Issue 133

Art After Property
by Lauren van Haaften-Schick

“Property” is not a term commonly invoked in art, an odd rhetorical absence given the prevalence of appropriation, practices that exploit the fictive quality of authorship via the readymade and ephemeral strategies supplanting objects of art for administrative paperwork. Among artist activists, calls abound for greater control over their works once transferred or sold, yet these desires are rarely named property rights. Where the term “property” does appear, it is often with suspicion or antagonism, leaving the articulation of artists’ interests conflicted, and other desired forms of “ownership” underexplored. Property theory does little better in its account of art. In legal writing, artworks and artistic labour are referenced as examples of unresolvable paradoxes under common law. Art can be revered as a public good, and yet can also run wild as a speculative commodity just like any other form of private property benefitting private interest. Artists participate in the alienation of their work via transfer and sale, and yet they are also granted exceptional legal protections that allow for some continued involvement in its future, rendering them categorically outside of any standard rubric of the relationship between sellers, owners and their things. But perhaps the incommensurability of “art” and “property” reveals more than any clear relationship could. At the very least, their mutually impassioned incompatibility indicates that the fraught ideas of art and of property for either field might lead us towards other frameworks for resisting and reconsidering their accepted norms.

“Art” and “property” are concepts with no clear ontology, no stable definitions and whose fundamental characters are perpetually under dispute, and yet the battles fought over their respective contours keep either institution contained and in motion. As Pierre Bourdieu has demonstrated for art,1 and Bruno Latour for law,2 both fields are tautological, reliant upon their recursive crises of definition, and upon the actors (human and inhuman) who participate in (re)moulding either field. In art, this cycle was established with the avant-garde, when art moved beyond familiar creative forms (i.e. discrete painting) to the inscription of authorship (a signature) on objects and their affirmative placement within art institutions. Once recognized as art, these objects paved the way for Conceptual art’s dematerialized forms, and the self-reflexivity of Institutional Critique. Simultaneously within common law systems, property’s dominant premise expanded beyond the privileging of legal owner’s exclusive interests towards a notion of property as a “bundle of rights” available to owners to claim and alienate as they pleased, detaching the concept of property from anything fixed to instead invite the capacity for transaction and trade. Both processes re-described just what could be considered “art” and what could be considered “property” by stretching the limit of the potential forms that each may be capable of defining, and the extent to which each apparatus (art or law) could be torqued to account for, affirm or subsume those new definitions.

The problem of a tautology of course is that its normative definitions and operations self-reinforce. Responding to the school of thought known as law and economics, and the concept of property as a divisible bundle of rights, J.E. Penner, and Merrill & Smith have contested that we should instead think of property as a right in rem, a fixed right to determine the use and exclusion of an owned thing, good against all other people.3 Despite this call to return to the most static of property concepts, we have landed in a rental economy, where the base assumption of consumer activity is that one is a licensor, only temporarily possessing anything they acquire. The exclusivity of property owners’ rights has strengthened, while the potential of property for commoditization and alienability has expanded: we no longer own things, but purchase the temporary right to use them. In art, despite the prevalence of ephemerality and the relational, the normative expectation of material transfer of an end product still dominates. As Lucy R. Lippard, Benjamin Buchloh and others have argued,4 Conceptual art and similar practices did not result in the emancipatory eradication of the commodity-object of art, but replaced it with administrative techniques designed to reinforce the assertion of a conventional property and financial interest, made legible through the inscription of a signature upon a certificate of authenticity or contract, and producing artifactual remnants ripe and ready for display, transfer and alienation.5

But the persistent absence of the word “property” in art discourse, and the curiosity that art poses to law, indicate that there is something else going on that clearly cannot be contained within the language of property, contract, commodity and alienation as these terms normatively function within art and law. Could their tensions demonstrate that much more complex and unclear negotiations are already in place? And how might relations around this peculiar thing called “art” engender other ways of thinking about “property,” and vice versa?

Perhaps, as Nicholas Blomley and Joan Kee have proposed, we might consider the complex negotiations within other sites, such as the boundary, as a more fruitful location to consider how else an idea of property might manifest once we cease relying upon its normative definitions and forms.6 Boundaries are the locus of the mediation of interests, and the behaviours of those navigating it – adherence, violation or testing the limits – are symptomatic of the contexts from which they emerge and in which they reside. Boundaries are also necessarily social: they constitute or indicate the enclosure around a community connected by an interest in the life of a space or thing, and they are the site where the relational negotiations of property take place. Here, “property” can be considered as an “effect” produced through a particular set of relations to things, ideas and practices, “performed” into being through arrangements, classifications, pronouncements and enacted differently depending on context. In this complex model, any normative sense of property is replaced by the relations and negotiations upon which property’s recognition depends.

This characterization of property as an effect of relation and mediation resembles the “contingency” of contemporary art, to borrow Martha Buskirk’s phrase, wherein the factors that a work is contingent upon, including walls, collectors, fabricators, et cetera, can be said to constitute the work; so that the artist’s will for how their work should be realized, owned, used and the sustained negotiations required for fulfilling those terms are inseparable conceptual and material elements of the work itself.7 This does not describe a kind of “property” that is easily discernable as a static thing that one can point to, proclaiming its owner’s rights against the world, nor indicating separable aspects. Instead, the contingent object of contemporary art is wholly dependent upon the accompanying conditions that communicate how or what is to be owned and what that entails. What if we ceased referring to such works of art only as things, and expanded our framework to also account for their total systems and effects, and the points of negotiation that constitute the community that recognizes them, and in which that community finds self-identification in turn? By embracing the fact that such works do not resemble normative forms of property, we find other ways of thinking through the model of the continually negotiated idea of property in art.

Applying this lens to Conceptual art strategies, we might begin by recalling Sol Lewitt’s complex triangulation of certificate of authenticity, instructions and diagram, and physical execution of a wall drawing – all of which comprise the cogs of the machine that does not simply make the work, but which make up its entire apparatus. If accounted for as a whole, where the relational infrastructure and resultant drawing are understood as always dependent on one another, the question of what constitutes the work as “property” fades away in favour of a more complex configuration that still evades any existing rubric, and which, despite the work’s ability to be alienated as a commodity, still proposes that a complex design balancing author, keeper and executor is safely in place. Or consider the work of Félix González-Torres, whose installations of timelines marking personal and political events, precisely measured piles of candy, paper stacks and other ephemeral arrangements depend on an intensive relationship of maintenance on the part of their collector or exhibitor, who are required to continually keep a work at a corresponding body weight as visitors take its elements away, or to add their own important dates to the artist’s compiled timeline. The terms of these pieces are stipulated in a certificate of authenticity, but underpinning González-Torres’ agreements is a mandate that the work remain “relevant.” This mandate means that it must be updated and adjusted to suit the needs of the moment of its exhibition, the contingencies of a new historic moment, and the priorities of its exhibitor, binding the presenter of the work in the position of collaborator by virtue of the artist’s intimate request for the work’s continued care.

While these examples propose that the space of mediation delimit the work, there is still an item (document or object) that is exchanged, and to which the work’s negotiated presence is bound. What of practices that effectively eviscerate the possibility of commodification, material acquisition or alienation altogether? What happens when a work is not an object but a boundary, circulates as rumour, self-destructs or ends with a personal exchange? Configurations like these do not describe any discernable kind of “property,” for they leave nothing but a point of negotiation. Where property is erased, what remains for us to own? And how might we begin to identify what else can be owned if ownership is detached from “property”?

Fulfilling to its furthest limit the posit of “process over product” that emerged with Conceptual art’s dictum of dematerialization, Charles Simonds’ Dwellings insist upon the means becoming an end in themselves, so that what is produced is merely a conduit for propelling a chain of immaterial exchange. Simonds’ Dwellings are a series of carefully crafted miniature clay structures the artist has installed in public places since 1970. Tucked away in gutters, windowsills, cracked façades and hidden stairwells, they are discovered only when happened upon by a passing glance in the right direction in the right moment. Or one might find the artist in the act of making, painstakingly modelling and fitting each tiny brick into place in a process of deep focus and meditation that can take hours or days. An audience of onlookers often gathers, engrossed in Simonds’ singular dedication and sharing in the meditation of his slow, intentioned labour.

Fragile and fleeting, most of Simonds’ Dwellings are designed with their inevitable decay in mind; they are understood by the artist as physically and conceptually “self-destructing” if someone attempts to remove them, so that the work can never be owned nor transferred exclusively, but lives on by way of shared encounter and memory alone. The act of making a Dwelling results in no thing but is a personally transformative and community-forming act, underpinned by an insistence on marking the difference between what can be materially transferred, and meaning, which can be transferred without possessing the object in any way.8 The generosity of this act is not without limit, for there are clear boundaries around the way Simonds’ works may or may not be consumed and used. Dwellings cannot be collected or sold, nor can they even be removed from their site of making, for to do so would result in the literal dissolving of their physical form, and would be in total violation of their intended mode of existence. Few Dwellings have been documented, and where photographs do exist they are often taken casually by friends or by people Simonds’ has encountered while making a work. Simonds has also created, exhibited and sold discreet sculptures that employ the same materials and fabrication techniques as Dwellings, but these are held distinct by virtue of the very different temporal, presentational and exchange relations they anticipate and engender. In the case of a group of Dwellings in the stairwell of what is now the Met Breuer and on the windowsill and roof of a bank building across the street, their placement at the architectural margins renders them as indexes of a greater gesture against rarefication, eluding subsumption by the privileged institutions of art and high commerce; what seems a contradiction is instead an invitation to find and imagine other Dwellings in their natural habitat – the city – welcoming viewers to come commune with one another, the work and the place where they live. In Simonds’ insistence that Dwellings privilege a communal public realm, and are not to be removed from it, there persists an intention for how they should be owned, though it does not resemble any normative sense of property and ownership as we generally consider those terms. The only artifact that can be owned is the experience of one’s encounter with the work, logged in memory and able to be recalled and reflected upon over the course of one’s life, transferred only as rumour, or by virtue of the transformation that has occurred in the individual as they carry their experience forward. Here the evasion of property norms defends a different idea of ownership: that we can own experience without owning any thing is an end in itself.

Whereas Simonds’ Dwellings obviate the spectre of any normative property relation, Kenneth Pietrobono’s Easement (Vermont I) (2016) performs this logic in order to reveal the limitations in the kinds of relations concerning property that can be recognized under law. The project hinged on a relationship of trust between the artist and a landowner wherein the artist was granted the temporary right to access, research, use and modify a section of privately-held land. Through these negotiations, a range of legal and interpersonal limits were tested: how much trust could be contracted, how much ownership one party would be willing to give and the other to take, whether a state of property “non-ownership” could be attained and whether the addition of the artist’s labour and his authorship could produce a legally valid claim of land ownership for himself. Under local laws where the piece was executed, small-scale land partitioning is not allowed, a state of “non-ownership” is impossible and despite the labour that the artist had – in Lockean terms – mixed with, or imparted into the soil, no ownership claim by him could be recognized without the owners’ abdication of theirs, so that whatever was produced through Pietrobono’s effort remains vulnerable to the will of the landowner. The artist and landowners signed an easement agreement to acknowledge his use of their land, but only after a personal relationship was established. At the conclusion of the easement’s term, it was left to the landowners to decide whether the work should continue, further affirming the work’s legal and material contingency upon the relational permission of the property holders. The agreement was not extended, so that the termination of the original contract marks the end of the project.

Easement (Vermont I) had at its core a consideration of what was  possible  to realize within a property exchange that took the form of an artwork. Materials remaining from the project include Pietrobono’s request to execute this work on the property owners’ land, a paper trail of legal procedure, the easement agreement, photographs of the artist digging an 8 × 3-foot plot in their ground, dirt-stained t-shirts, bags of soil and stone from the site and a subsequent form marking the work’s termination. These artifacts and documentation of the labour imparted and of the exchange that occurred have since been moved to the status of archive, not to be transmitted as the work itself. What remains as the artwork is not this collection of indexical artifacts, but the relationship that had to be developed between Pietrobono and the property owners with whom he collaborated, as well as the work’s contingency upon all parties’ mutual trust, and the revelation that the project more appropriately exist only as internal and felt relations. The entanglement of property relations that catalyzed the work and enabled its labour, and which now exist as archive, are kept discrete. Here, the relationship is the work.9 Crucially, this is the aspect of the project that will forever remain intangible and ephemeral, and which can only ever be immaterial, despite the paperwork that documents it. For a relationship, as Pietrobono sees it – as an embodied and emotional form – is the aspect of experience which is fundamentally and always outside of that which can be alienable. These are the elements of exchange that may never be written in contract, and most importantly, the things that may never be legible nor alienated as property, despite the importance of the relationship to its holders.

Both these works begin to sketch out another way of privileging ownership outside of normative property definitions by emphasizing the fact of a relationship as the manifestation of the work, leaving no option for alienation of it as a good, nor of the artist from their work. In a moment where property ownership is no longer the relation we can expect to have with “things,” asserting ownership in other ways and over other elements can be a transformative act. What is owned in Simonds’ and Pietrobono’s works is that which cannot be accounted for as commodity nor as property, but which can be accounted for in art. That is an important distinction to keep, and which might lead us to other ways of demonstrating what else ownership and the things we can own might be.