Art and Law

74 75Mid (noveMber 2013 – january 2014)

The art world is complex. It is full of intrigue and gossip. Money, murky speculations and potential conflicts abound. Perhaps the law could make

the art world more transparent and predictable? However, it is important to realize that due to ongoing rampant corruption in Indonesia, which has created a situation of legal uncertainty, those involved in the arts try to steer away from legal institutes if possible – even if they can afford to hire a lawyer.

With these issues in mind, the Visual Art Study Program of ITB’s Faculty of Art and Design, along with Roma Arts, organized a two-day seminar on art and law from October 4 to 5, 2013 to raise awareness of legal issues in the arts.

Mariska J. van Zelst-de Wit, LL.M, was the main speaker. She is from Amsterdam, the Netherlands, where she studied law at the University of Amsterdam, and she is legal advisor for collections at the Rijksmuseum, Amsterdam (www.rijksmuseum.nl). The Rijksmuseum is the largest museum in the Netherlands with a collection of around one million objects. Even though the museum is housed in a large, newly renovated and recently reopened building, only 8,000 objects can be on display at

In early October, Roma Arts and ITB’s Faculty of Art and Design, organized a two-day seminar on art and law. Mariska J. van Zelst-de Wit used the opportunities to widen horizons regarding freedom of expression, copyright and contracts.

Art and LawRoy VoRagen

Hongkong Spring 2011 Sale 2853 Lot 1024

Zeng Fanzhi Self-Portrait (2)

http://cshk.myftp.org

diScourSeDiany given time. The Rijksmuseum started digitizing its collection and so far 125,000 objects have been made digitally available. All images are in high resolution and can be downloaded free as these works are no longer copyrighted.

As the Netherlands was once a colonial power, many objects in the collection of the Rijksmuseum come from former colonies, including Indonesia. The question that needs to be raised is whether these objects are legally (and morally) in the possession of the rightful owner or whether they should be returned to the former colonies. But perhaps we should postpone answering that question until Indonesia has shown it can actually run a public museum where these objects would be safe – from the effects of the climate, such as humidity, as well as looting – as most public museums in Indonesia are in a dire state.

Unfortunately, neither collectors nor commercial gallerists attended the seminar. They were invited, though, and unfortunately they offered no reason for their absence. Hence one party in (potential) legal conflicts was not in attendance – I certainly hope it was not because they don’t want certain issues to be resolved. However, perhaps this was a blessing in disguise as the young members of the audience who attended the seminar – artists, program managers of alternative art spaces and independent curators – could speak their mind freely.

Mariska J. van Zelst-de Wit started by saying: “Art law is about dealing with the legal aspects of making and consuming art and the way art is supposed to be treated; [it aims] to ensure an even balance between the interests of the artists, the public, and the society. [Art law] encompasses all aspects of law that are connected with the creation, exhibition, reproduction, sale and transfer of property of works of art … It traverses many legal areas, such as intellectual property rights, commercial law, contract law, criminal law and administrative law.” Art law can thus cover a wide range of topics.

Mariska J. van Zelst-de Wit structured the seminar around three focus areas: freedom of expression, copyright and contracts.

Freedom of expression has been widely discussed in Indonesia, including in the arts, since the nineties. While it is extremely important that artistic expression receives legal guarantees of

protection against arbitrary interference such as censorship, we should not forget that in Indonesia from Guided Democracy to the New Order regimes up to today’s post-Suharto times censorship is not such a ‘top-down’ issue but more of a societal or horizontal issue, for example, arbitrarily conducted by paramilitary youth organizations.

One of the most notorious cases of horizontal censorship in the arts in Indonesia was the 2005 attack by FPI (the Islamic Defenders Front) against the artwork Pinkswing Park by Agus Suwage and Davy Linggar at the CP Biennale. Hoodlums operating under the guise of Islam disrupted the exhibition, and senior curator Jim Supangkat decided to close the artwork that caused the protest from view, after which other participating artists decided to remove their works, effectively closing the biennale. It has never been held since.

One must wonder about the impact of this event on Indonesian artists’ freedom of expression since 2005. They are aware that there is little or no support from lawmakers and law enforcers when others in society take the law into their own hands. Does this cause our artists in Indonesia to self-censor? The post-Suharto amended constitution is clear about the freedom of expression, which means fairly little if it is not a part of the country’s socio-political culture and when the powers that be are unwilling to take an explicit stand. In addition to this, the amended constitution is further contradicted by the recent anti-pornography law, which is open to many different interpretations and therefore creates an ever-more uncertain situation.

Mariska J. van Zelst-de Wit

courtesy of the writer

76 77Mid (noveMber 2013 – january 2014)

diScourSe

AguS_SuWAge and dAvy LinggArPinkswing Park, 2005digital print on paper and stone

http://dejeka.wz.cz-davy-linggar

A system of copyright offers a further way to protect artistic expression, besides provision of constitutional guarantee. Copyright can protect the tangible expression of ideas. When ideas are given tangible forms and credited to an author or authors they can be protected by copyright. Copyright ensures the integrity of author(s) and their authority to decide what to do with their works. In Indonesia, this right remains with the heirs or trustees of the author(s) for up to fifty years after death.

Criteria for works to be protected by copyright are the moment of creation; something original that needs to be expressed; the need to be expressed must be able to be viewed in a tangible form – i.e. the work needs to be physical and visible; the expression needs to be human-made; and the expression does not need to be published. No formal registration is needed – in the case of a painting the artist’s signature and date are sufficient – and the work does not need to be finished. Of course, there are grey areas: conceptual art, performance art, sound art, Internet art, appropriation, etc., still pose all sorts of legal issues.

Copyright – and the law in general – do not offer a standard of quality. Matters of aesthetic and moral taste and the historical relevance of the art are of no concern to the law. Thus, originality is not related to aesthetics, and historical art has no particular importance to the law. Unfortunately, matters of morality may, through (for example) the anti-pornography law, be legally decided and this influences freedom of artistic expression in Indonesia.

In principle, the creator is legally considered the author of a work unless a work contract states differently. Many (Indonesian) artists work with assistants without making explicit contracts, but in principle an assistant is not considered the author if she or he merely executes the ideas of the artist.

An author can sell her or his copyright to a third party, but in principle copyright is not transferred when a work is sold, which means that if the copyright is not transferred the buyer cannot do whatever she or he likes with the work without asking permission from the copyright holder (the author or the author’s heirs or trustees), which

might require payment. In a case of reproduction of an artwork in a book or other publication for example this also requires attribution to the artist(s) as well as the author(s). The only exception is in the case of ‘orphan works’ wherein no permission can be requested as the copyright owner cannot be identified or localized.

Even in the case of copyright being acquired, there are things an owner is not allowed to do, protected by moral rights – and there is no time limit to moral rights, which cannot be transferred. It is important to know that ‘moral rights’ are part of the Indonesian law. Moral rights “oppose any distortion, mutilation or other damage to the work that might harm the reputation or good name of the author.” In other words, the owner needs to respect copyrights and moral rights of the original author after purchasing the work. Moral rights not only protect artists (even posthumously) but also culture, which is essentially part of the public domain.

During her public lecture Mariska J. van Zelst-de Wit focused on the author-buyer relationship regarding copyright and moral rights. During the workshop the case of appropriation art was also discussed in the light of the issue of copyright.

Theo Frids Hutabarat (http://theofrids.carbonmade.com/), a young ITB artist, was present during the workshop and he was willing to show some images of his recent works that were later exhibited at ArtSphere gallery in Jakarta. In his recent paintings he clearly took his inspiration from a number of well-known paintings from Western art history. Because the law cannot rule on aesthetic taste and historical relevance of the art – although we can pose the question whether these works are interesting or not, that should not be a legal question – rulings could appear to be arbitrary. In one case it could be considered a copyright infringement and in other contexts such appropriation would be allowed legally. Obviously, moving works of appropriated art abroad to an art fair in Hong Kong or Singapore and increasing their visibility globally, will increase the possibility of legal problems. In Indonesia collectors, galleries and artists seem to care little for this issue; so legal problems may not arise as long as such works of ‘appropriated art’ stay within Indonesia.

Lastly, contracts were discussed. Contracts can be useful when works of art are sold; when dealing

with galleries and agencies; as exhibition agreements; in dealing with commission assignments of public and private art; and in cases of copyright licensing.

Mariska J. van Zelst-de Wit offered three basic rules for a good contract: balancing

the content, completeness and plain language. Something artists sometimes seem to forget, but a contract is between two (or more) parties, so artists should not only understand what the contract says, they have a say in what the contract states. After all, a contract is mutually binding and therefore all involved parties should agree to it.

During the workshop one contract of an actual art event was discussed and the lawyers in the room had some input. First of all, a contract in which at least one of the parties is Indonesian should be written in Indonesian otherwise it will be rendered null and void by Indonesian law. They also commented that the particular contract discussed did not show what sanctions would apply in the case that one of the parties did not deliver their part (for example: that party should pay a fine of a certain value). However, this could make future collaboration rather difficult, as the art world in Indonesia is small and based on ongoing improvisation.

It seems that many (young) artists have too little awareness of the importance of contracts. It remains a question why that is so. Could it be due to carelessness or laziness, a (perceived) power imbalance between galleries and collectors on one side and young artists on the other, a realization that one will have to work again together in the future, or cultural attitudes that go against speaking up?

All in all, the seminar was perceived as being valuable for the awareness it stimulated, although some topics discussed seemed to be common sense to me. Also, due to time constraints, some topics were barely touched upon, for example the recent cases of alleged forgery of master artworks in Indonesia.

The law can offer useful tools to the complexities in the arts. However, it is obviously not a panacea to all problems and it is not an alternative to trust, which is required to make art-related events possible – keeping in mind that the growing arts infrastructure in Indonesia is very much an ongoing, grass-roots project.