Triennale, so large scale exhibition, and an artist had exhibited a work that depicted Korean comfort women, so Korean women that were impressed into sexual slavery at the behest of the Japanese Imperial government during World War II. Now, the organizers decided to pull that work on the basis that it had created all kinds of controversy, apparently death threats were made. But the immediacy of that kind of response without say, considering what other factors are actually involved, I think this is something that is becoming an increasing issue that curators and say artists, and increasingly lawyers deal with, but on the other hand, in terms of whether say, the cultural landscape is more expansive, or open minded, I’m not so convinced of this, mainly because I had a personal incident in which my book had to be published in Thailand, not China. Because the Chinese press that normally publishes University of California Press books, refused to publish the images of Mapplethorpe and Sally Mann that I had. That was one and then the other incident was that the General Counsel of my own university at the University of Michigan, advised me to not include any photographs of Sally Mann’s work in my book, on the grounds that I might be actually put on the sex offenders registry list in Great Britain. Even until say, maybe 10 years ago, that public exhibitions of Sally Mann’s work often brought up the scrutiny from Scotland Yard on grounds of obscenity.

Katie Wilson-Milne: But in the United States, let’s say because I think it’s all always good to zoom out, because you’re totally right that in other countries, that dynamic has not shifted, it is not the same. But if we’re sticking to the United States and we’re comparing the sort of sense of expansiveness and risk taking and, you know, openness to edginess, and I guess disregard for who’s offended, at some point in the cultural production in the 60s, 70s, and 80s to today, I’m just wondering if you see a shift and I’d also like, you know, in terms of the trends of your book, both the engagement with law, I think, in terms of maybe the more hostile engagements breaking the law, being more contrary, as you noted, that seems to have shifted into more of an engagement with the law, I think in a much more sophisticated way today, but certainly in a less, maybe radical way than before. So if you could sort of talk about that time trajectory.

Joan Kee: So, my book really ends in the mid-1990s and one of the main reasons for this is because the scale of the market is such that it now accommodates many, many different kinds of art worlds. So the time period that I’m talking about, this is a time period when artists all sort of knew each other. Now you don’t have that situation necessarily, you have all this sort of stratification, so that works that are deemed obscene in some contexts will be perfectly acceptable in others. So I don’t think you will ever see the kind of say, controversy or scale of controversy that erupted when Mapplethorpe’s works were proposed to be shown in Washington D.C., I don’t think that intensity of disagreement will necessarily be as say prolonged or as amplified, one, because they’re just so many art worlds now. Most of the things I talk about in the book, you really can’t even do now. So Suzanne Lacy, just to go back to an example, she said, “Three Weeks in May, Body Contract, I could never do those works today,” in part because again, that the idea of risk management about avoiding blame, about making sure that you align or confirm within say, certain kinds of institutional policies, the structures are in place where you couldn’t, say, go and carve a giant hole into the pier of the New York waterfront. That’s just not going to happen.

Steve Schindler: It wouldn’t be tolerated, just like Ann Messner’s piece, stealing, I thought was really interesting that you focused on that, and I don’t know whether you could get away with that now.

Joan Kee: What’s interesting about, say, Ann Messner’s work — so this is a work in which she basically put one T-shirt over another, like at a H&M type of store, sort of this kind of like a really low end Macy’s in Germany. And nobody did anything, even though there were surveillance cameras all over the place and so in some ways…

Katie Wilson-Milne: And she walked out with it on.

Joan Kee: And she walked out with it.

Steve Schindler: That’s — I don’t think that would happen now.

Joan Kee: That could never happen now, in part because again, surveillance has become more intense. This is also, I think, a good segue to talk about some of the differences between, say art of the recent past versus art now is that surveillance has become such a major subject in temporary art constantly being watched that the paradigm of privacy has shifted from again, it used to be privacy was about excluding others from where you live, your home was your castle. Now it’s about controlling access to the self. And so now you get lots and lots of works that touch directly upon this idea, how is yourself portrayed, or if you feel that your self was portrayed in a negative or unflattering light, then you go out and sue the artist to create that presentation. I think that is a market break between, say, art that was made before, say the mid-1990s, the early 2000s, versus now.

Katie Wilson-Milne: That’s an interesting point I hadn’t thought about, that one of the differences in the more let’s say radical iconoclastic performance art world of the 60s, 70s, 80s is that, let’s say you’re shooting your friend as an art project and he said, “It’s fine, go ahead and shoot me.” That is probably crazy to most people to hear of it, but it’s not on social media, right? I mean, the only people who know about something like that or know about an artwork that’s intentionally explicitly breaking the law are the people who are told about it and see it, right. It’s not immediately on social media all over the world. So the kind of risk and scale of doing something like that is so much bigger now because your audience is immediately huge.

Joan Kee: The speed at which say, information is circulated, also becomes its own form of surveillance, you have say artists who have exhibitions that have a very strict guest list. And this is something I’ve noticed in say places like China, obviously, because of government censorship, and what have you, but the risk and payoff of being say, immediately visible. So lots of artists have Instagram accounts, they you know, propagate information about their work that way, but it also makes you more vulnerable in a way that just did not exist in a pre-internet age.

Katie Wilson-Milne: You talk in the book about a rise in the 60s and 70s of a regulation state. There are changes in the legal landscape, that mostly in terms of risk management and liability, that draw artists into interrogating the law. Now those things are all still true. But there’s been a real shift in how artists are engaging with those issues in terms of taking risk. Is part of that not only that some things are just not possible anymore, or our surveillance state and social media make it less appealing, but that the art market that exists today is rewarding a very different type of production and political engagement than was true before? Not to mention that an artist can’t live in New York, you know, by making that kind of work in a way that maybe they could in the 70s. I mean, are there other external factors that are changing artist’s incentives in terms of how they’re engaging with these issues?

Joan Kee: I’d probably answer yes and no to that. So the means of livelihood have become, say narrower to a certain degree. So for example, it was and it is still relatively common to see artists who have their day jobs teaching, for example. But teaching itself has become more precarious as universities downsize, say instead of a full-time tenure track position, you cobble together multiple adjunct jobs to make a living. And so the security that allows you to create work becomes that much more compromised, so that you become more reliant on the market. But on the other hand, it’s still true that very few artists can make a living purely by selling his or her work. It’s a very, very small percentage, in terms of the market say rewarding certain kinds of work, I think that’s true. It’s one of the reasons why we have tons and tons of abstraction that all looks the same that are all made by people in their 70s or 80s. I’m complicit in this market, my first book dealt with a body of abstraction and it became a market phenomenon, which I did not cash out on, unfortunately. But on the other, we also have, say, again, multiple art worlds. So I live in Detroit, where there really isn’t an art market. So there are a lot of well-off collectors in southeastern Michigan, but they all do their buying in New York or Basel or Frieze or what have you. They don’t buy from Detroit galleries, but that hasn’t stopped Detroit artists from again, creating street art that might get them arrested, or say putting on projects that have no say commercial value. So I think we do live in an era where these multiple art worlds can absorb some of some risk taking. But on the other, if you say show in a museum, just to bring up another example in my book, so in 1969 Christo decides to wrap the outside of the Museum of Contemporary Art Chicago. To my knowledge, he didn’t have to sign a whole bunch of waivers or forms. It was pretty freewheeling that the director said, “Sure, you know, maybe the fire department might say something, but you know, have a ago.” Now, if you had an artist attempt even a project a fraction of that scale, you would have to have, say, an army of lawyers, negotiations, insurance like you wouldn’t believe. If you show it an institution, the kind of regulation that artists would be subject to is — the scale is just much greater than what anyone could have conceived in say 1980 or…

Katie Wilson-Milne: But on the other hand, there are artists today, like there is an artist Mary Mattingly, who’s done this amazing project where she creates these like self-sustaining food systems that float around the East River, Dred Scott, who’s staging an re-enactment of an armed slave rebellion in Louisiana, I actually find that work, in some ways, much more sophisticated and interesting because those artists are figuring out how to deal with all the stakeholders rather than just ignoring the stakeholders and burning a part of a building or, you know, there’s something unthoughtful and kind of easy about just destroying someone else’s property because you can and that’s the whole point or taking something because you can versus building a, you know, a multi-year project where you’re engaging with all kinds of government entities and individual property owners, and then you actually bring it to fruition. I mean, its mind boggling that either those artists can get their projects off the ground and they do, they don’t have teams of lawyers who are helping them, they’re just meeting all the stakeholders, and now one step at a time getting the permissions they need. I mean, I can see that some people might say that approach is much less radical and kind of buying into a system where you need to cooperate, but it’s, in some ways, so much more sophisticated.

Joan Kee: I would agree with you to the extent that to just destroy property and just called that the artwork, it’s just, you know, that is not enough. That’s just — it’s a gesture at best, right. But I think when you say stakeholders, I think the stakeholders were quite different, say, in particular times versus the present. So for example, with someone like Matta-Clark, who was cutting into the pier, you know, he did so at great personal risk to himself. Now, with lots of say, artists who fall into the rubric of social practice, so meaning artworks that involve, say, communities, or say, have some sort of engagement with society, there already has been many precedents in place, so that if you were an example, from my own locality, Pope.L did a project that commented on the Flint Water Crisis, which involved working with communities in both Flint and Detroit. There was already a precedent for community-based artworks. So it wasn’t say inventing or reinventing the wheel from scratch, as opposed to someone like Christo and Jeanne-Claude for which there was no precedent.

Katie Wilson-Milne: Right.

Steve Schindler: Right.

Joan Kee: And so I think the context is just different. So I agree with you in the sense that simply destroying something or urinating in public or violating the law itself, that is not enough to justify a work’s existence, or at least it’s not enough to make the word compelling, but at the same time, every work has certain kinds of context specific facts actors that again, was there a precedent or a certain historical legacy already in place that would create a space for you know, works for artists like Dred Scott to work in the way that he does? An example would be someone like Theaster Gates, also probably one of the best known in being able to orchestrate different demographics to get — to realize what it is that he wants to do and that itself was again based on the Row Houses Project in Houston in the early 1990s. So this is also one of the reasons I wrote this book is to really emphasize the historicity of these practices that they all come from these particular lineages and that, you know, no artwork just emerges on its own.

Katie Wilson-Milne: Do you see today and going forward more or less engagement with the law in artistic practice?

Joan Kee: Oh, definitely more. I mean, it’s, I would even go so far as to say that contemporary art is fundamentally shaped by law, that you cannot really be a professional artist was having some big basic knowledge of, say, how laws function and it’s not just, say, intellectual property or, say, constitutional law, but anything from labor from tax, for example. So in my vain attempt to keep up my law license, I had to take all these CLE credits, but my favorite one was a class in protest lawyering. So how do you find or identify tactics of negotiating with police to keep your client from being arrested? But these are ideas that also artists, I find, have been gravitating towards when they make work that has some kind of message of political dissent.

Katie Wilson-Milne: Well, thank you so much for talking to us.

Steve Schindler: Thank you, Joan.

Joan Kee: Thanks to both of you for having me today.

Katie Wilson-Milne: And we will obviously post a link to your book in our show notes where people can find it and find out more about you and your work.

Joan Kee: Thank you very much.

Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at and if you like what you hear give us a five 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: 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.