Saturday, May 16, 2015

VARA and the public good, Part I of three

This will be the first of a series of posts explaining the logic behind the new project I will be launching June 21, 2015. In this post I will discuss one simple question. Briefly, where might there be a point of confluence, a trigger point, between public policy and ecological art practice? Could ecological art drive a wedge into unfair policies about eminent domain being used by fossil fuel corporations to destroy the environment? The logic I came to is based on a novel, untested aspect of the Visual Artists Rights Act (VARA), which is based on the term "moral" in the legal language of VARA, which refers to the conceptual integrity of an artwork.

I will preface this discussion by explaining that there were several aspects that inspired my thinking about the project I will be launching. One was circumstantial. Mid-February 2015, a small group of activists opposing the Constitution pipeline planned to go through New York State, including the New York State watershed, inspired by the apparent legal precedent of sculptor Peter Von Teisenhausen in Alberta, Canada, put out an open call through artist Lillian Ball, to a another small group, the ecoart dialog, which I co-founded in 1999. They wanted to know if trees might be copyrighted?

The Von Teisenhausen case stopped a pipeline from going though his ranch by asserting copyright protection. He claimed that his land was one work of art and could not be damaged by a pipeline. The case decision was indeterminate because the pipeline company withdrew their plan before the "moral" basis was tested in court. In developing the legal basis for the project I will launch, several other cases came to light. In one, there was an attempt to copyright a community garden. The judgement in that case, was that the nature of a garden is ephemeral and therefore could not endure as a statement of art. The third case, was a site specific art work on land taken over by a developer. Once more, the artist withdrew pressing the case and the judgment was that although the work was designed for the site, it could, in fact be moved, and once more, as in the case of Von Teisenhausen, VARA was not tested. The fourth case, I haven't had a chance to study in detail, and only know of hearsay. In that case, an Olmsted park was taken for eminent domain for a private developer to make a shopping mall. Without studying the case in detail, my hunch is that the effective copyright had expired, and neither Olmsted (deceased sone way to become ineffective) nor local supporters, had the wherewithal to prevail against the developers deep pockets. In the case of natural gas pipeline developed, such as Kinder Morgan, the pockets are very deep indeed to persuade local policy makers to go along to get along. I found these cases very provocative about relationships between copyright, eminent domain and what defines "public good," on which eminent domaine is ostensibly determined.

What was an interesting issue in these legal cases, as the late Emily Caigan pointed out in discussing what would become my project, was that the definition of "moral" in VARA, has never been tested.

The second issue that caught my attention was that landowners in the path of eminent domain takings live under the threat of arrest should any behavior be deemed "protest." This is interesting for three reasons. The first is that "public good" is being defined by fossil fuel corporations  and then enforced by publically elected representatives, whose political campaigns are often financed by those same companies. This gives fossil fuel companies the power of a police state to work their will for profit at public jeopardy and often, private ruin. The second aspect that caught my attention, was the fate of trees in the path of this pipelines, estimated to be 700,000 that would be felled. The irony of those trees in jeopardy of destruction is that we know fossil fuels are causing global warming and we also know that trees mitigate those effects. Therefore the pipelines, in addition to seizing private property for dubious "public good," which several studies contend actually destroy local economies for the shot term benefit of a very few, will be responsible for accelerating climate change, and will also reduce mitigation. That makes it arguable what the long term public good might be. The third reason this caught my attention is that for some time, the aesthetics of public art and social practice have circled around an indeterminate distinction between "art" and "protest.' defense of copyright under VARA requires drawing a clear line between art and protest.

Ecological art purports to pursue a "moral" or ethical, deep ecology based world view. It often strives to effect that world view as a coherent vision, through public art and social practice. The problem the original band of activists presented me with, therefore had several challenging aspects. The most basic challenge was a question underlying their original outreach was also one all of ecological art concerns itself with: what is the possible relationship between "good art," and public good when it comes to environmental protection?


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