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Published against the backdrop of “retracted life” under the current pandemic conditions, the November issue of A*Desk presents the work of twenty contributors who interpret a general concept of “retraction” in and out of the artistic context from various vantage points in various mediums. The issue is thematically organized into five weekly installments, each introduced by a segment of a running text written by guest editor Peter Freund.
Retraction 5: Copy/Right
Mireia c. Saladrigues, A close-up view of video 360_0333 from Virtual Tour
Carlos Miguel Sánchez, CMS Foundation: ¡¡SPAM!!
Vitor Magalhães, La chambre dans la région centrale. Where we incur, among other aspects, in the deferred, (sub)fragmented imaginary space.
Eva Sòria, The Law of Intellectual Property and Conceptual Art
Introduction (Part 5 of 5)
Already there is something radically peculiar about the most banal decorative image of a flower that, rarely contemplated, hangs on the wall of an ordinary household or workplace. Its flat two-dimensional surface stands entirely at odds with its three-dimensional reference. In the famous surrealist inscription, “Ceci n’est pas une pipe,” the shifter ceci presents not merely a clever, “context-bound” game that invokes and resolves a paradox but rather the ambiguous pointer reflects a dimensional contradiction in the image as such. The problem of even the floral picture, which never causes the passerby the slightest hassle, reflects nonetheless the irreconcilable character of reality divided between its meaning and its being. Only out of this division, found in even the most quotidian of images, can we ultimately pose the principal political question of retraction and the project of aretractive arts.
Before taking a step further, we should distinguish what is at issue here from two well-established lines of thought. The first: Whether analog or digital or even mental, the image has to lean on a material substrate that problematizes the purity of its message. One here argues that the image doesn’t begin as a material substrate in order to subsequently carve out a sign from its materiality. Instead, it’s the other way around: The image is a sign that retroactively marks itself as a material object, a secondary signification that frames or rationalizes the image. The second line of thought, which concerns itself with the decay of the aura and its resurrection, focuses on the problematic of the original and the reproduction. The question here addresses itself either to an original that is reproduced in copies (which simultaneously disseminate, degrade and broaden the function of the image) or to a copy that is altogether liberated from any original and that circulates in an abstract economy of semiotic exchange relations. On one hand, the fake, the knock-off, the imposter, and the double all present variations of the copy, decried in order to claim or restore the originality and self-possession of the original. On the other hand, the simulacrum that these reproductions embody marks the liberation of the copy into a life of its own originality.
By contrast, we are now talking about a question, overlapping with yet distinct from these two lines of inquiry. We are raising a conception in which something is already a copy of itself. The question of copy-making or appropriation here shifts into a problematic of self-appropriation. Therein the image embodies an asymmetrical dilemma in which it either stands for something or altogether fails to exist. We encounter here not the cozy coexistence of the old couple “appearance and reality” but rather a situation in which the image is forced de jure to imitate itself by presenting its identity – its being – in a copy of itself. As a result, the image holds in its dimension as copy a trace of its own lost being. Such is true even when the flat-bed picture plane – from patterned decoration to formal abstraction – endeavors to pass itself off as either pure appearance or pure object. Unlike the expansive character of reproduction, this self-mimicry retracts into a single inextricable form.
From this vantagepoint, the copy defies the self-possession of the image – or even the object – or, let’s take it one step further, even the subject. The copy thereby confronts the central question of property, not because the copy threatens to transgress the law but because the copy exactly embodies the law. We must shift here from a framework of reproduction to a framework of repetition. The image endeavors to cover over the hole that it simultaneously creates (e.g. the holes of reference, of ornament, of illustration) while its failure to do so compels it to repeat – that is, to copy itself again. This intrinsic repetition in the law of the copy shows its entanglement in the dynamics of enjoyment (in the psychoanalytic sense), the way in which the satisfying character of the image gives way to a dissatisfaction that it cannot completely overcome. Precisely at the junctures of its repetition, the image breaks from the property of a particularist vision (points of view, expressions and styles, objets d’art, artistic oeuvres and movements, art markets and collections) and enters the universality of the copy’s self-subversive structure. Here we can risk a legitimate question with which we might stipulate the crux of retraction: The images and their technologies that pervade our world today, that never deliver on their promises, and that dispossess us of the stability of our longed-for identities, how could these repeating images, these “copy machines,” precisely in their failed ambitions, become the basis of a collective project within an emancipatory politics? How could a politics of assembly be formed not on the image of an aggregation and inclusion of marginalized elements but on the structural lack of the all-inclusive, the central hole in the whole, the not-all of every totality that instigates and keeps alive the movement of an emancipatory aim?
This final installment of Retraction presents four works. The first investigates the reality of the virtual presentation of the art exhibition using 360-degree video technology and considers the differences, losses, and gains advanced by the virtual on the real. The project traces the inside-out connective tissue between the virtual and the real as a surface, in which, like the möbius strip or the Klein bottle, one cannot simply orient oneself from the standpoint of orthodox spectator behavior. The second entry introduces a full-scale art foundation in a net art project that retracts and develops the fundamental pretenses of art exhibitions in internet platforms. The third entry presents an epigrammatic text inspired by two canonical works of experimental film in which the recording apparatus significantly expands the frame of view only then, paradoxically, to retract the vision of reality into a view that transcends cinematic viewership. The last entry, written by an attorney and art historian, surveys the history, complexity and contradictions of current copyright law and intellectual property rights in relation to art, suggesting the ways in which the legal system lags behind not only contemporary art practices but also the expressed intent of intellectual property law.
 The grammatical shifter, classically described by linguist Roman Jakobsen, raises the problem of the split between utterance and enunciation, between what is said and the act of saying it. The typically-invoked example of the shifter “I” structurally confuses the grammatical and the speaking subjects, wherein the reference of the former both invokes and occludes the presence of the latter. Common interpretations notwithstanding, the “ceci” in René Magritte’s 1929 painting The Treachery of Images doesn’t resolve the conflict it raises but exposes it by impossibly referring to both the surface and the reference of the image at the same time. The problem here refers us back to the second installment of the current project, Retraction 2: Halting Problem.
 Some familiar 20th-century references: Marshall McLuhan’s maxim, “The medium is the message” from Understanding Media: The Extensions of Man (Toronto: McGraw Hill), 1964. Dziga Vertov’s concept of “kino-eye” that extends the human sensorium; Kino-Eye: The Writings of Dziga Vertov (Berkeley and Los Angeles: University of California Press), 1984. One also recalls the well-known reversal of denotation as the “alibi” for connotation in the work of Roland Barthes; e.g. “Rhetoric of the Image,” Image Music Text (London: Harper Collins Publishers), 1977.
 Some familiar 20th-century references: Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction,” Illuminations (New York: Harcourt Brace & Jovanovitch), 1968. Jean Baudrillard, Simulations (New York: Semiotext(e)), 1983. Within the artworld, examples abound from Andy Warhol to Sherrie Levine and Richard Prince.
 One is reminded of the anthropological mythology of a remote aboriginal who allegedly when handed a photograph of himself immediately turned the paper on its side curiously to examine the scrap, without registering the representation it captured. The equivalent is presented in a parody given by the Inuit Nanook (a.k.a. Allakariallak, who is nicely memorialized online as an “actor”) in Roberty Flaherty’s 1922 ur-documentary, “Nanook of the North.” In the film, the Inuit “eskimo,” when presented with music played on a phonograph, appears perplexed and bites the record disk that stores the music. Video retrievable from YouTube: https://www.youtube.com/watch?v=UqEIJM5TghY. For a polemical critique of Flaherty’s film (and the documentary form), see Jill Godmilow, “Kill the Documentary as We Know It,” Journal of Film and Video (University of Illinois Press), Vol. 54, No. 2/3 (Summer/Fall 2002). The point here is to expose the mythology of an object that precedes the sign.
 These maneuvers of course belong, for better or worse, to a version of Abstract Expressionism and Minimalism, at least at the hands of art critics Clement Greenberg and Michael Fried. Op Art of course plays with the dimensional contradiction between the flat surface and the referential depth.
 Narcissus repeatedly looks into the water as the retroactive empty leftover of his reflection. One is of course reminded of the Lacanian “mirror” in which a jubiliatory misrecognition (méconnaissance) institutes the principle of identity through a copy.
(Featured Image: Mireia c. Saladrigues, A close-up view of video 360_0333 from Virtual Tour)
Mireia c. Saladrigues
Close-up view of video 360_0333 from Virtual Tour
Virtual Tour started at the Second Research Pavilion on the occasion of the 57th Biennial of Venice. It initiates by making visible the device – a trolley – responsible for digitizing art venues in order to inquire about the transference of artistic exhibitions to virtual environments, a transaction originally marked by the corporate paradigm of the largest online search engine.
The research project, in progress, addresses in a website three different modes of virtualizing the Research Pavilion in order to explore the particularities, pitfalls and potentialities that are produced in the processes of twinning and reproducing a venue. From the constant annotation, the daily documentation in 360 degree video, and the creation of interactive topographical elevations, Virtual Tour understands virtuality as the potential of a situation that exceeds its actuality. Therefore, the project expands the temporality of the collective exhibition You Gotta Say Yes to Another Access while it enables ways of relating with art online that do not necessarily duplicate the conventions and the tacit rules established in analogue galleries.
In relation to the work in situ, Mireia c. Saladrigues makes a routine of pushing the trolley all around the pavilion while experimenting with the video documentation. The artist explores the technical possibilities of recording in 360 degree while testing its limits. For instance, she solely uses one of the two lenses of the camera, or sets the device to shoot only a few frames instead of a complete video, or runs rather than walk carefully the trolley.
On one occasion, Saladrigues places two convex mirrors – popularly known as Arnolfini mirrors – in front of the immersive device. With this gesture, the mirrored camera is placed at the centre of the composition, relocating the pavilion at the margins of the image. Whereas the two optics record their own reflexions on the dissimilar shiny surfaces, the exhibition becomes the background for a camera that documents itself when documenting.
The footage that the 360 degree camera generates is like a distorted flat image of a globe, a sphere on a sheet of paper that has to be cut and glued to become 3D. Stitching connects the divided video, but the resulting image – contrary to the paper globe – is in the interior of the sphere. The spectator is then placed inside the orb, immersed in the document, making possible the navigation all around.
In a symbolical gesture, the convex mirrors aim at cancelling the concave image that is generated in the spherical videos, but actually the optics of the 360 degree camera are also convex, so the test for cancelling the curvilinear perspective resulting of the fish-eye image -an intent to limit the expanded panorama – turns into a game of contraction that generates a mise en abîme.
In heraldry, the exact centre of the shield is the fess point, the abyss, which in French is named abîme. It is precisely at this point that the recursion generated in the image is located, but at the same time the central area of the recording is not as sharp as the perimeter. The 360 degree video – like all immersive documents of its time – shows less quality in the middle of the image than at the top and bottom. This happens after the stitching corrects the barrel distortion into a rectilinear format when building the spherical file. The Droste effect, then, is better appreciated in the non-stitched and non-injected original footage. An interesting exercise is to imagine that the two files -the formatted and the original- are placed in front of each other, building an infinite mirrored orb, feeding each other images recursively, sharpening the recorded reflections of the camera while deepening the optic abîme.
Mireia c. Saladrigues is an artist and researcher, or rather, artist-researcher. Her projects build on extensive inquiries while the particular research methodologies are based on her artistic practice.
Her artwork interrogates the experiences of art reception, based on investigations of the interaction between art and its public. Starting from her own personal state of alertness, she applies strategies that aim to understand the art context itself so as to generate a work that returns to the social sphere from which it emerged.
Saladrigues is a candidate for the International Doctorate (DFA) at the Academy of Fine Arts, Helsinki University of the Arts. Behaving Unconventionally in Gallery Settings documents cases of (human and non-human) alteration of cultural practices, proposing an artistic and theoretical rereading of nonconformity. The components of her research explore a wide field: from aspects of iconoclasm to the virtualization of exhibitions, from the cultural inscription of the public to the memory of matter in the form of particles.
She has exhibited in Europe, the United States, and Asia. From the conferences and symposia in which has participated, she underlines A Case of Iconoclasm on the Tip of David’s Toe and The Very First Sensorium, which propose another conference format more akin to the particularities of artistic language.
Carlos Miguel Sánchez
CMS Foundation: ¡¡SPAM!!, 2020
SPAM!! The image scam! …a publication of something “real imagined”….
So!! …like the image of a corpse starting to decompose, this is what happens in the bloom of a publication that heads the instagram cover for two seconds. Hours and hours of work that result in 100 liker, 200 likes, 1000 k. A publication has the value of what it charges in hearts or thumbs. That’s why I think the image scam is the most productive way to show what it is. CMS Foundation, is born, as a digital platform, an Instagram profile that I will use as a spam profile of Tinder, or rather as an operations center on which to show, with the minimum effort, those exhibitions that I think it is convenient, everything that I have always dreamed of doing in a gallery I will do, in my small foundation, everything that I think can be interesting from others I can replicate, or even supplant (as long as it does not incur in crime).
For A*Desk magazine I will prepare an exhibition agenda. I have thought of creating between four and five alter egos, fake artists with a very clear trajectory, very well differentiated from each other, always focused on the object and the installation, since that is the excuse for them to exhibit in my foundation. Let’s say that we can compare it with the film Multiple.
With this, what I try to value, is through the testing of the profile in Instagram, as the photo is the maximum current value of the work, it is a pure set through which we look and consume an image, real or not, the question is open as the entropic origin of the sandbox. Reality and fiction, like both colors of the box, are mixed, thus turning reality into a thick gray, in which you can’t scrutinize the dose of truth versus the dose of lie, but who cares about the truth! We don’t need it. The truth is a construction that we consider real through the convictions that our senses generate as such.
The lie of the cinema, knowing that something is not real and your senses admit it as real as someone who removes a fault. I know that this photo has a filter, that it is retouched, but it is beautiful!
Carlos Miguel Sánchez is born in Extremadura. Trained as an artist in Valencia; he has worked both as a collaborator with various artists and as an independent artist. His pretensions as an artist have always been assiduous to the object and space. In his career he has researched from set design in cinema, as an art director, as well as window dressing, installations in contemporary art galleries and also furniture design. In 2016 he founded Estudio Margen, together with his two partners, with whom he has created multiple sets and advertising spots for various brands.
La chambre dans la région centrale. Where we incur, among other aspects, in the deferred, (sub)fragmented imaginary space, 2020.
1.‘In order to know, we must imagine for ourselves.’. The film Rear Window, by Alfred Hitchcock, was released in 1954. The story and the plot are well known and have often been commented on and theorised by authors who relate it to an exquisite set of psychoanalytic themes (voyeurism, visual impulse, scopic regime, etc). Confined to his apartment after an accident, Jeff, a professional photographer, observes the real in an entirely new way, which we might almost call Kantian: his visual wanderings, in oneiric mode, which distance him from immediate understanding, at times suspend his rational judgment, but the real responds to him as something too overpowering, as if it were occupying a disproportionate space.
Another scenario: almost seven decades later the inhabitants of the planet isolate themselves in their homes in the face of an invisible global threat.
Hitchcock always knew how to make the audience laugh and then use the knife as many times as was acceptable to bring to the surface the horror … the (inescapable?) horror. A subtle, schematic effect in which the comic precedes the tragic, and which has, of course, been utterly trivialized by mainstream cinema.
2.The horror at that infamous expression ‘post-truth’. After history, after truth, ‘history returns to being natural history’. The unwanted figure is no longer airbrushed out of the photograph, it is simply invented. It is not a question of consummating a modification by means of a necessary absence, but rather of laying siege to pure absence. Absent, mute, incorporeal subjectivity. The organ without organs. The data (image) of the non-thing. Expression of fright. Nudus in nuda terra.The retracted bodies are isolated in a singular taciturn eclipse.
3.Let’s consider, for a moment, an interior garden. An almost natural artificiality, which dazzles us as the same time as it paralyses us. Visually, and precisely because there is a continuous movement of the image through 360 degrees, the film leaves us with a false impression of a loop (which it isn’t, because there is a variation in the movement towards the end) in which small alterations occur. Subfragmentations, we could call these unfulfilled microperceptions (we can hardly avoid thinking here of José Gil and the suggestive book of his that takes the Kantian-Deleuzian course).
Inverting the model of interruption (instituted by montage and cut) or of expanded meta-reflexivity (visual-temporal dilation) produces a subfragmentary gravitation, which somehow ends up revealing the apparently imperceptible. In the same way that when we walk in the desert we end up going around in circles, the room becomes a closed circuit, a refracted and apparently invariable gaze. It reveals nothing because it contains everything. A movement in the pause or a pause that seems to sustain the movement.
La Chambre, a 1972 film by Chantal Akerman, is that inner garden.
The round: A chair with a red back that fixes the viewer, two more chairs that look at or turn their back on the bed, the hanging clothes, a table with a still life, the perfectly imperfect light. Someone who moves almost without moving. And is barely someone. The shot that breaks down and then resumes its course and perhaps simulates a human gaze: neither always attentive nor too scrupulous, a loose knot of fabulation. Voyage autour de ma chambre. Infinite restlessness in a minimum displacement.
4.To imagine. Not (to want) to question what we imagine, that would be the rule. The moment we begin to ask (ourselves) questions, to interrogate – with the link between that maintains with legal cases – we break the charm of the imaginary, we defer it. A magic potion, in an ampoule, that we succeeded in disposing of and that contained the understanding of the unknown. The not wanting to know. Or knowing violating oblivion. In this way we could circumscribe the imaginary space. Open in its very limit. Closed in its retracted amplitude. Maurice Blanchot would surely have put it in different terms: the imaginary substrate, enchanted by the inhuman song of the sirens, enunciates the nature of the narrative space: an uncompleted space .
5.To question the (plural) power of images. The skin in the image is shed and twisted almost simultaneously. With a voracious, anthropophagic appetite, it devours its children, the flesh of its flesh. We attend such a feast in the cult film of modern Spanish cinema, Arrebato, by Iván Zulueta (1979), but also in Camera (2000), that neglected little film by David Cronenberg. The image flexes over its own nature to such an extent that it is held hostage by the vision that created it. The gesture, contrary to what we might suspect, does not show an introspective enchantment, begun in the magnificent Soviet film The Man with the Camera (Dziga Vertov, 1924). The gesture is that of a feverish contraction of the limbs (almost close to a horror movie). Like that of a cramp that blocks us, immobilizes us and holds us in a limbo profoundly fixed by the image.
6.The erratic angle of Automavision (developed by Lars von Trier in Direktøren for det hele, 2006) establishes a mechanized, vacillating, voided gaze, an arrogant control that devours everything with the ironic distancing from human control. Like the Napoleonic dream of Abel Gance (Polyvision), the narrative despairs in the face of such inordinate pride. And can we avoid thinking of flight simulators? Radical visual automatism. Seeing everything without being there. Autistic proximity to reality or how to try out the speculated real. We encounter a similar (and equally ironic) sensation in Michael Snow’s La Région Centrale (1971), where we feel like the crew, or at the controls, of an automated vehicle that remains attached to its support. Within this kind of invisible capsule we engage in a holistic yet constrained and abstract scanning of the landscape.
7.Two characters. A desert. Nothingness. The circular movement that unites them, separates them. The baroque horror of nothing. Revolving on its own axis, its gravitational centre, vital, but at the same time destructive, oppressive. They succumb. There is no point of arrival, the coordinates are not known, there is not even an axis, a morphological element. Just two characters in their solitary toils. Not even lost yet … they are merely at the mercy of the involuntary, magnetic movement oftheir bodies. Of the axis without axis. Of the axis in the nothingness. The nothingness amalgamated in the ethereal sand of the desert. Vulnerable phenomenological bodies.Somewhere between La Cicatrice intérieure (Philippe Garrel, 1972) and Gerry (Gus Van Sant, 2003).
8.Agonic, agnostic axis. Ultra-metaphysical? Immutability of the totalizing continuum, now retracted. Visual pain where the impossibility of escape is exposed. Inflection. The rambling of a limit which succeeds in crossing into an impracticable ending (the space beyond the goal is a no-man’s land), in an intimate, totalitarian spasm, as controlling as it is absurd: ‘he was confined in the space of the earthly breath, but expelled from the space of the spheres, from that of the true breath.’.
9.A body (on) a chair. A body (on) a bed. Or two bodies at absolute rest. ‘Only boredom allows us to savour “pure” time; that is, a time very much like physical time”. In Reasons for Knocking at an Empty House (1983) Bill Viola explores a situation of extreme isolation similar to a Tarkovsky sacrifice, to imagine ourselves in Stalker or Sacrifice, inhabiting – or inhabited by? – a house inside a house. A house equivalent to an island. The interesting ritual-sacrificial aspect of the video-performance of the nineteen seventies is a long way now from the slow-motion artifices and the continual esoteric-religious effects of his more recent and better-known artistic output. Not here. Little more than his body, his isolated conscience and a video camera which records the retraction of external time in the austere, confessional interior of a room.Other earlier actions come to mind: Mick Hartney in the video State of Division (1979), his face in dialogue with his conscious and unconscious; the innumerable actions of Vito Acconci, a poet-performer who provoked the public in a variety of unexpected situations; Yoko Ono and John Lennon’s peaceful, pacifist and over-mediatized Bed-ins for Peace in 1969; Chris Burden in his extreme isolation actions, such as Bed Piece (perhaps the best example: the artist alone, never leaving his bed, in an unfrequented space in the Market Street Gallery, from February 18 to March 10, 1972) and Five Day Locker Piece, from a year earlier; or One Year Performance (Cage Piece)by Tehching Hsieh, a contemporary Taiwanese artist, one of his five performances entitled One Year Performance 1978-1979, all according to the same physical and temporal method but in different circumstances; up to the most recent version of Tilda Swinton’s performance-cum-installation The Maybe (2013), in which she exposed her body confined inside a small display case at MoMA in New York for a week, like a specimen paradoxically on the brink of extinction.
10.La chambre dans la région centrale. To trace an impossible phenomenological axis between interior and exterior. The two works, Akerman’s and Snow’s, represent that uniqueness and somehow reflect an uncomfortable yet primordial, atavistic, or even geo-personal sense of detachment. Perhaps we should posit a dialectic between inner space and outer space in some other form. In such a radical way that the two overlap, one within the other, in a single flow; or, better, in a single imaginary space. No interiors, no exteriors, no scenario. ‘Impetuously though gently, room and landscape united .
The imaginary exists as a deferred, subfragmented myth (perhaps close to the Duchampian inframince…). The ‘imaginary life’ (thinking of Jean-Paul Sartre) between two worlds: the possible and the very far from probable, but with real features nonetheless. ‘The rite genetically precedes the myth”.
11.Back and Forth (Michael Snow, 1969). To annul the space between two points. To annul the interval. To exhaust it. In doing so, time is accommodated to space, or vice versa, space is adjusted or reduced to time, in which it might find an interval of metaphysical penetrability. The pleasure of libidinous movement. To penetrate the impenetrable. To manifest without exhibiting. To touch without touching (Noli me tangere).
12.‘The unimaginable was repeated to make it imaginable.’. Images snatched from hell, as an unimaginable instance . The critique of the image opens only onto the interior of an irremediably indefinite imaginary space. Close at hand but prolonged. An increase (in many respects fictitious, in others negotiable) of space-time: fermentation on account of anguished knowledge. ‘Imagination morte imaginez’. Imaginary life (contemplative?) – active life (almost always fabled). What interval might there be between the two? Consciousness, perception, politics. Excessively prodigious triad. Thought, beyond death, continues on its way …
Let’s go back to the idea of desert. To desert from our daily chores: to switch a chair for a frozen mountain, a kettle for a stone, a window for the sky, a table for a patch of land … and so on. What difference does it make? They are only mental images, two ubiquitous axes which a simple montage would serve to place in parallel. ‘It has not been the event of the actual encounter, but the opening of that infinite movement that is the encounter itself, always at a distance from the place and movement in which it is affirmed, because in that same distance, imaginary distance, the absence and only at its end does the event begin to take place, the point at which the truth proper to the encounter is fulfilled, from which, in any case, the word that pronounces it would like to be generated.’.
 Georges Didi-Huberman, Images in Spite of All. Four Photographs from Auschwitz (trans. Shane B. Lillis). Chicago & London, The University of Chicago Press, 2003, p. 3.
 Roberto Calasso, La rovina di Kasch. Milano, Adelphi, 1983; The Ruin of Kasch (trans. Richard Dixon). New York, Farrar, Straus and Giroux, 2018, p. 3.
 José Gil, A Imagem-Nua e as Pequenas Percepções, Estética e Metafenomenologia. Lisboa, Relógio D’Água, 1996.
 See Maurice Blanchot: Le Livre à venir, Paris, Editions Gallimard, 1959; The Book to Come (trans. Charlotte Mandell). Stanford, CA, Stanford University Press, 2003, and L’Entretien infini, Paris, Editions Gallimard, 1969; The Infinite Conversation (trans. Susan Hanson). Minneapolis and London, Minneapolis University Press, 1993.
 Hermann Broch, Der Tod des Vergil. Zürich, Rhein Verlag, 1947; The Death of Virgil (trans. Jean Starr Untermeyer). New York, Random House, 1972).
 Étienne Klein, Les Tactiques de Chronos. Paris, Champs Flammarion, 2003.
 Broch, Op cit, p. 134.
 Jean-Paul Sartre, L’Imaginaire: psychologie phénoménologique de l’imagination, Paris, Éditions Gallimard, 1940. The Imaginary: A Phenomenological Psychology of the Imagination (trans. Jonathan Webber). London, Routledge, 2004.
 Hans Blumenberg, ‘Wirklichkeitsbegriff und Wirkungspotential des Mythos’, in Ästhetische und metaphorologische Schriften. Frankfurt, Suhrkamp Verlag, 2001.
 Harun Farocki, ‘Reality Would Have to Begin’, in Working on the Sight-Lines. Amsterdam, Amsterdam University Press, 2004, p. 198.
 Didi-Huberman, Op cit.
 Samuel Beckett, Imagination morte imaginez. Paris, Les Éditions de Minuit, 1965; Imagination Dead Imagine. London, Calder and Boyars, 1965.
 Blanchot, Le Livre à venir, p. 16.
Vítor Magalhães is an artist and professor at the Faculty of Arts and Humanities of the University of Madeira. PhD in Aesthetics and Theory of Art/Audiovisual Communication at the University of Castilla-La Mancha, Faculty of Fine Arts, Cuenca. Author of the book Poéticas de la Interrupción (Madrid, Trama Editorial, 2008), Escritos sobre Arte Award 2007, Art and Law Foundation. Themes and methodologies
that run through the development of his artistic projects and his research: the processes of memory linked to a quasi-archaeological and critical methodology of modes of representation; the voice-time as an interrupting practice of languages; the transnarrative devices of the image; the paradoxical relationships between image and text; or the conceptual diagrammatic praxis in contemporary art.
The Law of Intellectual Property and Conceptual Art
Artists are essential in democratic societies. Art enriches society; it helps us interpret and reflect on reality. Society needs to equip itself with the necessary laws to ensure that artists can live by their work and thus that we may continue to benefit from and be enriched by their creations, even when these can be reproduced without their creator being able to do anything to prevent it.
It was for this reason that the first intellectual property law was passed, more than 300 years ago, in Britain in 1710. The so-called Statute of Anne recognized literary authors their right to property for a specified period of time over their works, intangible assets that they could reproduce infinitely and beyond his control. Its objective was to protect authors, but also to promote learning and the enrichment of society by ensuring that authors had an economic incentive to continue to create new work. Although in its origin this was a law oriented towards literary compositions, the scope of the protection of intellectual property was soon extended in Britain and in other countries to all forms of creation, including the visual arts.
If a work of visual art is considered eligible for protection, the objective of intellectual property law is to encourage its dissemination by giving legal protection to its author in order to obtain a financial return from it. The second objective of intellectual property law, which was gradually adopted in continental Europe during the Romantic era and has remained in European legislation to this day, was and is to protect the moral rights attaching to a work, especially those of authorship and integrity.
But the condition of ‘protected work’ conferred by intellectual property law does not always coincide with the concept ‘work of art’. If an artwork fails to meet the requirements for its consideration as a ‘work’ under copyright law, it is not protectable and the objective of giving authors a means of making a living from their endeavour fails with it. Is intellectual property law an instrument for encouraging artists? Yes. Is every created works eligible for protection under the laws of intellectual property? Evidently not.
So what does a work need in order to be copyrighted? The requirements established by intellectual property law are originality, expression in a tangible or intangible medium , and artistic, scientific or literary content. Another condition which is sometimes required is that the work was created by an ‘author’; that is, a human ‘creator’.
Originality is looked for in the material execution of the work, in what can be seen, but never in its conceptualization. A work is original when it possesses a degree of novelty in relation to existing works, when it reflects the personality of the author, or, in the judgement of the Court of Justice of the European Union, ‘if the author was able to express [their] creative abilities in the production of the work by making free and creative choices’  The key factor is the ability to choose the final result, form or expression of the work. When the creative intention of the author is not to make such a choice but to let an algorithm decide, the final outcome of that creative process is not eligible for protection by intellectual property law. The code with which the algorithm was programmed may be protected if it is original and if its author intends it to be so, but the result (formal, visible, perceptible) of the work will not be.
Let’s move on to the second requirement, that one of the basic concepts of intellectual property is that the expression of an idea is protected but never – never – an idea. To confer intellectual property protection (and thus to concede ownership by an author) on an idea would be contrary to the freedom of the market, and even to freedom of expression.
This requirement immediately excludes many works of conceptual art from intellectual property protection. Sol LeWitt (Hartford, Connecticut, 1928–New York, 2007) offered the following definition: ‘In conceptual art the idea or concept is the most important aspect of the work. When an artist uses a conceptual form of art, it means that all of the planning and decisions are made beforehand and the execution is a perfunctory affair.’
‘Retraction’ in the arts, as in those works that fold back into themselves or are created by algorithms whose artistic value is a recontextualization rather than the aesthetic result, the works whose essence is intrinsic rather than extrinsic, do not fall within the scope of the protection established by intellectual property law and as such are outside the terms of its material application.
But wasn’t intellectual property intended to be an instrument for encouraging artists? Or only for artists who create certain kinds of work? The cornerstone of intellectual property is, in effect, the definition of what constitutes a work, not an artist. The definition of ‘protectable work’ in terms of intellectual property in the field of the visual arts is limited to a very specific and certainly nineteenth-century conception of works of art which does not take into account the innovation of new formats and contemporary narratives.
Despite the fact that its material object of protection is the original expression of a work of artistic, scientific or literary content, the law makes no attempt to define who is to be considered an artist, a scientist or a writer, but confines itself to defining what counts as a ‘work’ and to classifying these ‘works’ into categories.
On the other hand, to cite a famous and well-respected judge: ‘Copyright, especially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public . There are a number of limits designed to respect the balance between the right to intellectual property of the authors of protectable works and the common good.
There are several reasons that justify the existence of legal limits to the exclusive rights of exploitation of the creator. On the one hand, not only fundamental rights such as freedom of expression and the right to information but also general interests such as education, the right to culture and the exercise of the activities of certain cultural and academic entities or the effective functioning of the public authorities. In addition, the move to digitization has also introduced limits of a more technical nature with regard to the ‘technical’ copies necessary for the proper functioning of telecommunications.
The definition of these limits or exceptions in the exercise of copyright has been one of the most controversial issues raised by the most recent EU directives and their progressive incorporation into the laws of the various member states. With the rapid evolution of technological changes, there was clearly a need for these limits to be flexible enough to adapt to new situations, but the evolution of the visual arts has had nothing to do with this adaptation of the legal limits to new technologies. They have simply not been taken into account.
In many cases it is the artists themselves – the subjects whom this law is supposed to protect – who will be harmed by a straitjacketed system that does not permit the use of other people’s works if they do not fit within one of the limits.
The artistic practice of appropriating the works of others is deeply rooted in contemporary culture. It is more than a hundred years since Marcel Duchamp created the most famous of his readymades, Fountain. In 1981 Sherrie Levine presented After Walker Evans, exhibiting works photographed directly from a Walker Evans catalogue, and in 1989 Richard Prince created Untitled (Cowboy), an unmodified copy of a Marlboro advertisement: both of these artists question the very essence of the artwork and the photograph, but their artistic discourse does not tally with any of the exceptions contemplated in intellectual property law for using the work of a third party without express permission.
From Douglas Gordon’s 24 Hour Psycho (1993), in which the Hitchcock film is slowed down to two frames per second instead of the usual 24, to the installation The Clock by Christian Marclay, a 24-hour loop composed of excerpts from classic films whose screening is synchronized to show the actual time at which each one appears, the recontextualization and juxtaposition of other people’s works contributes to the richness and diversity of readings and re-readings, going far beyond the original meaning of the co-opted works.
However, this practice, so widespread in the contemporary artistic context, has no secure place in intellectual property law.
If, in the past, artists like Turner sought inspiration from nature by looking out the window of a railway carriage on a stormy day, for the 21st century artist the ‘window’ is the computer screen, and the ‘brush’ is the cursor of the mouse. This fundamental change in the form of expression has dramatic consequences in the legal analysis of contemporary art from the perspective of intellectual property law.
The legal principles that regulate an artist’s use of other people’s works in his or her creations allow this practice only under very restricted conditions. Both the closed limits of the continental European system and the complex jurisprudential framework of Fair Use in the Anglosphere systems leave almost no room for artistic appropriation.
In continental Europe and in Latin America, intellectual property law has conceived a series of circumstances in which the unauthorised use of a work by a third party may be justified: parodies, educational uses or quotations; the right to a panoramic view (works permanently located in the public space); and uses in favour of freedom of expression: teachers can use images in the classroom, a museum can make copies of works protected by copyright for conservation purposes, a tourist can take a selfie next to a sculpture in a public space and post it on Instagram even if it is protected by copyright. But artists will not be able to appropriate the works of others to create their own works. There is no clearly defined exception for artistic uses. The message being sent by the European legislator to contemporary artists, to artists who work with found footage and to the institutions that support and exhibit them is uncompromising in this respect: copying the work of another to integrate it into the creative process is never accidental. Therefore, and as a general rule, this message is that if an artist wants to copy the work of another they may do so, but must pay to do so.
A number of high-profile verdicts make this clear: Luc Tuymans was found guilty of unlawfully copying a photograph by Katrijn Van Giel on his canvas A Belgian Politician, in which he reproduced in paint on canvas a picture taken by the press photographer . The photographer Bettina Rheims was found to have illicitly appropriated a work by Jakob Gautel, Paradis, in her triptych “La nouvelle Eve” in which she used Gautel’s art installation as a background for a composition of her own.
United States law has the doctrine of fair use, a justification of the use of third-party works without permission based on the principle that, instead of organizing possible uses of protected work into categories and codifying these, it assesses unauthorized uses case by case on the basis of four factors.
The aim of the fair use doctrine is to strike a balance between copyright and creativity without obstructing the emergence of new creations. The United States Supreme Court has characterised fair use as an instrument for safeguarding both freedom of expression and the original purpose of copyright, which is to encourage and encourage creativity, but jurisprudence does not show that artists can safely avail themselves of this exception.
On the one hand, the fair use doctrine allows the courts a certain flexibility in taking into account the specifics of each case and the precise allegations made. On the other hand, this same latitude generates a considerable amount of jurisprudence, which can become contradictory and give rise to much legal uncertainty. Shepard Fairey had to negotiate with the Associated Press agency over his unauthorized use of the famous Obama photograph for the ‘Hope’ campaign. Jeff Koons lost a lawsuit against him by the photographer Art Rogers for turning one of his photographs into the sculpture String of Puppies, yet Richard Prince won the suit against him by the photographer Patrick Cariou for having copied from Cariou’s book Yes Rasta to create his series Canal Zone, on the grounds that he had modified, cropped and added various elements to Cariou’s photos.
The purpose of intellectual property law is to prevent third parties from taking advantage of the creative work of others to unfairly enrich themselves, but is stopping artists from using any work protected by intellectual property law when they regard such use as necessary to conveying their artistic message compatible with this?
The debate on the mismatch between the objective of providing an author with the requisite legal means of benefitting from the exploitation of his or her work and another artist’s need to use sources of all kinds in making their own creations has not been able to cross the threshold of discussion by the legislative branch. Ever since Vasari (by way of Cosimo I de’ Medici) founded the Accademia delle Arti del Disegno in the sixteenth century, artists have started out on their creative careers by copying the works of established masters. Why, then, has the possibility of contemplating a right of use not been taken into account, setting a limit that would allow artists to exercise their fundamental right to freedom of creation and expression by incorporating the work of others into their own works?
Intellectual property law adapts to the needs and claims of the works created by cultural industries that base their business model on the exploitation of copyrights. Video game manufacturers, publishers, production companies … in Britain even the drawings of a toaster were protected as a work by assimilating them to the category of a sculptural work. But what about the artists? Software is protected exactly as if it were a literary creation. So-called ‘mere photographs’ (which do not satisfy the condition of originality, such as pictures taken by satellites and other non-artistic photographs) have their commercial value protected by conferring ownership on the company that paid for them. It seems that the claims of many visual artists are posited not on a business model based on the exploitation of their exclusive rights as authors, but are instead aligned with those positions that are most critical of copyright and call for greater flexibility in the limits.
In a post-Covid era in which the revenues of the cultural sector are plummeting, in which all content is digitized and the possibility of pursuing a professional career and making a decent living in the visual arts sector has all but vanished, we might expect it to be the artists themselves who demanded a tougher implementation of exclusive rights that would enable them to live off their work. Surprisingly, that is not the case. Artists hold the exclusive rights to their works (provided they are so considered) but they are also, and primarily, users of the works of others. They need these works to be able to create, to be able to incorporate them into their own creations and make these public without legal uncertainty for themselves or for the institutions that disseminate their works.
In the complex drafting of the directives and their incorporation into national laws, something has been lost along the way: the simplicity of the spirit of intellectual property law, which was to protect the creators and prevent the unjust enrichment of those who used their work in a way that was prejudicial to the owner of the copyright. The essential does not need exquisite legal sophistication. The legislator legislates to protect business models, not creativity. Something is wrong. Something doesn’t fit.
 In the United States, in addition, a fixed form is required in the case of ephemeral works: a musical performance must be recorded in order to be protectable.
 This was decided by the Court of Justice of the European Union in the ruling PAINER 1/12/2011, C-145/10, ECLI: EU: C: 2011: 798, in which protection was given to a photo-fit image of a girl reproduced without the permission of the photographer, when the girl’s disappearance was reported in the press.
 LEWITT, S. “Paragraphs on Conceptual Art”, Artforum, vol.5, n. 10, Summer 1967, pp. 79-83.
 Pierre N. Leval, Harvard Law Review Vol. 103, No. 5 (Mar., 1990), pp. 1105-1136. Cambridge, MA, The Harvard Law Review Association
Eva Sòria is a jurist and cultural manager. She graduated in Art History from the Universidad Autónoma de Barcelona and studied painting restoration at the Diputació de Barcelona and the Palazzo Spinelli in Florence. Her interest in the legal issues raised by interventions in artistic heritage led her to study law, specializing in intellectual property and international law at the “Law School” of Golden Gate University in San Francisco. She began her practice as a lawyer at UNESCO during the negotiation for the Convention for the Safeguarding of the Intangible Cultural Heritage 2003. Her professional career as a jurist is developed in the field of research and teaching: She is the author of numerous articles and essays on Art and Copyright and has given classes and conferences for both jurists and artists. Her field of research is the fit between contemporary art and copyright. She currently works at the Institut Ramon Llull, the public entity that aims to promote Catalan art and culture internationally, and is a doctoral student at the public law department of the Universitat Autònoma de Barcelona with a doctoral thesis that analyzes the fit between the Intellectual Property Law and contemporary creation.