By Martha Buskirk, author of Is It Ours? Art, Copyright, and Public Interest

This guest post is part of our #CAA2021 conference series. Visit our virtual exhibit to learn more.

What’s art, and who decides? Some might say this is a question best left to the theoreticians, yet often there are real, material interests in play.

For a recent Nick Cave work, it was the zoning board in Kinderhook, New York, that apparently had the final say. In February 2021, they voted that a colossal rendition of the words “Truth Be Told” on the exterior of Jack Shainman’s upstate gallery venue was indeed art. As such, it was a form of political speech protected by the First Amendment rather than unauthorized commercial signage that could be fined to the tune of $200 per day. Both Cave and his gallery insisted it was art all along, but they received crucial support from Shainman’s lawyer as well as thousands who signed a petition drive. The opposition was led by a local code enforcement officer and the town mayor. Because the wheels of bureaucracy often turn slowly, however, the installation had already ended its three-month run when its status was affirmed.

This particular conflict played out too recently to make it into my new book, Is It Ours? Art, Copyright, and Public Interest, but it resonates with many of the examples I write about. The book emerged from my long-term fascination with ways that authorship is not only asserted, but also pursued and enforced. The potential monetary value associated with certain creative gestures is one consideration, but it is hardly the only reason driving a debate over a work’s status.

Below: author Martha Buskirk offers a sneak peek inside Is It Ours?

Artworld machinations around valuable artistic properties often involve customs that are not clearly codified. Because of that, some conventions only become fully evident in moments of conflict, including divergent expectations that wind up as lawsuits. There is also the matter of outright fakes, and what they reveal about the remarkable reverence for how a specific name attaches to a creative act. Many of the disputes are quite esoteric, but the implications can be far-reaching.

Note that I haven’t yet mentioned copyright directly. This legal principle is intertwined with authorship, but not synonymous. Some complexities were already evident in the early history of copyright, when protecting the interests of authors was often cited as a justification for the enactment such laws, even if the money made from this type of property typically wound up in different hands. Recent cases under discussion range from music sampling to tattoos, but copyright matters involving works of art are a central focus. Questions raised by appropriation and quotation are important not only for artists attempting to respond to preexisting images, but for anyone navigating the incessant recirculation of visual material and information of all kinds. 

The fulcrum of Is It Ours? is the intersection of art and copyright. I consider both specialized conventions within the art world and what it means when intellectual property interests permeate daily activities. The pandemic has made many of these issues even more pressing, increasing our reliance on digital platforms where communication and commerce are inextricably linked. It’s a continued reminder that we all should pay close attention to assertions of property rights in creative expressions given their profound impact on artistic production, scholarship, and everyday life.