Who
owns
commissioned
artwork?
­
The
artistic,
legal
and
ethical
 implications
of
the
commissioning
process
 London
Chelsea
College
of
Art
and
Design,
30.
März
 Elke
Bippus
 
 Thank
you
for
the
invitation
and
the
kind
introduction.

 
 I
want
to
relate
the
question
of
the
host
with
general
questions
of
ownership
and
 how
to
think
about
an
artwork.
To
that
effect
I
would
like
to
juxtapose
three
 positions
in
the
following
presentation:
 First:
 –
The
Artist's
Reserved
Rights
Transfer
and
Sale
Agreement
by
Seth
Siegelaub,
 published
in
1971;
 Second:
 –
The
problematization
of
the
»author«
through
the
revaluation
of
the
viewer
and
 through
the
process‐based
and
ephemeral
work
of
art
within
and
after
Conceptual
 Art.
 –
And
finally,
I
will
offer
for
discussion
the
concept
of
copyright
in
terms
of
 intellectual
property,
as
it
is
currently
discussed
in
the
fields
of
literature,
art,
 science,
design,
or
in
digital
media.
 
 On
one
hand
I
would
like
to
introduce
a
historical
perspective
to
the
current
 discourse
about
copyright
and
intellectual
property
and
on
the
other
hand
I
want
to
 maintain
that
the
question
of
ownership
is
not
just
about
a
product
but
about
a
field
 of
ideological,
theoretical
and
political
issues.
 
 


1


1.
The
Artist's
Contract
in
the
context
of
Conceptual
Art
(Abb.
1)
 According
to
Seth
Siegelaub
The
Artist's
Reserved
Rights
Transfer
and
Sale
Agreement
 was
a
response
to
inequalities
in
the
art
world,
particularly
to
the
fact
that
artists
 had
no
control
over
the
use
of
their
work
and,
after
they
had
sold
their
artwork,
 could
no
longer
profit
from
the
potential
increase
in
value
of
their
work.
Seth
 Siegelaub,
dealer,
curator
and
author,
significantly
(co‐)determined
Conceptual
Art.
 He
developed
for
example,
a
format
of
exhibitions
which
transported
the
ideas
and
 concerns
of
Conceptual
Art.

 In
1968
he
ran
a
gallery
without
actually
having
a
space
available.
He
presented
the
 artwork
»at«
his
gallery
based
on
a
catalog.
The
book
itself
became
the
actual
 exhibition
site.
 Perhaps
the
best
known
publication
in
this
context
is
the
Xerox
Book
of
1968.1
This
 publication
contains
six
sections
with
twenty‐five
pages
each,
designed
by
Carl
 Andre,
Robert
Barry,
Douglas
Huebler,
Joseph
Kosuth,
Sol
LeWitt,
Robert
Morris
and
 Lawrence
Weiner.

 In
this
project,
Siegelaub
demonstrated
that
art
is
not
attached
to
a
physical
object,
,
 to
individual
handwriting
or
to
manual
skills,
but
was
be
understood
as
a
field
of
 negotiation.
Conceptual
Art
promoted
an
action‐and
process‐driven
practice
that
 operated
on
the
connecting
line
between
art,
life
and
politics.
Aiming
towards
a
 democratization
of
art,
Conceptual
Art
included
the
viewer
as
a
constituent
factor
in
 the
production
of
the
artwork.
 Accordingly,
representatives
of
Conceptual
Art
used
the
production
and
distribution
 of
artists'
books,
collaborated
with
art
magazines
or
used,
amongst
other
things,
 billboards,
to
make
their
(artistic)
ideas
public.
The
established
forms
of
 distribution
of
art
producers
and
intermediaries
had
been
blurred.
Therefore
 Siegelaub
reversed
the
valid
reception
of
art
until
that
point:
he
did
not
 communicate
art
through
the
perception
and
experience
of
the
physical
art‐object





2


but
through
its
reproduction
and
distribution,
while
artists
assumed
the
role
of
the
 critic,
curator
and
theorist.

 Within
these
modified
practices
the
representative
and
institutional
frameworks
 became
clear
but
also
the
legal
and
industrial
implications
of
art
production.
 
 1b.
The
Contract
 Seth
Siegelaub
wrote
the
contract
with
Bob
Projansky,
a
New
York
lawyer,
acting
on
 ideas
made
by
Sol
LeWitt
during
a
symposium
held
by
the
Art
Workers
Coalition
at
 the
School
of
Visual
Arts
in
New
York
in
April
1969.
LeWitt’s
central
claim
was:
»A
 work
of
art
by
a
living
artist
would
still
be
the
property
of
the
artist.«


 The
contract
sought
to
regulate
the
following
points:
 The
artist
should
get
 –

15%
of
any
increase
in
the
value
of
each
work
each
time
it
is
transferred
in
 the
future.


–

A
record
of
who
owns
each
work
at
any
given
time


–

The
right
to
be
notified
when
the
work
is
to
be
exhibited,
so
the
artist
can
 advise
upon
or
veto
the
proposed
exhibition
of
his/her
work


–

The
right
to
borrow
the
work
for
exhibition
for
2
month
every
five
years.


–

All
reproduction
rights
in
the
work.


[In
return
the
collector
has
the
advantage
to
obtain
a
certificate
on
the
history
and
 origin
of
the
artwork.
He
is
also
aware
that
the
artist
keeps
her/his
intellectual
 relationship
to
the
artwork,
even
if
the
owner
has
it.
And
the
contract
gives
him
the
 assurance
that
he
will
use
the
artwork
in
accordance
with
the
artist.]
 Most
debates
around
the
Contract
focus
primarily
on
the
15%
clause.

 In
contrast,
Maria
Eichhorn,
who
in
1996
intensively
researched
the
contract,
and
 who
just
four
weeks
ago
published
an
extensive
book
about
her
research,
is
much
 more
concerned
with
the
artist’s
impact
and
influence
on
his
work,
after
it
is
sold.





3


Further
she
investigates
the
questions
that
arise
when
a
work
of
art
is
not
physically
 determined.

 One
of
the
remarkable
things
for
Maria
Eichhorn
about
Siegelaub’s
contract
is
»the
 disregard
for
the
uniqueness
of
the
artwork,
a
factor
usually
playing
a
central
role
in
 the
art
market:
an
implicit
critique
of
the
bourgeois
definition
of
a
work
of
art.«2
 (she
wrote).
Under
perspective
of
»Common
law
»the
artist’s
contract
protects
art
 primarily
as
an
object
or
an
item
of
property«3,
in
the
context
of
the
civil
rights
 movement,
increasing
political
awareness,
[…]
the
Agreement
calls
[furthermore]
 for
artists
to
have
a
say.4
For
Maria
Eichhorn
the
»Agreement
(I
quote)
is
an
obstacle
 to
sales.
Contracts
of
this
sort
transform
even
the
most
marketable
work
into
an
 unwieldy
good.
They
resist
an
elementary
capitalist
principle
of
the
art
market
by
 making
it
impossible
to
sell
an
artwork
except
under
certain
conditions.
The
 Agreement
can
function
as
a
political
instrument,
but
only
if
it
is
used
strictly
and
 with
a
corresponding
artistic
stance.
Collectors/buyers
will
only
buy
into
such
 contracts
if
they
can
profit
from
the
critical
image
of
the
artist
and
his
or
her
work,
 which
in
turn
shows
that
critique
can
become
a
commodity.
By
addressing
the
 commodification
of
critical
works
of
art
contracts
like
the
Agreement
shed
light
on
 the
mechanisms
and
methods
of
advanced
capitalism.«5
(unquote)
 The
Artist’s
Contract
reacts
to
the
changed
status
of
a
work
of
art.
These
changes
 were
imposed
through
the
serial
production
of
Minimal
Art
and
within
the
material
 aspects
of
producing
»worthless«
works
of
art
within
Conceptual
Art.
 To
speak
in
terms
of
Walter
Benjamin
the
artistic
practices
of
the
60s
and
70s
have
 drastically
changed
the
focus
on
the
art‐object
by
creating
a
work
of
art
based
on
 reproduction.
Therefore
they
also
created
new
values
for
the
work
of
art.
These
 (new)
values
demand
that
copyright
is
not
only
discussed
in
terms
of
material
 ownership
but
in
relation
to
intellectual
property.
 
 
 


4


2.
Anna
Oppermann’s
»Ensembles«

 I
would
like
to
position
my
thoughts
about
Anna
Oppermann
within
this
context.
 Her
so‐called
»Ensembles«
address
themselves
to
an
emancipated
viewer
and
 reflect
the
performativity
of
media,
space
and
staging.
 (Abb.
2)
Anna
Oppermann’s
ensembles
overstrain
the
beholder.
»They
are
crowded
 full
of
information,
full
of
objects,
drawings,
photographs,
texts
and
images
[…]
 spread
all
over
the
exhibition
space.«
Her
work
turns
everything
we
know
about
 documentation,
preservation
and
representation
upside
down
and
makes
it
 impossible
to
reinstall
the
work
without
a
change.
Anna
Oppermann
died
long
 before
discussions
like
»inside
installations«
started
in
1993.
She
left
no
 instructions.
In
this
respect
U.V.,
who
wrote
her
Ph.D.
about
»Ensembles«
and
has
 shown
Anna
Oppermann’s
work
many
times,
talks
about
a
shift.
 Concepts
of
objectivity,
truth
and
authenticity
are
less
important
than
ideas
of
 interpretation,
interactivity
and
an
ongoing
process.
When
Anna
Oppermann
says
 that
she
could
not
decide
»what
was
more
important
or
more
true
to
the
artistic
 statement:
the
real
object,
the
sketch,
the
intellectual
argument
or
the
completed
 picture.
Each
part
had
something
that
the
other
would
lack«6
(she
said),
she
reflects
 the
complex
interplay
of
all
the
different
aspects
that
altogether
determine
the
 meaning
of
a
work
of
art.
 The
Ensembles
are
the
visible
process
of
an
ongoing
mediation.
An
»Ensemble«
is
 just
the
opposite
of
a
finite,
complete
and
original
art
work
in
so
far
I
understand
 them
as
an
(physical)
example,
confronting
us
with
questions
about
intellectual
 property
and
how
this
is
discussed
regarding
digital
media
today.

 The
viewer
becomes
an
actor.
The
explosive
and
open
form
involves
him
and
 moreover,
the
translation
between
different
media,
different
codes
and
 representation
systems
stipulate
an
intellectual
adoption.
Perception
itself
becomes
 a
creative
act.

 The
singular
elements
which
are
part
of
the
»ensembles«
have
little
or
no
value.
 


5


They
are
dependent
upon
a
mutual
interaction
within
the
installation
and
upon
a
 dialogical
encounter.
Oppermann’s
method
which
is
based
on
reproduction
 devaluates
the
singular
object
or
in
other
words
the
object
gains
a
functional
value
 within
a
symbolic
process.
 (Abb.
3)
The
artist
used
objects
as
the
material
of
a
working
process,
which
could
 last
over
ten
to
twenty
years.
 An
artwork
–
like
Anna
Oppermanns
»Ensembles«
–
which
is
meant
to
be
a
dialogue,
 which
positions
the
viewer
as
a
collaborator
who
generates
meaning
and
 understanding,
can
only
unfold
its
significance
if
it
is
public.
Museums
more
or
less
 guarantee
that
works
of
art
are
accessible
to
the
public.7
But
what
happens
if
the
 work
becomes
privately
owned?
In
response
to
this
question
Siegelaub’s
demand
 that
an
artist
has
unreserved
access
to
their
work
of
art
for
use
in
exhibitions,
is
 consequent.
The
free
accessibility
is
necessary
to
keep
the
discourse
about
the
work
 alive.
The
reproduction
of
works
of
art
is
in
this
context
only
partially
a
solution.
 It
is
necessary
to
exhibit
them
‐‐if
it
is
not
only
supposed
to
be
about
speaking
about
 the
works
of
art
but
also
about
the
reflection
on
and
effectivity
of
their
medial
 performance.

 Anna
Oppermann’s
estate
is
not
only
the
artistic
material
she
left,
but
the
request
 for
handling
it,
dealing
with
it.
The
main
task
of
preservation
is
to
keep
and
to
pass
 on
the
open
form
visible
to
the
viewer.
Ute
Vorkoeper
speaks
not
only
from
a
 rethinking
of
the
work,
but
also
of
a
re‐inventing
and
re‐processing
of
it:8
I
quote
UV
 »A
work
that
is
based
on
the
dialectics
of
progression
and
preservation
/
change
and
 repetition
and
that
is
consequently
dialogical
will
always
ask
for
an
ongoing
 dialogue.
Basically
it
is
this
request
for
continuation
that
is
to
keep.
This
demand
 asks
for
the
curator’s
openness
to
communicate
with
the
artwork
and
–
even
more
–
 it
asks
him/her
to
make
aesthetic
decisions
–
instead
of
repeating
a
given
form.«
 (unquote)
This
does
not
mean
to
deal
with
left
artistic
material
without
respect.
 Estates
of
such
a
kind
non‐finite
work
need
a
combination
of
careful
storage
of
the
 material
and
keeping
alive
the
idea,
the
concept
or
the
process.9

 


6



 3.
Copyright
or
Open
Source?
 So
far
the
art
market
seems
to
resist
the
devaluation
of
physical
media,
which
is
 common
for
knowledge
society,
successfully.
I
would
like
to
provocatively
propose
 the
thesis
that
the
art
system
bars
the
discursive
qualities
of
art
through
the
 perpetuation
of
the
object
character.
Consider
that
knowledge
production
gains
 more
and
more
meaning
and
increasingly
makes
up
a
large
part
of
value
creation,
 compared
to
the
production
of
material
goods.10
My
question
is:
does
art
become
 less
important
and
in
this
respect
lose
any
kind
of
social
relevance?
Art
is
affixed
to
 the
status
quo
of
traditional
models
and
accordingly
addresses
the
bourgeoisie.
 Departing
from
this
train
of
thought
I
would
like
to
refer
to
new
models
of
 production
and
the
use
of
digitial
commodities
and
the
question
about
copyright.
It
 remains
open
if
this
discourse
can
be
applied
to
the
art
system.

 Debates
about
the
copyright
in
the
digital
field
open
a
perspective
on
the
 »democratization
of
art«
through
serial
and
process‐based
works
in
the
60s.
They
 show
that
the
explosiveness
of
the
democratization
of
art
does
not
depend
on
 everyone
acquiring
a
work
of
art,
but
on
the
possibility
to
democratize
knowledge
 production
and
the
access
to
knowledge.

 But
first
of
all
about
the
copyright
in
the
digital
field:
New
approaches
aim
towards
 an
easier
access
to
works,
allowing
the
free
reproduction,
multiplication
or
free
 xeroxing,
in
comparison
to
the
conventional
application
of
copyright,
which
grants
 the
author
of
intellectual
works
exclusive
property
rights.
This
is
supposed
to
 increase
the
possibility
to
deal
with
works
creatively.
 Today
the
handling
is
extremely
restricted.
If
you
buy
a
book
for
example,
you
may
 read
it,
lend
it
out
and
resell
it.
But
one
must
not
photocopy
it
as
a
whole,
read
it
out
 loud
in
public,
make
a
film
of
it
or
change
it.
Collecting
societies
distribute
and
 control
these
rights
separately.





7


Alternative
concepts
of
the
copyright
that
developed
over
the
past
few
years
are
 mainly
concerned
with
guaranteeing
free
and
unhindered
access
to
works
and
to
 explicitly
encourage
their
distribution.
Open
models
of
production
assumes
that
 new
works
emerge
from
the
process
and
the
change
of
works,
that
already
exist.
 Here
I
see
the
connection
to
Anna
Oppermann’s
approach
and
her
»Ensembles«.
Not
 the
material
work,
but
the
reproduction,
the
interplay,
the
open
conversation,
the
 discourse,
the
process
are
the
center
and
pivotal
point
of
her
artistic
praxis.
 
 3b.
Copyright
and
knowledge
production.
 In
conclusion,
I
want
to
sharpen
the
question
about
copyright
within
the
society
of
 knowledge.
Science
is
based
on
the
principle
that
the
use
of
immaterial
commodities
 leads
to
their
augmentation.
Accordingly
science
relies
upon
citation
and
 publication.
Intellectual
production
is
understood
as
a
cooperative
and
 transformative
process.
Traditional
application
of
the
copyright,
which
must
 authorize
nearly
any
use
obligation,
stands
in
contradiction
to
(this)
perception
of
a
 creative
process.
Alternative
models
tie
in
with
the
sovereign
right
of
the
author.
 They
develop
and
issue
a
license
with
which
an
author
may
allow
the
free
usage
of
 her
or
his
work.11
A
central
project
in
this
development
is
»Creative
Commons«.12
 The
same
approaches
und
experiences
which
are
discussed
for
new
digital
licensing
 models
should
be
discussed
for
art
production
as
well.
How
would
this
licensing
 applied
to
art
production
in
this
respect
function
within
information
society?
I
think,
 that
the
question
the
host
of
this
event
asked:
Who
owns
commissioned
artwork?
is
 not
only
a
question
regarding
material
ownership.
The
question
politically
 intensifies
if
the
discourse
is
linked
to
appropriation
and
to
access
to
the
production
 of
knowledge.
If
you
rethink
Art
as
a
social
mode
of
knowledge
production,
the
 question
of
ownership
can’t
be
only
one
about
property.
The
possession
of
an
object
 excludes
art
once
more
from
the
circulation
of
a
democratical
and
dialogical
 production
of
knowledge.






8


Thank
you
for
your
attention.
 
 
 1


Perhaps
one
of
the
most
revered
artists'
publications
of
the
1960s,
the
"Xerox
Book,"
published
by
dealers
 Siegelaub
and
Wendler
is
a
xerox
book
in
name
only.
Conceived
by
Siegelaub
as
an
inexpensive
artists'
 publication
‐
each
artist
was
afforded
twenty‐five
pages
[plus
a
cover
/
title
page]
to
execute
a
site
specific
 project
for
the
publication.
The
resulting
projects
were
among
the
most
important
ever
printed
by
these
artists
 Carl
Andre,
Robert
Barry,
Douglas
Huebler,
Joseph
Kosuth,
Sol
LeWitt,
Robert
Morris
and
Lawrence
Weiner.
 When
going
to
press
Siegelaub
discovered
that
xeroxes
would
be
more
expensive
than
traditional
offset
 lithography
so
the
xeroxing
was
forgone
for
reasons
of
expense,
however,
the
name
of
the
intended
publication
 lives
on.
Reference:
"Artists'
Books:
The
Book
as
Work
of
Art,
1963‐1995,"
edited
by
Stephen
Bury,
Scolar
Press,
 Hant,
Great
Britain,
1995,
pp.
47.
 2 
ME,
S.
12
 3 
ME,
S.
10
 4 
 ME,
 S.
 15.
 In
 diesem
 Sinn
 beinhaltet
 der
 Vertrag
 ein
 utopisches
 Moment
 und
 wird
 von
 dem
 festen
 Glauben
 getragen,
 die
 Beziehungen
 zwischen
 sozialen
 Klassen
 und
 dem
 Markt
 aufzubrechen.
 Nur
 Hans
 Haacke
 hat
 den
 Vertrag
 in
 seiner
 von
 Siegelaub
 erstellten
 Fassung
 verwendet.
 Lawrence
 Weiner
 »does
 not
 see
 why
 the
 artist
 should
 share
 in
 the
 profit
 the
 collector
 makes
 when
 reselling
 a
 work,
 since
 conversely,
 the
 artist
 would
 be
 obliged
to
pay
the
collector
in
the
case
that
a
work
is
sold
at
a
loss.«
For
Jenny
Holzer
it
was
more
important
to
 preserve
 the
 interest
 that
 artist
 continue
 to
 have
 after
 their
 works
 are
 sold
 than
 profit
 sharing.
 Adrian
 Piper
 »incorporates
 a
 critique
 of
 gender
 and
 race
 discrimination
 in
 her
 Agreement.
 Her
 »Discounts
 to
 Purchasers«
 clause
stipulates
that
›No
single
work
by
the
Artist
shall
be
sold
by
the
Dealer
at
a
percentage
discount
…
since
it
 is
already
subject
to
the
50%
Off
Black
Artists
Discount
and
the
25
%
Off
Women
Artists
Discount.«
For
Robert
 Projansky,
the
author
of
the
Contract,
it
is
clear
»that
the
Agreement
can
essentialy
only
be
 used
by
successful,
 established
artists
as
they
are
the
only
ones
that
have
the
power
to
get
collectors
to
accept
it.
In
order
to
make
it
 easier
 and
 more
 efficient
 to
 use
 the
 Agreement,
 Proansky
 drew
 up
 a
 heavily
 abridged
 version,
 the
 second
 edition,
in
1975.
Interestingly,
he
considerably
shortened
Article
7,
›Exhibition‹,
which
gives
artists
the
right
to
 have
a
say
about
the
use
of
their
work
in
an
exhibition,
since
it
imposes
the
greatest
restrictions
on
ownership
 rights.«
(18f). 5 
ME,
S.
20. 6 
Anna
Oppermann
after
VK,
S.
2. 7 
However,
certain
fashions
and
currents
may
support
that
works
of
art
are
locked
up
in
storage
and
therefore
 withdrawn
from
a
social
process
(and
from
the
formation
of
knowledge). 8
Since
1993
there
were
fifteen
new
installations
of
ensembles
worldwide.
In
nearly
all
cases
Ute
Vorkoeper
was
 in
charge
of
the
planning
and
realizing
of
the
re‐installation.
She,
Anna
Oppermann’s
Husband
and
an
other
art
 historian
thought
first
that
they
would
more
or
less
reconstruct
the
last
version
of
a
work
after
photographic
 documents.
Soon
it
turned
out
that
they
have
to
be
much
more
interpretative.
This
for
example
because
of
the
 conditions
of
the
space.
As
well
it
wasn’t
possible
to
reinstall
all
the
small
particels,
the
drawings,
objects
or
 photographs,
because
documentary
photgraphs
didn’t
exist.
Because
they
thought
too
much
in
terms
of
 reconstruction
the
reinstallation
in
the
end
was
a
bit
too
clean,
too
proper.
 9 
Seth
Siegelaub’s
Artist’s
Contract
remains
historically
relevant
because
he
articulated
rules
about
sales
and
 profitable
re‐sales
at
a
time,
in
which
artistic
practice
had
said
farewell
to
the
one
that
secured
the
character
of
 the
original
(work).
Open
dialogical
works
of
art,
that
are
based
on
reproducibility,
promise
a
emancipated
 viewer
and
a
democratic
process
of
knowledge. 10 
In
comparison
to
the
world
of
science
the
art
system
prevents
that
art
can
merge
into
the
process
of
 knowledge
production,
because
it
repeatedly
relies
on
the
material
ownership
and
on
performing
the
 psychological
connection
between
work
of
art
and
artist. 11 
The
general
Public
Licence
from
the
1980’s
defines
the
conditions
for
a
free
communication‐flow
between
 software
developers
and
supports
the
fact/the
idea
that
the
development
of
the
software
is
open
to
all
 developers,
that
the
program
may
be
reproduced
indefinitely,
etc. 12
It
is
much
easier
in
regard
to
functional
works,
such
as
software
or
instructions,
to
determine
if
appropriation
 means
improvement
or
worsening
than
it
is
for
works
of
art.
That’s
why
the
licenses
of
CreativeCommon
offer
 the
possibility
to
forbid
the
reproduction
of
a
work
of
art.
So
far
the
new
forms
of
the
production
of
knowledge
 and
culture
are
in
an
early
stage
of
(this?)
development.





9



 Please note that these podcasts discuss the legal position in the UK at the time of publication. They provide general information only and are not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.




10