ESSAYS Mousse 25
The Artist’s Contract / from the Contract of Aesthetics to the Aesthetics of the Contract
By Daniel McClean
Superflex, Social Contract, 2010. Courtesy: Superflex
Starting with Conceptualism, an artistic approach has emerged that reflects on the contractual, economic and social relations governing the mediation of art. Daniel McClean, an expert on artistic and intellectual property law, examines this “legal moment” in artistic production, which uses the “contract” as a method of neo-institutional critique, placing it at the center of the work and empowering the artist in relation to other parties, particularly collectors.
In the seminal Artist’s Reserved Rights, Transfer and Sale Agreement, drafted in 1971 with the lawyer, Bob Projansky, the legendary Conceptual art dealer and curator, Seth Siegelaub created a model contract for artists to protect their economic and authorial rights when selling their work.
This legal document/manifesto also known as The Artist’s Contract (which would prove to be Siegelaub’s final gesture as a dealer/curator) contains many controversial and forward-looking conditions. In particular, it provides that artists should be compensated at the time of the re-sale or transfer of their work if it has appreciated in value and are able to control the public exhibition of the work following its transfer. Siegelaub and Projansky further stipulated that the Artist’s Contract should be legally binding upon future owners of the artwork through its repeated ratification linking collectors to the artist in a chain of covenants.
Though resisted by collectors and not widely used by artists (with the notable exception of Hans Haacke), the Artist’s Contract would become a key moment in the history of Conceptual art. If Siegelaub’s aim was to politicize and render egalitarian the economic conditions which govern the art world, the Artist’s Contract also made visible the capitalist relations which underpin the production and distribution of art. Paradoxically, by making visible the artistic authorship and ownership of the dematerialized artwork, the Artist’s Contract as Alexander Alberro highlights, would unwittingly contribute to the circulation of Conceptual artworks as commodities.
In another sense, the Artist’s Contract also raised the possibility that the contractual conditions that surround the artwork could become part of it thus paving the way for future transformations in art. This possibility is inscribed in the contract’s instructions which stress that each time ownership of the artwork is transferred an accompanying legal “Notice” should be attached to the artwork, physically if possible, or if not (as with many Conceptual artworks) then attached to the artwork’s documentation instead. The Notice might be placed “on a stretcher bar under a sculpture base or wherever else it will be aesthetically invisible yet easily findable”, and if the work was only recorded in documentation, then the artist or collector should “glue the NOTICE on the document”. In this way, the Notice would become closer to being a part of the artwork, drawing the legal conditions that articulate its authorship and provenance into its material fabric.
It is perhaps unsurprising that almost four decades later, artists who wish to reflect upon the social, economic and legal relations which underpin the production and distribution of art should adopt the form and structure of the contract, moving it from being a supplementary “document” to integrating it somewhere within the frame of the work.
A notorious example of this integration is Andrea Fraser’s Untitled (2003). Here the artist entered into a transaction with a male collector whereby she agreed to have sexual intercourse with him in exchange for payment (rumored to be the sum of $20,000), the act being “tastefully” documented in a 60 minute video recording shot in a room at the Royalton Hotel, New York, which subsequently became a limited edition artwork. Fraser brutally links (female) prostitution and art-making with (male) power and art collecting: the sales contract is no longer an accompanying document but the invisible code that generates the work.
A less aggressive elision of contract and work is found in Jill Magid’s Auto Portrait Pending (2005). In this wry self-portrait, the artist’s life is literally and metaphorically at stake. Magid entered into a contract with a US-based diamond company (ironically named Life Gem) that upon her death it would transform the carbon from her cremated remains into a one-carat diamond. In her installation at the Centre d’Arte Santa Monica, Barcelona, Magid presented the type of diamond that she will eventually become along with accompanying legal documentation, including a preamble, and another contract (to be executed) for the sale of the diamond to a beneficiary. Magid’s work reverses Fraser’s Untitled (2003); here the contract code is made visible and it is its subject that is invisible. The work invites speculation as to what will happen to the artist’s body when she dies (will she become a diamond?) and to the ownership of the diamond (will the diamond be transferred as an artwork to a beneficiary?).
What explains the prevalent use of contracts amongst contemporary artists and this surprising “legal moment” in artistic production? First, as seen in the works discussed above, the contract allows for different protagonists and relations to be inscribed diagrammatically into the work. In particular, the contract allows the artist to be placed at the centre of the work empowering the artist in relation to other parties, particularly collectors (thus ironically, echoing Siegelaub’s document).
At the same time, the contract documents the process of negotiation and agreement between the protagonists whilst also being the medium of the work. In this way it facilitates reflection upon the legal (e.g. contractual) social and economic relations that govern art’s mediation. It is understandable, then, why the contract should attract artists associated with so-called “Neo-Institutional Critique” like Andrea Fraser who wish to uncover and analyze these relations as well as artists like Magid who also want to engage with these relations in a more ambiguous way.
Second, and linked to the above, there is the contract’s performativity. Contracts are legally binding agreements in which two or more parties mutually promise to perform certain actions in the future, which are characteristically encoded in the form of impersonal instructions within the legal document: i.e. party x shall do this and party y shall do that. Legal promises are special instances of what JL Austin describes as the “performative” (speech acts which act upon the world rather than describe it) governed by the potential coercion of legal sanctions for their breach, for example, damages and enforced performance. The attraction of the “binding” nature of contractual promises to artists is clear: the contract conditions future action, prescribing, like many earlier Conceptual instruction-based works (think of Vito Acconci or On Kawara), the actions the parties must perform.
This notion of performativity is central to the practice of Carey Young whose work perhaps most explicitly engages with legal discourse. In Declared Void (2005) at the Paula Cooper Gallery, New York, the artist invited members of the public to enter into a corner zone of the gallery and thereby remove themselves from the jurisdiction and protection of the US constitution. A legal fiction, Young’s work asks where legal territories apply and where laws and human rights are enforceable, a particularly pressing question in the context of Guantanamo Bay, where the US constitution was deemed by officials of the US state not to apply in the torture of Al-Qaeda suspects. Legal perfomativity, however, can also have its Utopian aspects. In its Social Contract (2010), the Danish artist collective Superflex imprinted on the side of a building in Zurich an imaginary, unexecuted contract between the building’s inhabitants and the rest of the world in which the inhabitants agree to significantly reduce their level of energy consumption. In this work, Superflex refer to the normative model of the social contract used in 18th century political discourse and revived by the welfare liberal theorist, John Rawls to imagine a just society and legitimate state.
Third, there is the mode and authority of legal discourse itself. As Benjamin Buchloh encapsulated in his famous phrase, “the administration of aesthetics”, Conceptual artists and their descendants can be described as bureau-philes fascinated by bureaucratic forms and procedures (without generally working in offices!). In the 1960s, Conceptual artists began to flirt with the law’s impersonal language for its exclusion of aesthetic content, allowing it to infiltrate their work. Consider Robert Morris’ Document (1963)—a typed and notarized statement on a sheet of paper containing Morris’ famous Statement of Aesthetic Withdrawal in which he denied that another work by him—a sheet of lead—entitled Litanies (1963)(purchased by Philip Johnson but not paid for) had aesthetic content. Carey Young’s Disclaimer (2005), updates Morris’ Document – merging the contractual form of the exclusion clause or disclaimer with the work (presented in the form of three black texts on white panels) to disclaim that the “work” has aesthetic content or market value or can necessarily be accessed.
Fourth, there is value: contracts are mechanisms for producing and exchanging value. Characteristically, it is money which is exchanged in a contract in return for particular goods or services. Contracts often invite speculation as to how an act of exchange might unfold over time, in particular how value might shift in favour of one party rather than the other. Contracts also carry with them the risk of failure, that the contract may not be completed or performed as the parties intended.
Of course, there are many precedents for artists using contracts to reflect on economic transactions and to speculate about value (including that of the artwork). There is for example, Marcel Duchamp’s “rectified” ready-made Monte Carlo Bond (1924). Here Duchamp created a hybrid of an artwork and a bond to be supposedly issued to the public through a stock company established by him. The purpose of the bonds was to encourage investment in a financial system for playing roulette. In Duchamp’s readymade the value of the bond (only 8 were ever issued) is played against the value of the artwork. There are also Yves Klein’s ceremonial sales of pictorial zones of immateriality (1959-1962), in which Klein would offer buyers zones of empty space in exchange for gold so that they could experience the Void. Issuing certificates (in the form of cheque receipts) in return for this gold, Klein plays with notions of ownership (the legal framing the immaterial) and of value.
Yet it is perhaps the notion of the life of the artist being inserted into the exchange (as opposed to the work itself) that distinguishes more recent artworks involving contracts from their earlier precursors. This is seen for example, in Santiago Sierra’s project, Death Counter (2009). Here the artist loaned the eponymous sculpture (a neon counter counting in real time, but as a statistical projection the number of people who die globally per second through an entire year) to the insurers and corporate art collector, Hiscox’s, where it was installed on the façade of its London HQ. In exchange, Hiscox’s provided Sierra with life insurance valued at the value of the sculpture loaned. As well as questioning the processes by which life and art are transformed into commodities and assigned value (as risks) in the global market place, the work placed Sierra’s life at the centre of the equation provoking speculation as to whether he would live or die during the loan period.
There are important differences between the contract of aesthetics and the aesthetics of the contract. If the Artist’s Contract was designed to empower artists and positively change economic relations in the art world, contract-based works seem to rarely offer such glimpses of social transformation. Instead their function might be described as reflexive, providing us with knowledge (often negatively) of the context and contradictions in which art is inscribed under capitalism.
What do artists tell us about the law and its operation in their contract- based works? In many such works there is a deconstructive moment, as they operate on the borders of legal intelligibility, playfully destabilizing the order and rationality of the contractual form whilst retaining its performative shell. This tendency is reflected, for example, in the construction of contracts which are legally “void” or impossible to enforce: think of Andrea Fraser’s sex contract or Superflex’s Corruption Contract (2009) in which the purchaser of the contract/work is obliged to engage in a list of corrupt activities, including bribery and extortion.
Other contracts lead to absurd results even if they are legally possible. In Etienne Chambaud’s exhibition The Siren’s Stage held in three parts at the David Roberts, Kadist and Nomas Foundations (2010), the artist displayed legal documentation (including a contract, certificate of authenticity and notarized declaration) in the absence of an invisible sealed artwork (itself a papier-mache copy) held in storage at each venue. Framing the conditions of the invisible artwork whilst also representing its existence (past, present and future), Chambaud’s work dealt with the ontological conditions of art as articulated through law and invoked the figure and authority of the law as an impartial “witness” whilst querying its pretensions to truth: can we really rely upon the law to guarantee the existence of this absurd, invisible sculpture?
Yet, just as the contract is de-stablised, the possibility for other ethical understandings of agreements emerge. In Auto Portrait Pending (2005), Jill Magid also created a “preamble” to her contract with Life Gem in which she poetically releases the diamond company of any legal liability to her or to her heirs. Mirroring yet also displacing the exclusion clauses contained in Life Gem’s standard terms and conditions, Magid’s preamble is a plea for trust and responsibility. In one sense, Magid exposes a contradiction that lies at the heart of contract law, that just as contracts express the aspiration that the parties will carry out their promises, they also work in the opposite direction, containing exclusions or limitations of responsibility. In another sense, Magid offers a provisional route out of this aporia by revealing how agreements are and must ultimately be based upon values of responsibility and trust rather than upon legal sanctions.
 For an online version of The Artist’s Contract courtesy of the Stichting Egress Foundation established by Seth Siegelaub, see: http://primaryinformation.org/files/english.pdf
 Maria Eichhorn, The Artist’s Contract, Walter Konig, Koln, 2009, esp. pp. 67-81.
 Alexander Alberro, Conceptual Art and the Politics of Publicity, MIT Press, Cambridge MA, 2003, p. 169.
 John Austin, How to Do Things With Words, Oxford, Clarendon, 1962.
 John Rawls, A Theory of Justice, Oxford University Press, 1972.
 Costas Douzinas, The Aesthetics of Law, re-printed in The Trials of Art (ed. Daniel McClean), Ridinghouse, London, 2007, pp. 65-83.
Originally published on Mousse 25 (September–October 2010)