Notre Dame 2010 Creativity and the Law Symposium panel 3

(panel 2 later when I have written up my notes)

Panel Three, Dan Kelly – Moderator

David Galenson, Market Structure and Innovation: The Case of Modern Art

Most art historians have not recognized some key determinants: the dominant story is that modern art destroyed the idea of dominant styles/coherence in the 60s/70s. But this was a logical extension of practices that began in the late 19th/early 20th century.

A change took place in theory and practice of art. Art historian: Western art underwent a transition, in which works of art need not represent natural objects/events—art is not necessarily concerned with representation but with expression of human experience. Cubism in first decade of 20th century: artistic reality can be something other than the conventional visual image fixed as the “true” representation of an actual object in physical space.

But why did this happen? Art historians don’t have good explanations, even though we have a lot of evidence about 19th century Paris. Monopoly of the Salon was destroyed: the public had other ways of finding out about new art. But independent galleries didn’t grow large enough to create a genuinely competitive market until early 20th century. Investors began to perceive that Impressionists and Post-Impressionists were increasing in value. By 1910, critic observed that individual exhibitions weakened the effect of the large annual Salon. Over time, individual exhibitions replaced group ones.

First artist to gain prominence through galleries: Picasso. Deliberately used work to cultivate dealers who could sell his art and promote him: executed 9 portraits of dealers and a 10th’s wife in his early years. Once he had a market, he could make whatever he chose, a new freedom. Became the model for other artists like Matisse, who benefited from competition between independent galleries.

The significance: innovation is the hallmark of important art, but from the Renaissance on artists had to satisfy powerful patrons or institutions. Overthrow of Salon created an opportunity to innovate and compete by removing the constraint of patronage.

What did artists do with their freedom? Experimental and conceptual innovators. Experimental: seek to record impressions, pursuing imprecise goals; spend their careers pursuing a single objective; innovations emerge piecemeal as they explore. Conceptual: pursue ideas; innovations are sudden and differ from their own previous work as well as from others’. Experimental innovations tend to arise late in life; conceptual innovations come earlier because habits of thought are not as fixed. There’s a persistent belief in the art world in conspiracies: artistic importance can be manufactured by dealers and curators. But unless this leads to influence on other artists, that can’t be important to art history. He insists that innovation is demonstrated by influence on later artists.

For centuries, neither type of artist dominated. This changed as a result of the changed market structure: innovations no longer had to be acceptable to patrons. Greater freedom: artistic innovations only had to appeal to fellow artists; could be more radical, transgressive. Decided advantage to young conceptual innovators.

Why do some modern artists work in so many styles they appear to have no style at all? E.g., Murakami. Stylistic versatility is a pattern tracing from Picasso. Changes also in the substance of art—Picasso glued fabric to a canvas, violating a convention that nothing other than paint should be placed on a 2-D surface. Collage was immediately recognized as an important innovation—quickly resulted in counter-relief, Readymades, and so on. Resulting Balkanization of modern art continues now.

Use of language in visual art: many artists like Jenny Holzer make art out of language; began with Braque stencilling letters on paintings in 1911. Intentional provocation of debate over whether work is serious or a joke: Damien Hirsh, Jeff Koons. Artists who have work executed entirely by other people: highlighting the role of the concept. Artists have begun coauthoring all their work. Open embrace of market (artists have always worked for money, but weren’t supposed to say so); Damien Hirst is probably the wealthiest artist.

Jessica Silbey, Inspired Beginnings and “Work Makes Work”: Two Stages in the Creative Process of Artists and Innovators

Summary of book project based on interviews with creators and people working with creators. Language used by artists and their lawyers: they talk about serendipity. IP intervenes along the chain of creativity towards commercialization, but not at the beginning of creation.

Face to face interviews with artists, musicians, sculptors, in-house and external counsel, music agents, etc. Snowball sample. Ask them how they started their work, what they love, what’s hard, disputes they’ve had. Get a sense of their attitudes about what they own.

4 categories of language used to describe beginnings: serendipity and luck; intrinsic or natural forces compelling them to make something; play and pleasure, experimentation; need or urgency. A-ha moment of serendipity comes out of seeing and realizing that something is a creative work; unconscious but inevitable discovery. Other reasons than property entitlements are given for beginning work; law appears absent as an instigator.

Further question: is law really absent? IP is, but there are employment relations, implied/express contracts, financing arrangements in the background structuring what goes on. If we care about artists and inventors, maybe IP law shouldn’t be our focus.

Work: what keeps artists working every day? The time and space involved; work has rhythm and propulsion. They’re nesters: where they work matters to how they work. This takes a lot of time, but flexibility is really important—it can’t be a punch clock. “Work makes work”: when you’re working, you’re in the zone. Working hard is more important than what is produced. Pride in labor: the value of putting work in, the way Locke argues. Real and personal property language does play a role. Mix your labor and create something of value: talk about harvesting, fishing (some days you catch something good and other days you don’t), seeding, bricklaying. Plagiarism is standing on someone else’s “scaffolding,” patents are “chits” for trading, breaching DRM is “shoplifting,” etc.—metaphors for tangible property.

Surprises: infrequent use of possessive terms like “mine” or “taking.” Rarely discuss desire to fully control their output despite real property language. When they talk about possession is where reputation or attribution is at issue, even though IP law doesn’t protect against misattribution or blocking patents.

Property talk assigns value where the artists want it to be: inherent justification for ownership. Implications: beginnings are spontaneous and lucky; value of work is time and labor; this is not IP talk.

Variations do exist. Firms (and those who represent firms) think more in terms of incentives than individuals do. So, should IP law focus more on firms than authors or inventors? IP could be a tool for exploiting the copy instead of incentivizing initial creation—duration could extend; fair use could collapse; patent ownership could default to the firm—but these are all terrible ideas. If we do care about individual artist/creators, think about regulating the relationship between creators and intermediaries. They want a stable income—patronage—they don’t care about royalties so much as about making a living; don’t have a very high risk tolerance.

Is IP right in ways that matter, even if it doesn’t map onto the ways in which works are generated?

Roberta Rosenthal Kwall, Creativity and Cultural Influence in Early Jewish Law

Jewish law as a component of cultural property. Jewish law extends to every aspect of life, including the order in which you put your shoes on and tie them. But how do we apply Jewish law in modernity, where we place a tremendous value on autonomy, customization, etc.? At odds with traditional Jewish worldview; threatens the survival of Jewish law. More liberal sectors of Judaism are making decisions that are arguably outside the boundaries of the tradition; more conservative are manifesting rigidity that is completely inconsistent with the tradition of flexibility—compare to Arewa’s discussion of sacralization.

Creativity in the development of Jewish law in the earliest periods. Early-CE Jewish society was heavily influenced by Hellenistic tradition. Model: discontinuity within the confines of continuity—new factors/traditions have always been embraced but reworked and remixed to make it appear as if the Jewish tradition was seamless. Compare to Tushnet: one of the most important challenges to Jewish law right now involves women. Although you can’t throw the baby out with the bathwater, the bathwater is really dirty. How do we negotiate/develop changes to allow women to have a voice and still be part of the tradition, approaching the tradition with love and a sympathetic reading while still requiring evolution and change to accommodate modernity?

Jewish law itself is a product of contestation within the culture. There is both written and oral law (the latter of which is also written down!). Written: vertical paradigm, G-d appearing to Moses on Mt. Sinai and handing down the written law. In addition, G-d also gave to Moses, according to the tradition, the oral law. Provides explanations and elaborations of the written law. Part of the oral law is steeped in the same vertical paradigm of dictation from G-d, but a part of the oral law is not vertical but horizontal: the development of the oral law is to be done by the sages in every generation. The sages are equal to each other.

Two major centers of Jewish learning in early CE: Palestine/Hellenistic; Babylon/more independence from their hosts. Oral law began to grow, along with persecutions of the Jews; created felt need to write the oral law down. Knowledge curation as per Madison. 3 main documents: Mishnah, 200 CE in Palestine; nuts and bolts rendition of the law, meant to be memorized quickly because it was oral. 200 years later, in Palestine, the Jerusalem Talmud. 100 years after that, the Babylonian Talmud was redacted: the central book of life in Jewish law, overtaking the Jerusalem Talmud. There was back and forth between the sages, so there are similarities in the documents.

Picking and choosing from the past is a part of the development of the law—resembles the earlier discussion of creative practice. Early rabbis followed Pharasaic tradition: anybody who was educated/knew the law could be a sage (though this was really any man)—you could be from a lowly family. Democratic ideal; borrowed from Platonic concept of education. Passover Seder: the paschal sacrifice was the key to the ritual in Exodus—changed after the destruction of the Second Temple, after which the sacrifice was impossible. Rabbis had to invent a different ritual; looked to Greco-Roman tradition of discourse and what became important was telling the story of the Exodus.

Essential ingredient in preservation of Jewish law: In civil law matters, the law of the land is the law.

What to do going forward? Consider the historic boundaries of Jewish law and where there is wiggle room to put the discontinuous within the body of the continuous.

Fromer for Galenson: how much are these findings limited to art itself versus literary or other realms?

Galenson: for virtually every intellectual activity—we live in a conceptual world. Since the Renaissance there’s been this misconception that creativity was the domain of the young, wisdom of the old. Increasing emphasis on deliberate, conspicuous, transgressive innovation, but we ignore the experimentalism that goes on. We live in a conceptual world because that’s what we think we live in.