Post-launch, parsing common good, public good, public use and moral rights for "Blued Trees"

Detail from the June 21, 2015 overture launch of Blued Trees for the Summer Solstice in Peekskill, NY, where the projected Algonquin "natural" gas pipeline expansion would intersect the Indian Point nuclear plant. The slurry of ultramarine blue pigment and buttermilk that would grown moss, began the sine wave on each painted tree at the base of the trunk and reached as far as our tallest participant could paint, to evoke the course of precious clean water from roots towards the sky for the good of all life.

Last weekends' launch went very well, with about 26 participants, press, 6 international venues for the Greek Chorus and about twenty trees painted on the overture site in Peekskill. It concluded with a performance, which has been documented and will become part of a video. Soon, I will be assembling the documentation of the day. It will be filed for copyright protection with the purpose of redefining the moral rights of the art, where it intersects the contemporary meaning of public good.

Today, the Supreme Court should be ruling on the scope of the EPA's powers to regulate emissions. This morning, someone reminded me that today is also the anniversary of the notorious Kelo case on eminent domain takings for public use and questioned whether the phrase public good in referring to what Blued Trees address is appropriate? The Kelo case in the Supreme Court was a landmark case in the history of ruling that private land could be take for public use. The Kelo case and the EPA ruling both address this crucial question of what is public good in todays world?

Pope Francis has addressed these concerns about public good by asking the world to consider the common good as something beyond greed. Recently, some young people in the Netherlands have sued their government for endangering the common public good by not doing more about global warming.

The legal definitions of public good and use go to redefining the economic benefits of public good in public use. In an ideal American courtroom, a witness should be Robert Costanza, an ecological economist who has written extensively about factoring in the value of “natural resources” when calculating a fair price on the use of those “services.”

"The services of ecological systems and the natural capital stocks that produce them are critical to the functioning of the Earth’s life-support system. They contribute to human welfare, both directly and indirectly, and therefore represent part of the total economic value of the planet. We have estimated the current economic value of 17 ecosystem services for 16 biomes, based on published studies and a few original calculations. For the entire biosphere, the value (most of which is outside the market) is estimated to be in the range of US$16–54 trillion (1012) per year, with an average of US$33 trillion per year. Because of the nature of the uncertainties, this must be considered a minimum estimate. Global gross national product total is around US$18 trillion per year. “ Costanza et al 1997 http://www.esd.ornl.gov/benefits_conference/nature_paper.pdf

If the goal would be the Supreme Court, then Scalia’s love of verbal specificity is critical. I think Blued Trees might be in good company going forward, with many others setting new precedents. Today’s ruling on the EPA may be especially critical.

….

Re: Kelo decision: "the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.” -wikipedia

…

"In economics, a public good is a good that is both non-excludable and non-rivalrous in that individuals cannot be effectively excluded from use and where use by one individual does not reduce availability to others.^[2] Gravelle and Rees: "The defining characteristic of a public good is that consumption of it by one individual does not actually or potentially reduce the amount available to be consumed (used) by another individual” '. -wikipedia

…..

"In philosophy, ethics, and political science the common good (also common wealth or common weal) is a specific "good" that is shared and beneficial for all or most member of a given community.

The good that is common between person A and person B may not be the same as between person A and person C. Thus the common good can often change, although there are some things — such as the basic requirements for staying alive: food, water, and shelter — that are always good for all people.” -wikipedia

…..

https://www.stlouisfed.org/publications/inside-the-vault/spring-2007/eminent-domain-should-private-property-be-taken-for-public-use

"In its 5-4 majority opinion, the U.S. Supreme Court stated in Kelo that the government can never take property from one private party for the sole purpose of giving it to another, even if just compensation is paid. On the other hand, the government can always do so if the general public acquires some actual use of the property. The court has been defining the ground between these extremes since the late 1800s. From the start, "it embraced the broader and more natural interpretation of public use as 'public purpose,'" the court said in Kelo, and deferred to legislative declarations about public use and purpose. 

The Public Good vs. Public Goods

Economists recognize a difference between "private goods" and "public goods." Private goods are both "rival in consumption" and excludable. Rival in consumption means that one person's consumption of a private good denies others the opportunity to enjoy the good. The price of a private good is essentially a result of the good's scarcity, and some individuals will be excluded from consuming the good because they are not willing to pay the price of the good. Unlike a private good, a public good is both non-rival in consumption and non-excludable. The textbook example of a pure public good is national defense because if one U.S. citizen receives the protection of national defense, then others will necessarily benefit from that protection. One person's consumption of a public good does not deny others from consuming the good, and people can use the public good without paying for it. Because the additional cost of providing the good to another person is essentially zero (since all people can use the good once it is provided to one person) the market price for additional users would be zero, which would not be practical for profit-making firms, and the good would tend to be undersupplied in the market."

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?

TO BE CONTINUED.