This interview was originally posted on October 24, 2009.

This interview concerns Patry’s recent book, Moral Panics and the Copyright Wars, as well as questions concerning copyright and its recent developments. Patry was previously copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, and a Policy Planning Advisor to the Register of Copyrights; a full-time professor at the Cardozo School of Law; and a practicing copyright lawyer. Patry is now Senior Copyright counsel at Google Inc. He is also the author of an eight-volume, 6500-page treatise, Patry on Copyright, a separate treatise on fair use and many law review articles. This interview took place between September 14, 2009 and October 7, 2009, via e-mail exchanges between Clancco’s Sergio Muñoz Sarmiento and William Patry.

SMS: Bill, thank you so much for agreeing to this interview with Clancco.com. We’re very excited about this opportunity and ongoing dialogue with you. For the benefit of our readers, can you tell us a bit about your background and how you became interested–and involved–in copyright law.

WP: Thanks so much Sergio for giving me the chance to talk to you and your readers. It is a great honor. I first became interested in copyright law in law school. At the university, my graduate and undergraduate degrees were in music. Music is still my true love aside from my 8 year old twins Yonah and Margalit, who are my greatest joy in life. I still play clarinet. In law school there were lots of classes on different subjects: torts, property law, labor law, constitutional law, but none of them spoke to my passions like copyright law did since copyright law touches so directly on what creative people, including musicians, do.

SMS: Given the fair amount of information available on copyright and copyright law (including the internet), can you tell us anything that is usually misinterpreted about these two doctrines?

WP: I think it is not so always a question of misinterpretation or misunderstanding, but a difference of opinion about the purposes of copyright. At the individual level, these are differences people feel passionately about. My only regret, and this is what much of my book is about, is that in the case of corporations, what are business issues are misdescribed as moral issues, when in fact they are economic issues. I think we will reach better economic results if we discuss economic issues honestly.

SMS: How has the internet affected copyright and fair use, particularly in the visual arts arena? Can you give us one example?

WP: On example is what search engines do, namely return thumbnail images of visual images in response to a citizen’s search query. Visual images are treated as another form of information, and in the search arena they are just that. This doesn’t mean they are of lesser importance; to the contrary, one of the amazing aspects of the Internet is that with universal search — where search results are returned to citizens according to what is the most relevant, whether text, a visual image, or a video — citizens are provided with information regardless of its form. I think this is fantastic, but it does require us to think in terms of the medium itself and not formalistic thinking such as ‘there can be no copying of an entire work” under fair use. Such thinking was always fatally formalistic even in the hard copy world, but it simply doesn’t hold water in the online environment. if we want the most relevant information, we should be agnostic about the form it takes. As the great English scholar Charles Clark said, “the answer to the machine is in the machine.” The wrong answer is to deny to the machine the wonderful things the machine can do.

SMS: Thank you Bill. Perhaps this is a good time to introduce your new book, Moral Panics and the Copyright Wars, by Oxford University Press, and begin discussing some of the topics. There are fantastic and new approaches to understanding copyright, among them the use of morality and language to shape the socio-political discourse on copyright.

You said earlier that “in the case of corporations, what are business issues are misdescribed as moral issues, when in fact they are economic issues.” Are you saying that morality is used by corporation to incite emotions and fears? Does this “fear factor” help or hurt business? Can you please expand on this?

WP: Yes, I am saying that corporations have used appeals to alleged moral crisis as a basis to achieve political objectives. In February 2003, Jack Valenti gave a speech at Duke University Law School precisely about a moral imperative in copyright. I am giving a rebuttal to that on October 22d at Duke. My book, Moral Panics and the Copyright Wars is a detailed analysis of this phenomenon, which is hardly unique to copyright: the Auto De Fe in Spain and Portugal in the 15th century, the Salem Witch Hunts in early U.S., the McCarthy communist witch hunts, the comic book scares, all involve the same thing: an effort to demonize a perceived enemy for your own gain I think in the end, the use of moral panics in the copyright copyright wars has been very detrimental to the public, and perhaps in the long run to content owners. Content owners aren’t known for long term thinking, though.

SMS: Let’s talk more about this “good” versus “evil” dichotomy and its effects on both corporations and consumers. Why can’t property owners dictate the use of their property if even against their own good or profit. You talk about “folk devils” in your book, but why is it wrong, immoral or, unjust, to label those taking an owner’s property as trespassers or thieves? You also mention that this is an attack on youth culture, but doesn’t today’s pop culture economy show that even if this is true, profits are still lucrative (aside of course from the music industry)?

WP: There are two parts to your question. The first is why can’t property owners do what they want, for good, bad, or no reason? The answer is that property is a social construct. Property is a set of social relationships. Sometimes, we do let those who claim rights to do what they want, sometimes we don’t. Take one’s own body, perhaps the most sacred property. We do let people smoke cigarettes, but require tobacco companies to warn them of the dangers. We don’t let people take heroin though. With copyright, we ordinarily do let the copyright owner decide to license his or her work, but not always: sometimes there are compulsory licenses, and there is fair use, the first sale doctrine, and lots of other uses that are not authorized, but which are legal. The question should be, “what conduct do we want to conduct and what conduct do we want to prohibit?” I don’t see how calling copyright property is at all helpful in answer that question.

The answer to your second question follows from the answer to the first: if we want to prohibit certain conduct, even by youth, then we should, but calling it immoral doesn’t help in making that decision. Too often, it is new business models that are being attacked, and not conduct. I want copyright owners to succeed monetarily, but by satisfying paying consumers, not by thwarting them.

SMS: Thanks Bill. I’m curious, in your previous answer you stated, “what conduct do we want to conduct and what conduct do we want to prohibit?” Did you mean to say, what conduct to we want to ”allow”?

I agree that property has been, is, and will be regulated, but could you please expand a bit more on your definition of property as a set of social constructs? In your book you argue that copyright owners have attempted to avoid regulation by describing copyright as an intellectual property (p. 103), and continue by quoting (and supporting) John Brewer and Susan Staves’ argument that copyright is “relational,” and thus born out of the Social Contract. At the risk of sounding too naive or simplistic, if Blackstone’s definition of property arising out of occupancy and labor is a fiction, and we agree that law in and of itself is a fiction, does this structure of fiction not also apply to your argument of property as relational and for a public benefit, thus making it highly susceptible to critique, weakening its foundation and positing it just as mysterious as Blackstone’s?

I understand your argument that morality and language are mobilized to scare the masses and the courts into granting copyright owners wide and overbroad legal protection, but I’m having difficulty seeing how morality is not simultaneously being used to define copyright as relational, as a set of social constructs, to be employed for the public good in complete denial of any private property rights. Shepard Fairey’s use of the Associated Press’ and Mannie Garcia’s photograph comes to mind.

The public anger over the AP’s lawsuit against Mr. Fairey is strongly buttressed by the content of the photograph. It seems that the public outcry is not about copyright or fair use, but rather about the desire of certain political circles to do what they please with someone else’s property because they have decided, a fortiori, that the use of someone else’s property in this manner is good for the public and in the public interest. I don’t believe the public outcry would be as strong if the image used had been that of Sarah Palin.

WP: Hi Sergio, yes, I meant “what conduct do we want to allow …. ”

On to your question:

I don’t see how describing copyright as a set of social relations is fictional or makes social relations the same thing as Blackstonian property rights. First, in common law countries, the purpose of copyright is utilitarian, to promote the progress of learning, a clearly social goal.. But even in civil law countries, copyright concerns how one person (the author) can act in relation to other persons with respect to a work of cultural and social import. Is that not a social question too?

At the same time. I don’t see how it is accurate to say that “morality is … simultaneously being used to define copyright as relational, as a set of social constructs, to be employed for the public good in complete denial of any private property rights.” First, it is not accurate to say that taking the larger public good into account results in the complete denial of property rights (noting too the loaded use of the term property rights). There is a huge misconception, for example, about fair use in the United States. Fair use certainly takes into account the public interest, but not all and maybe not even most claims of fair use succeed. What I find implicit in the quotation is the view that property rights should always prevail because they are property rights. Where is the morality in that? Regarding copyright as a set of social relations doesn’t imply a moral approach nor does it imply any particular result in any particular case. Instead, it asserts that as a social construct copyright law has to be true to its origins.

SMS: I agree with your assessment and description of copyright as utilitarian and relational, in both common law and civil law countries. My point was more fundamental and philosophical, and thus questioning the moral aspect of the “copyright as social good” model (where morality is seen as a system of obligation and a system detailing right and wrong). I’m wondering why we accept copyright law as utilitarian and relational, thus social, without questioning the foundation(s) on which the legal doctrine of copyright law is founded upon. It would be just as easy to legislate (and judge) copyright primarily a private and individual right, no? Perhaps this is why copyright, as interpreted by creators, users, lawmakers and judges run counter to your proposal that “copyright law … be true to its origins,” no?

Perhaps here you can tell us a bit about why you don’t see copyright as an intellectual property right, and thus a property right (“The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification.” p. 103). You discuss the utilitarian model, the incentive model, and the labor origin model in your book. How do we frame copyright rights under the Patry model?

WP: I don’t regard copyright as a property right, but rather as a government program, a social program. I think all rights though, whatever the label, are social since it is society that creates them and society that enforces them. When we call copyright a private right that’s simply wrong: no author can create a right for him or her self; only the government can do that and the right can only be enforced through government officials. The questions I ask are why do we have these publicly created rights and are we happy with them?

In answering these questions we can’t simply assume the right exists, therefore it is good. Would we say the same thing about a tax? Might we want to rethink whether the tax is still effective? Yes, we would do these things; so why is there such reluctance to go back to first principles with copyright?

SMS: Thanks Bill. I’d like to focus on part of your last comment, “When we call copyright a private right that’s simply wrong: no author can create a right for him or her self; only the government can do that…” I have to admit, this is a bit perplexing, if not troubling. I can see how this would apply to real and personal property, certainly if we start with an agricultural and industrial model, but with copyright aren’t we really talking about an “intellectual” product or asset, which does not have the same limits and characteristics that agriculture or industry has (bananas and oil respectively). This reminds me of the Toffler’s and their description of rival vs. non-rival economies, as well as knowledge based economies, which is where I would situate copyright. I can certainly see why government would push traditional property rights for the social good, but not copyright. There’s nothing keeping me, excluding me, or restraining me from creating the next Bart Simpson, the next Happy Birthday tune, or the next Nike logo. Can you please explain?

WP: I agree that analogies of copyright to real or personal property are inapt, and in fact dangerous for the reason you give: with real property we can see where the property begins and ends and the effects of uses of it (within reason).. Whereas, the effects of expanding copyright are not as tangibly seen.

My point about copyright not being a private right is simply that copyright is created by governments. Unless the government says you have such a right you don’t and the normal free market competition prevails. This is as true, I believe in civil law countries as it is in common law countries. One certainly hears lots and lots of rhetoric about copyright being a natural right in civil law countries, a right that exists independent of any legislative enactment, but I am unaware of any actual copyright infringement suit brought in a civil law country that was not based on a legislative enactment. Copyright in all countries exists because governments enact the right. The reasons they enact the right may vary as does the strength of the rights, but the basic point is the same: copyright is a creation of governments not authors.

SMS: I see your point. Even accepting your proposal of copyright by government fiat, my point was that secondary users (or appropriationists) should have fewer rights with copyright than with real property precisely because their own minds would be able to produce or create their own intellectual property asset without having to “trespass” on the primary author’s copyright asset. I know I step on dangerous ground by using “trespass,” but I use it to make a point. My thinking is that by expanding fair use or diminishing copyright protection (by government or natural right), wouldn’t there be a disincentive to produce at all?

Let’s move on a bit. In your book you also make a poignant and highly critical equation between the Obama administration’s financial bailout of Wall Street and I believe automakers and copyright protection extended to original authors. Can you speak a little about this? It seems a bit odd that the same administration that pushes “relational” and socialist programs is also the one that “bails out” copyright giants. Isn’t Victoria Esquivel’s recent appointment as Copyright Czar just that, more government protection for copyright owners?

WP: I would rather not draw a sharp distinction between creators and users. One of the transformational attributes of the Internet is to make all of us potential creators. The same is true of fair use: fair use is of benefit to all creators, including large corporations.

On the bailout, that was the Bush Administration. My present concern is with a lessening of the recession in some parts of the economy, we are already seeing a reluctance to impose the type of regulation that is necessary to prevent economic chaos. Our memories seem to be not just short, but non-existent.

SMS: Yes, it was Bush of course, but I was also going on your mention (in your book) of the deep recession of 2008 and 2009. The Obama bailouts seem, overall, to mimic the Bush administration’s bailouts. Your point of non-existent memories is one I (and I presume quite many others) share with you, thus my indexing of Esquivel’s appointment and the mention of the Obama administration.

On the note of regulation, or alternative models of regulation, what are your thoughts on Creative Commons?

WP: Creative Commons is a true innovation, one that works to provide alternatives to either overstated rights or no rights. It gives authors the ability to control their rights rather than transfer them all or give them all up because it is too expensive to participate in conventional licensing.

SMS: Having written a book on copyright you obviously had the strong inclination to put your thoughts in writing. How do you see copyright law developing in the U.S., and also abroad, and perhaps more importantly, in which direction would you like to see copyright law develop? I know you have spoken on, and hinted at, this above, but I’m still curious what you would do if you were copyright czar. I trust your book will have a major impact in courts and legislation, but what else would you like to see happen in copyright?

WP: I would like to see copyright return to the U.S. Copyright Act, where we had a shorter term, and formalities, a copyright law that gave copyright owners enough incentives but not too much.

SMS: Are there any last thoughts you’d like to share with visual artists concerning copyright, or any other topic? And lastly, are you amenable to sharing copyright to this interview with Clancco.com?

WP: Hi Sergio, I love visual art, and I want visual artists to prosper. To the extent copyright law should help, it should. But the most help for visual artists would be greater respect for the beauty and truth they bring to the world. I am happy to disclaim all copyright in the interview. I appreciate very much the chance to talk to you and your readers.

I never met Ruben Verdu. This is not quite true. I met him in 1997 in a large warehouse-turned-loft in the then still desolate Willamsburg, Brooklyn. But I didn’t really meet him, because although he appeared for a minute to grab a bite, he was gone before I had time to converse with him. I saw him again atop a Brooklyn roof bar-b-q about a week later, and we spoke for a few minutes.

I then met Ruben again in Williamsburg. But this time I had been in New York for two-years, and yet still hadn’t had a substantial chat with this person I had heard of since my undergraduate days at the University of Texas at El Paso (UTEP).

My interest in his work, and his ideas, stem from the spectral presence of his reputation within this institution, but also from my first introduction to his work, Mater Politica. I recall seeing this “installation” and being compelled to try to understand it. At that time I grappled with objects, texts, and colors that I would eventually come to understand as “signs.” However, I do believe that even if I had had an understanding of semiotics, this particular project would have been elusive particularly because it employed a system that seemed to resist any kind of interpretation.

This interrelation with Ruben’s art perplexed me, because up to this time my work, and most work at UTEP, did not elicit this experience. I remember hearing how this person, Ruben, for he was only known as Ruben, would argue, contradict, expose, debate, and deconstruct the weak underpinnings of our then beloved art instructors. Yet I still lacked an understanding of his work: a waving fake-fur flag dangling from a free-standing industrial fan; text on a wall; and a sound of a humming motor.

It is crucial to understand El Paso, its surroundings, its sister city Juarez, and the fine arts department at UTEP. El Paso and UTEP are comprised of approximately 75% Mexican American citizens, with many Mexican nationals living in both Juarez and El Paso. Juarez, particularly its most desolate and impoverished colonias (shanty towns), are within walking distance of UTEP and its fine arts department. Sights of burning rubber tires, mountains with biblical texts, houses made of cardboard and refuse material, and three-legged dogs were as commonplace to an art student’s view as were slides of Picasso, Richter, Nauman, and Sherman.

UTEP is a college where most of its students commute from home to school to work. The UTEP Fine Arts Department was, during my tenure, heavily constructed of Bauhaus educated instructors and idealogues, many in love with the notion of experience and aesthetic production–beauty for beauty’s sake. Classes were, and I believe still are, discipline specific: drawing, painting, sculpture, printmaking, metals, and ceramics. Video, film, audio, and performance were discussed buzzwords but not materialized or taught.

Within a span of 5 years (1994-1999), and after Ruben went on to CalArts and the Whitney Independent Study Program, UTEP had graduated some of the most compelling artists I have ever known (Gilbert Chavarria, Adrian Esparza, Victor Quezada, Ismael de Anda III, and Veronica Duarte, to name a few), with three of the four going on to CalArts. This is of particular import because up to this point UTEP, in its history, had only placed two other graduates in reputable art schools: Sam Reveles at Yale and another at UCLA. I believe this Deleuzian event occured due to the influence and work of Ruben Verdu. It is funny how a place can change, if even for a while, through the presence and influence of just one person.

During my time at UTEP I learned, through this spectral presence, that there existed a possibility of making and interpretation that I had yet to understand, and yet that I desired to learn. That countering institutions, organizations, and pre-determined means of producing and interpreting culture were things to be sought-after and championed. That education and authority figures, albeit not all doctrinaire, were to be challenged and displaced, and that the only realm left for those not willing to succumb to popular culture was the practice of art.

The thoughts above are some that I share with Ruben in this interview, particularly through the mode of questions, particularly from an indirect approach. This interview began on December 20, 2006, and is ongoing. We both felt that an ongoing dialogue, separated by thousands of miles and personal responsibilities, yet connected through digital means, would be a more lively and challenging structure in which to continue this interrelation. It is odd that this interview has worked out this way, for as the reader may gather, it mirrors the elusiveness and infinity of our first meeting. –Sergio Munoz-Sarmiento

INTERVIEW

December 20, 2006 

Sergio Muñoz Sarmiento: Ruben, I remember first seeing your work at the University of Texas at El Paso (UTEP), sometime in the early ‘90s, around 1994. It was a piece with a running electric fan and some text, I believe it included the words: “Prima la porta…” I remember thinking that this work was very different from other student work I was seeing there at the time (or any other work in El Paso for that matter). 

Ruben Verdu: In truth, you are kind of making a hybrid, and putting together parts of two pieces that were shown, I think, at end of 1992. The main installation took advantage of the settings which I’ve always found very curious. As you know, three walls of the gallery were made out of panes of glass that run from floor to ceiling, an issue that not only gave that space its name, the Glass Gallery, but also a certain look of vitrine, of display. The fact is that it wasn’t very accommodating space for some artists, especially painters, photographers, and others that rely on walls to show their work. That’s why there were permanently a number of floating walls to compensate for that lack of support and opaqueness. It was also high, and overlooking across the border into de colonias of Ciudad Juarez. From there one could enjoy, almost everyday, a full blown sunset. Can you see? It displayed a concrete panoramic, a Benthamian privilege. So I began by emptying the space.

(Mater Politica, Installation View, 1994, U.T. El Paso Glass Gallery)

It just happened that the only opaque wall that opposed the otherwise transparent scheme of the gallery was placed in front of the door. I could, therefore, organize the viewing accordingly. The installation was titled MATER POLITICA. This was highlighted on that wall which, painted entirely in black, displayed the title of the show in monumental dimensions. I rigged, as well, an industrial fan that blew a huge mass of air toward the door, and prevented a confident entrance into the space. In front of the fan, and blowing with more vigor, there was, most importantly, a white fur flag with eight nipples on each of its sides.

(Detail shot, Mater Politica, 1994, U.T. El Paso Glass Gallery)

As you know, Gilles Deleuze, was very fond of analyzing territorialization practices. He believed that territorial animals are amazing because to constitute a territory has always been very close to the beginning of all art. One image accompanied my thoughts, then, all the time, the etruscan Capitoline she-wolf that reared Romulus and Remus, that became the symbol of the establishment of the Roman Empire, and a model of our modern concept of State.  

Can you talk a little bit about how you ended up in El Paso, UTEP, and what your experiences in both that city and the university’s art department were like, and how they affected your work?

I arrived to El Paso from a year traveling through Mexico and Guatemala. I arrived very politicized, and with intentions to return to the south soon. I was at the time trying to obtain the Mexican nationality, can you believe it? I’ve always dealt with my kind of blurred, undefinable, mistaken identity, a bit of this, a bit of that, naturally, without surprise, without shock.. A couple of months ago, I meet in Barcelona two other alumni from UTEP. One is a very good friend of mine, the writer Roger Colom that lives now also in Spain, but that was born and grew up in Ciudad Juarez. When I first met him in El Paso, he began talking to me in Catalonian. We did great work together, my best work while in school, and we presented it at the other side of the border. It was so important to work that way!

(El Organismo del Animal. La Raya. Ciudad Juarez. 1992)

(El Organismo del Animal. La Raya. Ciudad Juarez. 1992)

January 3, 2007

Thanks for the clarification–I always tend to mix up things. But you raise an issue I want to address, so this is going to be a long question, and that is, if I’m correct, much of your work tends to reference and/or be influenced by an amalgam of “disciplines” and “discourses”: theoretical, historical, literary, and philosophical works (Bentham, Deleuze, Borges, Roman history). Not that this is a solitary endeavor, but it’s certainly a “mode” of working that is not too popular or evident today, and perhaps even within the last 20-25 years in contemporary art (in the critical non superficial way that is). What role do these discourses and practices play in your work, and how important is it for viewers to identify them via visual signs or gramaphones?

I always felt uncomfortable seeing how a culture totemizes its artists. I know this might seem kind of disingenuous, but I’ve met some of the most celebrated, most mediatized, most trivialized contemporary artists, and I’ve seen how we’ve encumbered their endeavors as if they’ve toiled suspended in a vacuum, destined, or almost exemplifying an unresolved call for ancestral heroics. This kind of individualism, you know, should be considered as to belong to the pre-Historic, that is, far from the concerns of a collective memory. Truth is that our culture is mostly cannibalistic. It’s very important to acknowledge this ingestion. What I know of Bentham, of Deleuze, and of Etruscan Art, is far from what they meant. What I’m quoting is what I misread, or misrecognized; in short, what I’ve missed, what I consumed.

We are all products of an infernal machinery, and I say infernal because it is quite Dantesque at all levels. I aim, above all, to be affected by this monstrous dimension. My ability to respond to it, my rhizomatic responsibility, can only take place there, after I submit to it. How could I otherwise bring my proposals to the scrutiny of an audience? I’m not more than just given to that continuous and pulsing attempt that tries to gain the complicity of others. Isn’t this the basic condition of our mutual exchange, of this right to public discourse? I’m given this right to exhibit what, my symptom, or ours?  

I relate to your conception of blurred identities. But perhaps your outlook on subjectivity is exemplary (as exemplary as one can be) of these “situs” and of your own “blurred, undefinable, mistaken identity, a bit of this, a bit of that…” In this light, are you, and your work, proposing an “alternative” or new subjective space, or assuming Cadava and Nancy’s problematized question a few years ago, which could not be without the “who”, “who comes after the subject?”

The masses come after the subject, or, as I just said, go after the subject. The subject is simply a minuscule attempt at an ordering construct. The pulse of the many goes, however, clearly beyond this production of a discreet self. Let’s be honest. A priori, we don’t have agency in the many. Action from the many is only spontaneous and dependable, meaning that it is reached in coincidence. But let me formulate a possible scenario. Now there are some that propose to serve the tenets of a horizontal cultural exchange, and have acknowledged the existence of what they call a relational aesthetics. This brings about a shift in production priorities up to a point in which is not the traditional subject that manages his or her gestures, expressions, or exposures anymore. Production is spread across. Inevitably we begin to subordinate ourselves to a certain fate, a certain uniformity, a certain social scale that we cannot call subjectivity anymore. That’s very exciting. The most acknowledged subject is the public subject, the famous individual, the constantly monitored self that is at the mercy of the tumultuous demands of the crowds. The rest are statistics.

I ask this because in your work there seems to be a desire for a certain eye, a certain ear, and a certain emotive-analytical framework, one to be encountered, and Nietzschean perhaps. In this sense, the work reminds me a bit of Tom Stoppard, Gaspar Noe and Jorge Luis Borges, particularly in the sense that these individuals (for the most part) seemed/seem to have an audience that is more hermetic than diffused. Assuming I am correct, are you an artist’s artist?

 For me, it is very important the existence of this quotational environment, but in my work I’ve tried to avoid any meta-takeoffs that will not insure, at least, a visceral response from my audience. I hope it is not necessary to go beyond, and exponentially analyze what should be simply the engagement of a very heterogeneous element that is hardly understood, and that I hold in part responsible for the completion of the work. In any case, it is very hard for me to imagine who is looking at my work, and who I wish was looking at my work. Notice that you’ve mentioned four excellent producers of narrative. More than a construction of a subjectivity, I admire how well they unleash an agency, an array of potentialities within the most constrained of circumstances, within the inevitable. This inevitability is ultimately, I think, the real function of the quotational.

 May 21, 2007

 It’s neither the commercialized or romanticized that bothers me. It’s the historicized aspect the one that really interests me. When I say totemizing, I refer above all to the ways in which culture condenses all attention into someone, how it renders cult to them. Culture really goes beyond the quotational here. The quotational works more like a common denominator. To quote is to disperse knowledge, is to include details into the amplitude of a bigger need, to articulate thoughts into other discourses. It’s user and abuser friendly. Totemizing, however, as all cultural condensation goes, is found throughout history as characterized by glorifying the individual endeavors of a few, and omit the general conditions that made possible their deeds. It answers solely to a transcendental need, a kind of infantile need. Most of humanity is barred from the economy of history. Within that economy, it is as if we were accepting our anonymity, our disappearance in exchange of encumbering the life of a few we believe represent us in the best light. I find this, of course, to be just of little consolation. What transcendence are we really wishing for? …one hundred years? …one thousand years? …one million years? History has a time limit too. We must think of it as already dying. 

 Time entered the equation of capital long time ago, that is, no one can deny its accumulative value. The present cultural milieu, however, does not care about this concept of a time silo. Of course not, it destroys its sense of contemporaneity, its sense of its own endeavors. Otherwise, It’s always caught up by what was done by others in the past. On the contrary, therefore, it values speed and, above all, loss of memory. I really enjoy witnessing today’s response to this traumatic marking of history. Things come and go quickly today, and leave a very faint trace. Indeed, they tend to achieve rapid disappearance. It makes me very happy to somehow witness the so called end of history, this kind of paradigm in which facts and ideas only matter a short moment. To be condemned to repeat things is not so bad after all. In any case, reason has proved not to be a strict guardian against this recurrence.

The disappearance of this collective memory does bring back this cult of individualism that characterizes the cultural landscape today, but it foregrounds it, more than ever, as the mere theatrics of a parade. Don’t forget that individualism only takes its monstrous proportions within the transcendental flow of history anything else is just a momentary recognition that has already lost its claim to persist through time, its claim to a historical dimension. At the end, this new individualism is just pleased to glorify itself in the now knowing nothing else, forgetting the forgotten.

 A mise en scène allows us in most instances to insert a fiction into the real. That’s its only window of opportunity. It proposes fleeting the impositions of the real through that opening. Collective memory has tried for centuries to legitimize itself as an aspect of the real. We cannot say that it has accomplished that. It keeps fleeting our expectative through numerous holes. There’s no rationale here. It’s purely an aporiac force. As I said before, I keep seeing a need to flatten the picture, to fill our culture with a sense of achievement. That means, at the end, nothing more than to forget. Think, for instance, about that short story by Borges “Funes The Memorious.” He is prostrated in bed, condemned to relive every detail of his past as passing through his exhausting and infinitely comprehensive memory. I think, it is very possible to translate this to our contemporary culture, one that has been saturated with so much accumulated precedence that it ultimately justifies its complete deliverance from the past. I think, on those circumstances, it’s a very understandable reaction. Accepting this is accepting that we will be certainly condemned, however, to repeat things.

Perhaps, I will be mistaken in suggesting that the quotational has imposed an overwhelming burden on culture. We should be careful to see the difference, however. The quotational is too parochial to weight on us like this, and it’s too opened to misrepresentation to generate such understandable reaction. We are talking then about something else. In Barcelona, for instance, the past has built a territory of possible actions that defines artists as professionals within a established economic order that has not changed much from the last one hundred years. Collectors buy objects, and institutions take perhaps a little more risks, but the dynamics of cultural production have radically changed, and there is nothing that can account for it. The most interesting cultural productions are not fruit of a well established professionalism anymore. They are a consequence of short lived efforts that rarely find time to build everlasting coherence. It is indeed a fifteen minute chance, and on that premise little can be expected on the order of entering a durable economic exchange, the one that fostered before the development of more studied and meticulous ideals. Culture is, therefore, floating on a rich field of amateurism. Not bad! We always suspected that it was a rich field, no?…so why shouldn’t we now fully embrace this heterodoxy?

October 11, 2007

 Aha, this is a good way to continue our chat. You mention Bourriaud’s “Postproduction” and “Relational Aesthetics.” What else are you reading and more importantly, why? Is it fair to say that the dearth of art criticism and art theory is at an all time low, or perhaps that art historians have come to be worship 20th century “icons” and monuments?  

November 27, 2007

Howdy, he, he…time goes by fast, and I like to continue our exchange…

It seems, indeed, that art criticism, and, in general, any commitment to theory have lost its footing on the affairs of the world. It must be all due to the general acceptance that emphasis on theoretical issues are all a legacy of “rationalism” and that this old fart has been finally put to rest for good. No doubt! The scale of our perspective today has change. The information era places us inside a huge panopticon with huge panoramic vistas. We look at the world through the keyhole of the screen. We know, however, that is not a powerful and omnipotent vantage point anymore, but a polymorphous ambiguity is what we are witnessing instead, a fascinating hallucinogenic nightmare that keeps us locked into the moment of the experiential present.

Rationalism can only be successful if applied to discreet bits of information, to narrow vistas, to ever so detailed issues, and that has proven to be perfect for the maquinations of science and technology. But, the general awareness today, on the contrary, is a list of contradictory, irrational and apocaliptic facts. Too much information competes to claim truth on its side. Science and technology cannot counter-balance this sentiment anymore. Neither has been able to sustain a redeeming faith on its delivered goods. Their miopic solutions are, in fact, the ones blamed today for the spoiled state of our planet. Immediate personal indulgence replaces a future built on a constructive change. That is clear.

Bourriaud’s “Relational Aesthetics” is interesting to the level that it exposes just that, the rooting of intranscendental practices. I mean nothing negative in saying that, but it is worth noting that it avoids ambitions beyond those of the formality of the moment, and the actuation of a lived present. In other words, not trancendental here means no place for an activity that goes beyond today into tomorrow. It means there’s no postponed benefit. It fully adjusts itself to the use-and-throw-away tactics of our contemporary materialism.

February 18, 2008

Querido Sergio…I expanded the first question [on "Postproduction" and "Relational Aesthetics"] because, as I was saying to you, I think that Richard Sennett’s point of view is crucial to our discusion…Enjoy!

It seems, indeed, that art criticism, and, in general, any commitment to theory have lost its footing on the affairs of this world. It must be all due to the general acceptance that emphasis on theoretical issues are all a legacy of “rationalism” and that this old fart has been finally put to rest for good. No doubt! The scale of our perspective today has change. The information overload in which we’re immersed places us inside a huge panopticon with huge panoramic vistas. We look at the world through the keyhole of the screen. We know, however, that is not a powerful and omnipotent vantage point anymore, but a polymorphous ambiguity, a fascinating hallucinogenic deluge that keeps us distracted and locked into the moment of our experiential present.

Rationalism can only be successful if applied to discreet bits of information, to narrow vistas, to ever so detailed issues, and that has proven to be perfect for the machinations of science and technology. In general, however, our sentiment today is a list of contradictory, irrational and apocalyptic facts. Too much information competes to claim truth on its side. Science and technology cannot counter-balance this sentiment anymore. Neither has been able to sustain a redeeming faith on its delivered goods. Their myopic solutions are, in fact, the ones blamed today for the spoiled state of our planet. Immediate personal indulgence replaces a future built on a constructive change. That is clear.

Bourriaud’s “Relational Aesthetics” is interesting to the level that it exposes just that, the rooting of in-transcendental practices. I mean nothing negative in saying that, but it is worth noting that it avoids ambitions beyond those of the formality of the moment, and the actuation of a lived present. In other words, not transcendental here means no place for an activity that goes beyond today into tomorrow. It means there’s no postponed benefit. It fully adjusts itself to the use-and-throw-away tactics of our contemporary materialism.

Perhaps we should look more closely at the vistas proposed by Richard Sennett in “The Culture of The New Capitalism”. I think he exposes more explicitly than anyone the kind of inevitable consequences this new culture places in our laps. In that context, all is rulled by an intense hyperactivity, in the markets, in politics, etc. This is definitely a sign of a lively culture! But it’s well known also that this hyperactivity difficults our capacity to concentrate and to pay attention. He reminds us that “…when citizens act like modern consumers they cease to think like craftsmen”. The most intolerable enemy of our contemporary culture is any kind of meritorious accumulated knowledge that by force halts the momentum of this superproduction, of this infinite growth. The use of knowledge takes a heavy toll on the open flux of time. It tends toward specialization, essencialism and dogmatization. Time don’t flow well around facts; it manifests itself better in the accidental, in the surprising, in the unknown, in the catastrophic.

 The monstrous carries with it a great deal of passivity. That’s a very fascinating issue to me. Passivity is so all over the place, but it’s, all at the same time, so utterly disregarded. The word monstrous brings with it all the underpinnings of its latin origins. Monstrare meant to show something to the scrutiny of an active audience. Under those conditions, the monstrous found itself fully instrumentalized by entering the regiment of the sign in an exceptional way, not determined by convention, but by fascination. After all, to see is to believe. Without having done anything actively to generate so much attention toward itself, this purely displayed one continues, nevertheless, enduring its demonstrative status without attempting escape.

Truth is that there’s no escape. The monstrous belongs to the ground where the passive one rests fulfilled and happy. There, the visual constructs are mainly unnecessary. Tactile and olfactory stimuli are much more relevant. This is where I prefer to begin. That’s my point of departure. In 1998 I showed in Dallas LOVE WITHOUT CONTACT trying to lay out a crude genealogy of visual origins. I manage to move the left and the right walls of the gallery to the middle reducing the space to an extremely narrow cleft only nine inches wide. On those two walls I hung a couple of large paintings in such a way that the conditions of the spatial collapse forced them to be displayed facing each other so close as to almost having their surfaces touching. Love was an important acknowledgment here because love is blind, because this type of intense contact, this being-so-close, this type of alter-knowledge, cannot be constructed through the visual; within it, we cannot step back to take a look, there’s no chance to distance oneself from it. This opening, this cleft, was a reminder, however, of the elemental structures necessary for a visual experience to take place. It began deploying the most minimal amount of depth and panoramics on which to construct successfully our visual capabilities, but this opening was, also, the beginning sign of antipathy, difference, separation and distance.

February 20, 2008

 Wait. I want to go back a bit to your expanded answer mentioning Richard Sennett’s, “The Culture of The New Capitalism.” Although I have not read it (yet), what you seem to touch upon is something that I have been thinking about due to our (the U.S.’s) current political situation in relation to the presidential election. What is astounding (here in the U.S.) is the amour fou relationships with Barack Obama and the perpetuation of and desire for a cult-of-personality. Mix these two factors with his heavy messianic overtones and we have a great cocktail of disaster waiting to happen, all in the name of political correctness, “post-racism,” and affirmative action. This situation is strengthened and buttressed by the U.S. media’s glamorization of Obama via the mass dissemination of his spectacle and his media/campaign constructed image. It is astounding to see and read so much content which is produced by the media and fanned by Obama which completely avoids any engagement with real (ontic) political situations and ideologies. I follow your quote here for direct correlation: “all is rulled by an intense hyperactivity, in the markets, in politics, etc. [...] But it’s well known also that this hyperactivity difficults our capacity to concentrate and to pay attention.”

 And then of course: “He reminds us that ‘…when citizens act like modern consumers they cease to think like craftsmen’. The most intolerable enemy of our contemporary culture is any kind of meritorious accumulated knowledge that by force halts the momentum of this superproduction, of this infinite growth.”

It is mind-numbing to even begin to think that the concept of “hope” and of “the new” is grounded on the nexus of ignorance and stupification, without even a reference to two 20th Century historical figures who were well versed on image, cult status, and empty but crowd-moving rhetoric. But is this not what faith and religion are about? Have we, in the U.S., become the Church-run state, on our way to becoming the new Rome, the Italy and Germany of the 20th Century? And what ever happened to Barthes? I’ll come back to the monster in a bit…

February 21, 2008

Excellent q and stmts about Sennett’s!!! He develops a whole chapter on politics. I’ll try to convey more on him while responding to your latests comments. Let’s make a parenthesis here to let you know that part of my monstrous response haven’t appear. It’s important because that’s where I answer the question of the “hight”. I add following this the piece lost…

The monstrous is a product of this visual detachment, of this visual lift-off; is its debris. Before this departure, experience, like I said, is reduced mainly to pure contact, and this contact, obviously, succeeds on the level it combats any kind of rejection, any kind of repression. Freud, at that stage, imagines a hugely developed world of strong smells. The four-legged animal, for instance, keeps always a nose leveled to genitals and anuses, and this getting closer only intensifies the factual presence of things. At one point, however, some kind of felt anticipation, some kind of alarmed condition, provokes our raising ourselves up from the ground. Our erect posture brings about a huge switch of priorities. On one hand, our genitals get hidden in the inner leg, and, more importantly, are placed far from the nose. At that hight, also, the nose can only get unreliable stimulation because all data has already been mixed up by wind and turbulence in the air. On the other hand, the eye gains a panoramic, a perspective, a depth, it gains the distance necessary to allow the optical architecture to develop fully into an anticipatory apparatus, and to assure, ultimately, the rapid establishment of its insistence and domain. Far from any expression of passivity, I consider this situation more like the gaining of a worried gait, the development of a behavioral pattern based on being on constant alert, up, way high up, and with the eyes wide opened. This distance now cleans and sterilizes most of our perception. Moreover, it idealizes our experience because we’re placed away from things, detached, and objectively seeking without remedy that final and convincing demonstration. Far from the dirt of facts, the stage is finally set.

There’s now plenty room for fantasy.

 Since I seem to have chopped off Ruben’s previous statements from February 20th (but note that the chopping was in fact caused by an html invocation), I, in turn, invoke the above. I am in a phase of attraction to Love Without Contact, a seemingly perverse and yet functional structure in which one can live and experience, all without the heavy baggage of bourgeois symbolism, materialism, and dictates. More on “Love” in the coming days and weeks. As Mr. Obama has many a times prophesied (god bless the man), “Let the love begin… .” (I trust the irony is well understood).

 …can you tell me a bit about your interest in the “high,” the “high-heeled,” and its connection to the monstrous?  

Let me say, that recently, and without mention, the notice of certain curated art exhibitions that still, and to this day, “totemize” not only artistic production and the artists but also their very own academic/intellectual discourses for the sake of facilitating and reproducing well-worn and archaic narratives and subjectivities. Why does this persist? What do you encounter in Barcelona?

 Furthermore, I wonder if the aging of an artist is something that is considered, or should be considered, within the realm of artistic production. In some sense this ties back to the quotational in that the library or archive from which to draw from is not only widened, but deepened by the complexities of one’s level and ability to interpret and analyze. I fear I am being too generous in regard to many current contemporary artists.

Previously, you mentioned ideas of the quotational and the totemizing of artists by a culture. Can you explain this “totemizing” a bit further? I hate to draw binaries, but are we still trapped between the commericalized and romanticized notion/identity of the artist?

This interview took place the glorious sunny afternoon of October 7, 2006, at the Spain Restaurant in Los Angeles, California, hours before the New York Mets swept the Los Angeles Dodgers to win the National League Division Series. The interview covers a wide range of questions: from Lawson’s artistic career, deanship at CalArts, and writing publications, to Lawson’s current thoughts on contemporary art, art pedagogy and the impact of market forces on artistic production.

Sergio Muñoz Sarmiento (SMS): Your own work as an artist, having spanned different social, political and economic moments, how has it changed or evolved, or what problems have you noticed?

Tom Lawson (TL): So you want the whole story? [laughter] It’s a long answer.

SMS: Yes, that’s alright [laughter]

TL: I started being a professional artist in the mid to late 70s in New York, meaning I started showing work then. The art context in that place and point of time was quite specific; progressive art was conceptual and post-minimal. So for many young artists like me, recently arrived in town, the thing to consider was painting because it was the bad thing, and also to think about representation because it had been put to one side. I went to New York in my mid-20s, and ran into other artists coming from all over the U.S. and parts beyond, who were talking about similar things. For me I’ve always liked painting, but there I learned how over it was, despite the fact that you could see some of the best work ever produced by giants like Philip Guston and Jasper Johns in those years. Some of the other young artists I met were from a new place called CalArts, and they tended to be very sure of their ideas, but there were other equally interesting people from Madison, Buffalo, Nantucket and other exotic places I’d mostly never heard of. We hung out into the night, talked a lot. In time this talking lead to Susan Morgan and me starting REALLIFE Magazine, and the idea of this magazine was that it would be a place to hear the artist’s voice, artists talking about each other’s work, within a new media context framed by TV and movies. So we started this magazine and featured artists like Sherrie Levine, David Salle, Cindy Sherman and Richard Prince: newcomers to the city, not widely known at the time.

During this time in the 70s there wasn’t much of an art market; New York itself was a weirdly impoverished city, almost bankrupted. The Lower Manhattan area where artists were gathering, Soho and Tribeca and down below the World Trade Center, was an area that was deserted after the workday. The industries that built them had all gone, and the artists who lived there were the only ones that were there at night, so you very quickly knew your neighbors. It was a weird, small village feeling and atmosphere, very experimental — experimental living, experimental art, theater, and music, almost like an unstructured version of CalArts spread through the city. This was when I met some of the first generation of CalArts artists, people like James Welling, Matt Mullican, Jack Goldstein and David Salle, as well as Barbara Bloom, Susan Davis, and Ericka Beckman — there was a lot of interesting stuff going on.

I focused on painting and used imagery from the tabloid press, sensationalist images, as my source material, and framed them in a minimalist context. At the same time, and along with the magazine, I also started writing. I found that I had a facility for this. I think Flash Art was probably the first to publish longer pieces of mine, although I published in various other publications, big and small. In the very early 80s there was a big regime change at Artforum and I got into that, and that’s where Last Exit: Painting was published. That turn into the new decade signaled a big change, a moment when a number of curators and gallerists who had been paying attention to new directions in studio work began taking action, opening galleries, seeking a new generation of collectors. For me the significant one was Metro Pictures. Helene Winer had been working as director of Artist’s Space where she presided over a kind of salon where a lot of us met. But interesting though that situation was, it was a non-profit space where you could only show once; you know it wasn’t a career builder. So Helene got tired of that and decided she wanted to actually help people into the next phase of their careers, so she partnered up with an old friend, Janelle Reiring, who had been working at Leo Castelli as an assistant and together they started Metro Pictures. At roughly the same moment Mary Boone left her position at the Bykert Gallery and opened her own gallery around the corner, and Anina Nosei, first in partnership with a print dealer from LA called Larry Gagosian, then on her own, started another gallery focused on new work. All of a sudden there was this explosion of interest and a new market.

Soon there was this influx of Europeans; Italian and German painters and critics and collectors. An interesting thing happened; we began to make a living as artists. In the 70s we were all renovating lofts, knocking down walls, doing sheetrock, simple plumbing, you know, crap work. But in the 80s we were actually selling artworks, which is a very exciting experience. For a few years it seemed like you could do interesting work and get support for it and it was all part of a growing excitement. And we all did very well.

But as the Reagan period developed and extended it began to get weirdly cynical. The politics were turning nasty, and the idea of marketing art was becoming the driving idea in making art – Ashley Bickerton made a piece with a device in it that purported to monitor the work’s increasing value . Things were getting less comfortable, and by the late 80s I was getting really disillusioned with the whole thing because it was just a scene ruled by fashion more than anything. I remember a particularly sour moment — Martin Kippenberger had a show at MetroPictures at the time of the Wall Street crash and the cynicism of Kippenberger along with a pervasive anxiety about where the money would go just got to me, made me think, “You know, is this really the world you want to be in? [laughter]

This is the time I got interested in public art, because it seemed like a way of supporting my interest in representation differently, of getting money differently, circulating the work differently. The challenge of doing things in the public sphere, and developing some content that would connect with regular people. I did a number of big projects in New York, Madrid and various cities in the U.K., from 1987 to 1991, and I really liked them and thought them successful projections of my ideas. I did a lot of temporary murals, and I did them in situ. I wanted a chance to talk to people passing by, gathered around, asking, “What the hell is this?” I always found that people were generous and curious talking about what I was doing. I did a lot of work with images of public statuary and people would recognize that, “I know what that is, I used to play on that statue…I see what you’re doing…I remember that guy…” Or, “Hey, that’s Abe Lincoln,” and it was never Abe Lincoln, it was some New York politician from the 19th century who had worked in the Tweed machine, or a renown poet dear to the hearts of an immigrant group that had finally made enough to pay for the memorial. The work I was trying to do was to bring this submerged history back to attention, and it kind of worked, people were talking about it, after we got past the Abe Lincoln problem. [laughter]

For a few years that was pretty good, but ultimately the drawback of public art is actually politics, because at the local level you have to get through all these committees and arts commissions and departments of general services, bored employees, and traffic control. One time I had to answer a whole set of questions regarding my use of very bright colors. The concern was that they would be distracting to motorists. And this for a mural that was about 20 feet over street level [laughing], motorists wouldn’t even be able to see it.

SMS:

Because billboards aren’t distracting right?

TL: Exactly, [laughter] commercial billboards don’t even have to go through all this process [more laughter].

SMS:

That’s because it’s commercial.

TL:

Exactly. It was on a city building, a municipal building at the foot of the Brooklyn Bridge, so there was also this concern that motorists on the bridge would see it and veer into the river. [laughter] I thought that was pretty exciting, so I went out onto the bridge and sure enough, you could actually see it pretty well, which was great. Bu it was also pretty small and you know, it wasn’t distracting.

Anyway, it was during this time that I moved out here to take up the job at CalArts. I’d been a resident of New York and had an investment in its representation, and an older history stemming from Britain, and I was ok with that, because it made sense to me. But I couldn’t figure out a public space of Los Angeles that made sense to me. I just couldn’t get my mind around the problem in a way that satisfied me. So I stopped thinking about public art, and got more involved in the issues of educating young artists, and when you’re running a school it takes up a little bit of time.

SMS:

Just a little bit [laughter].

TL:

Yes, just a little bit. I began to pursue other things in the studio. I made paintings about fire, because one of the first things you notice when you move out here is the fire season, which is a shocker if you are not from these parts. Hillsides and buildings regularly burn down in October. So I did a whole bunch of paintings based on images of fire, and it turns out there was a particularly bad season of fire followed by a season of riot, and I just thought that that wasn’t the idea; that that wasn’t the right time to show them. I didn’t want to have them misunderstood as having anything to do with ‘the fire next time.’ That wasn’t what I had been thinking about.

SMS:

Now is that something you would have thought about in New York?

TL:

The fire?

SMS:

No, the politics.

TL:

Yeah, it was local weather conditions, local politics, local housing patterns; it was those kinds of thing I was thinking about. I was thinking about Goethe’s Faust. I wasn’t thinking about inner city politics.

Then, within the year there was a huge earthquake that rattled CalArts and we had to evacuate the building for six months for repair. My job went from being merely the dean to the entire project manager looking to find alternative locations, figuring out what we needed to continue, and how and where to provide that, and keep everyone’s spirits up. I really got into it because it returned me to the day to day excitements of doing public art. I was out on the road much of the time. I got a cell phone for the first time, a laptop with fax connector, so I could be in touch with Joann at the art office. She was in a trailer on the parking lot at CalArts, and I was driving everywhere in the Santa Clarita Valley creating the art school again and making sure that people were ok with it.

We found these amazing Lockheed buildings that had been test sites for stealth technologies — a huge hangar and wind tunnel, and all these experimental labs. They gave us the use of the main building and we cleared it all up, turned small offices into studios, and bigger offices into art galleries and classrooms. Some students left, but the ones who remained learned a lot about improvisation and experimentation, hands-on. There was a student there who had done some prior projects about public interactions and he made a bar that opened every afternoon at five [laughter]. It was an amazing six months.

In this period I got myself a new studio and began doing a new set of paintings that I still don’t know what to think about. They were diptych paintings with each panel about the size of a table-top (3’ x 5’). Up until this point I had kept a studio on campus, but after the earthquake I didn’t have access to that studio and couldn’t get my work out. So I got this idea about making art that would fit in the back of a station wagon. I needed to make something that I could pick up and get out.

But wanting still to make large paintings, I started making the diptych thing. They were juxtapositions of interiors and faces. The interior spaces were all — well, the whole thing was psychological. The pictures of interiors were of insane asylums, cramped little cells with wooden benches, narrow hallways and steep staircases, that kind of space. Across a slender divide of bright color these confined spaces sat next to large faces, mostly found in old movie stills and newspaper clippings, expressing some kind of emotion. They were faces wracked with extreme emotion; they could be shouting, screaming, laughing. They are strange paintings in flat acrylic color and I showed them in London, but nowhere else. They were not well received. The most response I got was: “I guess this is Los Angeles color.” I said, “Los Angeles color? Los Angeles color is bleached out non-color, what are you talking about?”

So mid-90s I’m enjoying the teaching, running the school and thinking about art, a kind of abstract thought that can feed writing, but not painting. Studio wise I’m having a bit of a hard time. You know, I had been so involved with the whole New York thing since arriving there as a 25 year old, that coming to a new city when I was 40 I never really got into the process exactly. I was out of the feed-back loop.

Now, my parents had died in the late 80s, first my dad and then my mother a few years later. After she died my brother and I shared a small inheritance, much of it old furniture that had actually been my grandmother’s. I found that I felt very attached to that stuff, and to the idea of Scotland. Suddenly I was faced with the idea that if I were to go back again I’d be a tourist, and having to stay in a hotel room, kind of weird. So I took the money and bought an apartment in Edinburgh and put this old furniture in it so it’s a nice memory container. Susan and I still go there every year, sometimes two or three times a year.

During the mid-90s I went a lot because I was working closely with the art school in Glasgow; they have a process called ‘external examination’ where people from the outside come and basically ratify that the grades are ok. I was the external for the painting department for a number of years. During that same time I was invited to be one of the co-selectors of the British Art Show, which is a — I love the word — quinquennial exhibition, every five years. It’s a national exhibition organized by the South Bank Centre, London’s premier organization for all of the arts, including the Queen Elizabeth Hall, the National Theatre, and the Hayward Gallery. That’s to say, it’s a big deal. The show is intended to be a survey of significant trends in British art, and our version was the official moment of recognition for the Hirst/Emin/Gordon generation; pretty hot. For a year and a half I went to London at least once a month to meet up with my two co-selecting colleagues and visit studios and talk about what we were seeing.

During this time Britain was going through a series of slow crises. It was the end of the Thatcher/Major period, and the Tories were seen as corrupt and ineffective, out of touch. It was also the beginning of the end for the Troubles in Northern Ireland, and there were bomb scares in London quite regularly. So when the labor party came in under Blair, part of the promise and part of the excitement, although it’s hard to imagine now that Blair excited anyone, but he did, part of the excitement was a promise to bring about constitutional change to devolve power back to the older nations within the Union, to create local parliaments in Scotland, Wales and Northern Ireland. What came of that for Scotland was called devolution — a new parliament, sort of equivalent to a state government, with tax raising power, but still subservient to central government for the big issues.

I really got into reading about all of this. Whenever I was in Scotland I read the latest that people were writing from left, right and center about whether Scotland should be fully independent or partially independent. In the course of all that I discovered a historical figure from the 18th century, an interesting figure from the period of the French Revolution, someone who had spoken about republican politics at that point and had been punished for it. I started researching this man and just got lost in the research, and this is a project I’m still working through. I’ve written a couple of little books using archival material and my ultimate goal is to patch all these little books together and make some sort of novel. It’s constructed using the same principles I use in the paintings, found materials, tweaked and manipulated and stuck together. The story is a fantastic story, full of all kinds of adventures, violence, drugs and betrayal, mixed with radical politics and their accompanying paranoia, all kinds of great stuff, and actually kind of contemporary.

This work of research and writing freed up my imagination again and I eventually got back into painting. So in the last seven years or so I’ve been painting again. At some point I realized that giving huge amounts of energy to all kinds of public work, from murals, to organizing big exhibitions, arguing school budgets, it’s a lot of energy, and interesting and selfless in some way, but not actually as rewarding as it theoretically ought to be. So I go back into studio production and I’ve been making paintings, and really liking it. I’m going to show some of these paintings in a few months here in LA, so it’s like going public with what I have been doing under the radar, privately. [laughter]

SMS:

Instead of taking what you’ve been doing public. [laughter]

TL:

But you know, all the other stuff continues. I got involved in the

Afterall project, about 4 years ago now, which is a whole other big mess in some way, trying to figure out how two institutions can collaborate on a publication that makes sense to both of them, an editorial group where we all know each other, and like each other, and at first glance think we agree, but when we actually get down to cases we don’t agree. It has been complicated trying to resolve all that, and an ongoing project. The journal has moved forward, it’s gotten better. We have some important new support from the Warhol Foundation, We’ve just gotten a new distribution deal that’s going to make it much more visible than it has been in the United States and we’re launching a website…

SMS:

And then Documenta…

TL:

And then Documenta, but I don’t really understand exactly what Documenta is doing; I guess they’re doing a side stream with journals and magazines, and they’re asking these journals and magazines to address three topics, which are: modernity and antiquity, bare life, and education.

SMS:

What is number two?

TL:

Bare life. That’s the one I don’t really get, but there’s a philosopher who we’re all supposed to be really excited about — Giorgio Agamben — and that’s his theory, bare life, the essentials of life. As it was explained to me it makes a certain amount of sense, sort of about Darfur vs. Beverly Hills, how can that be possible in a just world, and is there such a thing as a just world? I’m not quite sure how art addresses that. Actually we’re having an editorial meeting here in LA later this weekend, and this will be one of the topics on the table, so in a few days I may have an answer of some kind, but right now I’m kind of in the dark.

SMS:

Maybe we can go back to this Afterall/Documenta issue by me asking you, when do you think art first became critical, or about critique, because that seems to be a word that gets tossed around a lot, “what does your work critique?,” or “my work critiques…”

TL:

I think in our period, on an aesthetic- philosophical level, very abstract philosophical level, it goes back to Clement Greenberg. His contention was that art has an obligation to self-critique. With him it’s a critique within the medium, the idea that painting reduces itself to its essentials as a kind of series of progressions to an end point, and he’s talking about Pollock. It’s highly formal and it’s got nothing to do with politics, except in the most rarified way, but it puts that idea into play in, what, the 50s? He begins to argue it earlier but by the 50s he articulates it more clearly. By the late 60s the conceptual art movement, in part arguing against him, begins to articulate the role of critique in a more generalized, political forum. It’s at that moment that a pure aesthetic idea gets picked up and turned against itself, and we begin hearing about the idea that art needs to question it’s own institution of itself. Not simply the aesthetic form, but also what it stands for and what it represents in the larger sense – and if it’s only part of the larger trappings of bourgeois capitalism then we should do something about it.

SMS:

It’s interesting because on that note, I remember we did a panel back after September 11th which you were part of, and my sentiment and that of quite a few people in the general audience was that this event was going to shift art back to the public realm and away from the market and create a need for artists within the U.S. to engage political action and do social commentary. Did that happen?

TL:

[laughter]

SMS:

I was going to make a statement but decided to ask a question…[laughter]

TL:

[laughter] It’s interesting, because in today’s Times…

SMS:

Which times?

TL:

Today’s Los Angeles Times…what day is it?

SMS:

I think it’s the 7th of October, 2006

TL:

In today’s LA Times, Christopher Knight, chief art critic of the newspaper, has a long review of the Orange County Museum’s California Biennial, a survey of recent art out here, and he makes the case that there does seem to be a newly politicized art production going on. I forget how exactly he puts it, but what he wants to say is that it’s not just an easy sort of sloganeering art like last time around, which was the early 90s, but now a more complex consideration which is a fallout of the war, not quite directed at the war but more about other residual issues, abuses of power, and things like that. But reading his descriptions — and I haven’t seen the show, it just opened and Orange County is a long way from here [laughter] — the work is all pretty much framed within market constraints. You know, compact video installations, various series of photographic works. It doesn’t sound as though it’s using this new political thinking to create new forms or to challenge perceptions. I mean, it’s Orange County of all places. I think we’re in a very odd political moment where art is very conservative and contentedly so, and the political consciousness and protest art form is a box set that you get as one alternative in an array of possibilities. You can get your political, smart, conscience solving area, and your aesthetically pleasing area, and your erotically titillating area, and it’s all good, and culture is rich, and we’re a complicated people but we’re not going through a moment when culture is upsetting anything or demanding that it upset anything, and I don’t know actually what to make of it because I’m getting older and I don’t necessarily want to see things get upset, you know. [laughter].

SMS:

What does that mean?

TL:

You know, ten years from now I’m thinking of retiring…

SMS:

It’s the reality of things…

TL:

Yeah, it’s the reality…

SMS:

Ok, ok…

TL:

When you’re in your early 20’s you can see revolution coming, and fuck it, it doesn’t matter! Let’s smash everything, begin anew. In your 50s that doesn’t seem so appealing.

SMS:

It’s amazing because you’re touching on these issues that I’ve wanted to ask you about, like the realities of life versus the realities of making art. For example, in art school no one is ever really taught how to make a living, a living when you’re 30, 35, 40 or 50. So a long question made short, does art have a boundary that it meets: health insurance, steady income, retirement?

TL:

I don’t know that art does, but artists do. I was just talking last week to someone who wants to be our new alumni director. She’s been talking to a variety of alumni, some successful and some not as much, and she said that she had encountered quite a bit of bitterness from some, who showed resentment at their peers who they thought had sold out and made millions, while they were stuck making cabinets or teaching. We talked about this at some length because it goes right to the heart of what you think your life will be if you’re driven by this idea of being an artist. You have to understand pretty early on that you’re going to make some compromises in one place or the other. Not exactly that you’re going to compromise your art, but that you’re going to allow some limits to what you’re going to do if you feel you want to have a reasonable way of living with some sort of continuity to it.

You can recklessly say, “Screw that, I’m going to make the art I want to make,” and just make it. The people who have the balls to do that are either the ones that make a lot of money at their art, or they make nothing. It’s an absolute gamble that for some pays off tremendously. Even those ones do not necessarily have a happy life because it’s a very stressful life, being on the edge of your creativity at all times and having to please collectors, curators and critics, but it has its own soul, and you have your own focus and you just plunge ahead. But if you’re out of sync with the times, or you’re not as good as you think you are, and you don’t connect to a support structure you just…well, it’s a life of despair and disaster. So it’s a very small percentage of artists out of art school that are willing to take that risk. Most of us try to figure out how to survive, and you begin by doing part-time things and at some point you realize that a steady paycheck is a really great idea. Interestingly enough people can find their steady paycheck in the market, and that’s where another kind of compromise comes, when you realize that you’ve made something, an object or gesture that has wider appeal, and you start to make it again, and again, and again. On one hand that can be kind of nice, you get your studio and your assistants and you’re making these things every day, but existentially it’s maybe a bit fucked up.

I actually like the teaching option. The compromise there is that you’re not in your studio every day, but while you’re making your money you are talking about art and you’re talking to younger artists and encouraging new thinking. You’re staying alive on some level, emotionally and creatively, and when you’re in your studio you can do whatever you like and you can follow whatever eccentric idea you have because you’re not depending on the outcome being your paycheck. You are hoping to get people’s attention, but it doesn’t figure in quite such a dramatic way.

SMS:

Do you think, well, there’s been a lot of talk recently of the MFA being the new MBA. What does this mean, do you believe that?

TL:

I don’t know what that means. I think it’s just a journalistic kind of cynical catchphrase.

SMS:

Cynical?

TL:

Yes, cynical. I mean, it’s true that the art market has, in the last 10 years, been an optimistic growth market and one fueled by young art, and so it’s true that more recent MFAs than ever before can leave school and start selling art, and do quite well for a period of time. I think that’s what it’s about; there are all these young artists jetting around the world, paying off their loans, living pretty well, and so it looks like a successful strategy. The problem with it is that it’s based on the idea that the art market is forever upward, and we know that can’t be. I think, and I like, that at CalArts we take the market with a pinch of salt, and that we discuss the fact that there are alternatives and other ways of being an artist, and other ways to think about art, because time will come when there won’t be such a hot market. The 60s saw a booming market and then a crash, and the 70s was a period of stagflation, oil crisis, and no market, really no market. To the point where it was politically ok for congress to support art. The NEA gave out individual artist grants and the New York State Council gave grants and even New York City gave out individual artist grants. It was welfare to artists because the economy was so bad.

So, you know, there’s nothing to say that we won’t return to that. Walking around Chelsea it looks like a speculative bubble to me. I don’t see how that amount of fancy real estate can be sustained.

SMS:

Do you think that the difference between the 80s and now, that the 80s were predicated on real property, or hard industrial market, like oil, where as now we have a market that is dictated more by an intellectual property structure where a CalArts grad, any college grad, or heck, any high-school kid can get an idea, go online, and they’re the creator of the next Simpsons. Now one can invest in something that doesn’t have a physical limit.

TL:

Sure, it can be something that may be so significantly different that it has changed the situation, and so the market and creative ideas can be more limitless than I’m thinking.

SMS:

Hmmm, there’s…

TL:

But not probably…

SMS:

[laughter]

Not that?

TL:

Well, there’s a market for creative ideas and an art market, but again, to go back to the Orange County Museum show that I haven’t seen so it’s good to comment on. If everybody is making work that is fairly constrained, physically and conceptually, then nobody is actually developing the creative property side of things. Kids who make reliable goods for a flourishing market can do well, but the kids who are going to make a ton of money are going to be thinking very differently. And probably not taking part in the conventional art world as we know it.

SMS:

I was thinking more from the perspective of the buyer, the Gates’, the Nortons…

TL:

Sure, if people make enough money sure. But even then if we enter into a domestic environment in which our entire entertainment environment is increasingly digital, if the i-Pod model is capturing movies and TV shows and we’re looking at them wherever we want, then visual artists are going to have to figure out how to insert themselves into this environment, or how to maintain a viable alternative. Like I said, I’ve been painting a long time, and I very much like the idea of the museum environment where you go and contemplate something. I continue to hold that there’s a value to that. I think that the gallery/museum can offer a useful a place of refuge.

Another thing I’ve become interested in over the last 10 years is gardening.

SMS:

Hmmmm…

TL:

The great thing about a garden is that it’s also a place of refuge; it’s a place where you go and do some digging when things are getting frustrating. It’s pleasant and real and satisfying, and some months later you get a reward: a tomato or a blossom. In the meantime you’ve created this environment in your backyard that is peaceful and pleasant to be in. I think there’s a way in which art, or some aspect of art, has a way of doing something similar to that. I think it’s a genuine value, different from the cutting edge where visual representation intersects with politics. As I said, I’m getting older.

SMS:

Interesting. That’s something I’ve been thinking about. Ironically for me, by going to law school, it created a space like a garden, where I could meet a client and a month later you can resolve their problem: there’s no critic, no one else between you. Sure, at times it depends on juries or judges, but there’s another type of reward, to a large extent separated from art, from the art world, and from the art market.

Let’s go back to CalArts. One thing I noticed this past spring at Harvard Law School was how much power it has in terms of how law is taught in the U.S. and internationally.

TL:

Didn’t they change their first year structure, their foundation year?

SMS:

Yes, completely. One thing that I heard was that there was a movement in the near past to change law school from a three-year program to a two-year program. I believe this was a fairly successful drive, gathering votes from all U.S. law schools except Harvard. Harvard vetoed this idea and so it didn’t pass. When I hear these stories I relate them to CalArts, because no matter where I’ve taught I meet people who attended CalArts and are either teaching there or have taught there. It’s like law schools, most law professors come from Harvard. What is it about CalArts that makes it so successful and influential?

TL:

What makes it so unique is its point of origin. By luck or happenstance it came into being in the late 60s. An extraordinary thing happened at the beginning; the people who were hired to create it, Robert Corrigan and Herb Blau, the president and provost, were appointed by a board of Disney and Nixon hangers-on, among the most conservative, right wing fixer in Southern California at the time. They were thinking of the school as an entertainment complex, a destination like Disneyland, and a feeder school for the industry, and for some reason they hired these two guys who came out of progressive, experimental theater, and gave them carte blanche. I imagine they did the research, came up with these two as ‘the best in the business’, and decided, as good, hard-headed businessmen, to empower them to make the best art school. And so the two of them set to work. They in turn persuaded all these amazing characters to come in and create the schools, not just the art school, but all of them — Mel Powell in music, Sandy McKendrick in film — and an amazing group of people who were all dedicated to a non-mainstream way of thinking. They in turn hired faculty who were also thinking differently, and in the art school’s case there was Allan Kaprow, Michael Asher, John Baldessari, Doug Huebler, a group of conceptual artists who were rethinking art and thus how you taught art. It would make no sense to them to set up a school that went about its business in the traditional way.

These decisions and hires set in motion the paradigm, and now everyone that comes in to teach here is brought in with that in mind: the 70’s revolt of Womanhouse, where it was not just about rethinking art but about rethinking the way women should interact with the idea of art. During the 80s it was about making it more political in a theorized way. And in the 90s things became more concrete, more concerned with making art again, and also with connecting directly to the various communities of the city through an agency like CAP. In this evolving way everyone continues to be very conscious about working with an animating legacy that is different from the way that other art schools were set up.

You know, every year, in fact next week, I go to the annual conference of NASAD (National Association of Schools of Art and Design), and that’s where I get to meet all of my fellow deans, and you know, for the most part they are a conservative bunch. Most of them stopped being artists or even teachers when they moved on to administration on a full-time basis. But we all believe in the importance of art, and of teaching young artists how to make art. Most of them, however, believe on some fundamental level, that art should be a traditional kind of thing taught from a foundation level of drawing and painting developed at later stages within the older categories of painting and sculpture, with new media as another medium, rather than trying to combine them. And I find consistently at these meetings that they say: “Oh Tom, you and CalArts, you speak for that other thing, that interdisciplinary thing. We like to learn from you but we won’t change to become you, but we’ll steal the bits that work for us…new media, yeah, we’ll try that, but let’s not integrate it in a way that has painters also making video, no we’re not going to do that. We’ll allow video, or we’ll allow digital work, but we’ll keep them in boxes.”

So CalArts has this position that is kind of crucial, that is recognized as a place where you can think differently. Like I said, I think we’re in a much more conservative cultural moment than we were in the 60s and the 70s, or even in the 80s, and so the national debate in art schools is back to basics, that all art students should spend at least one year learning serious drawing, how to draw, but not asking how to draw what? What’s that? What do you need? And that question can’t be answered because everyone knows what it means to draw…[endless laughter]

SMS:

I think we should probably stop there…[laughter]…

Bio:

Thomas Lawson has shown paintings at MetroPictures, New York, Anthony Reynolds, London, and the Richard Kuhlenschmidt and Rosamund Felsen galleries in LA as well as in many public institutions around the world. Surveys of this work have been mounted by the San Diego Museum of Contemporary Art at La Jolla, the CCA in Glasgow, and the Battersea Arts Centre in London. He has created temporary public works in New York, New Haven, Glasgow, Newcastle, and Madrid. His essays have appeared in such journals as Artforum, Art in America, Flash Art, frieze, and October, as well as numerous exhibition catalogues. From 1979 until 1992 he and Susan Morgan published and edited REAL LIFE Magazine. He has organized and selected many exhibitions, for such venues as Artists Space, PS1, The Clocktower, and White Columns (all New York), National Touring Exhibitions/Hayward Gallery, London, and the Los Angeles Municipal Art Gallery. His work has been collected by the Brooklyn Museum, Centre Georges Pompidou, Paris, Arts Council of England, Scottish Arts Council, Emory University, University of Colorado at Boulder among others. He has received 3 Artist Fellowships from the NEA, project support from Art Matters, Inc, and Visual Arts Projects, and a residency fellowship from the Rockefeller Foundation and the Ucross Foundation. He has taught at SVA and RISD, and now teaches at CalArts, where he has been dean of the Art School since 1991. In 1999/2000 he worked with the architectural partnership EMBT/RMJM to identify the role of the visual arts in the design of a new parliament building for Scotland. Since 2002 he has been co-editor of Afterall journal, and recently saw a book of selected writings, Mining for Gold, published by JRP/Ringier, Zurich.

This interview took place over email exchanges between December 20, 2005 and January 3, 2006. In this interview, Law Professor Eduardo M. Peñalver talks in part about property law, the legal differences between real and intellectual property, and the relationship of these discourses to art and cultural production.

In trying to ascertain the relationship between law and cultural production, I decided to approach scholars and practitioners who had practical, theoretical, and philosophical experience with the impact of law on art. Although there are many art theorists, art historians, and art practitioners who have a wealth of experience in their respective fields, I have chosen to approach this investigation from the viewpoint of a field traditionally excluded from studies of visual culture, art, and art history. I can only hope that this experiment proves me right. — Sergio Muñoz-Sarmiento

.

Eduardo M. Peñalver is Associate Professor of Law at Cornell Law School, and in the spring of 2006 was a Visiting Associate Professor of Law at Yale Law School. Professor Peñalver taught at Fordham Law School from 2003-05, and received his B.A. from Cornell University in 1994, an M.A. from Oriel College, University of Oxford in 1996, and Juris Doctor from Yale Law School in 1999. After graduating law school, Professor Peñalver was a law clerk to Hon. Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, and law clerk to Hon. John Paul Stevens of the United States Supreme Court.

Professor Peñalver’s focus is primarily in property, land use, and Catholic social thought. He has published widely in law journals and periodicals, including The Concept of Religion, Yale Law Journal; Is Land Special?, Ecology Law Quarterly; Regulatory Takings, Columbia Law Review; and Property as Entrance, Virginia Law Review. He co-wrote Property Outlaws with Fordham Law Professor Sonia Katyal.

Professor Peñalver may be reached at: eduardo-penalver@lawschool.cornell.edu

Interview:

Sergio Muñoz-Sarmiento (SMS): Professor Peñalver, thank you for taking the time from your busy schedule, and during this time of year, to answer some questions regarding property, social relations, art, and culture. Let me begin by asking a general and broad question: What is property, and has this definition/concept changed in the last 100 years?

Eduardo Peñalver (EP): That’s a very tough question, and one that continues to vex property scholars. But I’ll side-step a great deal of complexity by falling back on the standard definition of property that law school students are taught in the first year. Property law is the area of law concerned with the way in which we allocate among people the rights that they enjoy with respect to things in the world. I would point to two big changes in the property area over the past 100 years, though I’m not sure they are really changes in the law. One is the (continuing) decline of property in land as a source of economic power. As our country has moved from an agricultural economy to an industrial economy to an information economy, land ownership’s role as a source of wealth and power has steadily eroded. The second, related, development is the rise of intellectual property.

SMS:

You hit on two issues that I wanted to touch on: property as a form of social relations, and intellectual property. Perhaps we can tease them out throughout this conversation. Your first point leads me to Joseph Singer’s view of property. If I understand Singer correctly, his view is one that departs from traditional notions of property by declaring that property is not simply individual liberty (the right to do what one wants with one’s property) and little intervention by government over one’s control of one’s property. I believe he defines property as an entity formed by entitlements and obligations. This seems like a radical departure from conventional definitions, primarily because it seems to immediately invoke a socially conscious mode of ownership, which to me seems counter-intuitive to a capitalist system and of course maximum profitability. Is Singer’s theory viable and thus directly applicable to contemporary, and may I add, “real” material relations? The connection to the current hot issues surrounding copyrights seems apropos here, especially since the concept of “fair use” seems to be narrowing, if not altogether dying. My immediate concern is that if property has shifted from land to intellectual products, the possibility of a “taking” by non-governmental forces (let’s say a type of resistant force) is diminished, if not also altogether decimated. Am I wrong?

EP:

I don’t think Singer’s view of property is so radical. Its focus on relationships among people with respect to resources shares many features with certain law and economics approaches to the subject. Though, as you say, it is inconsistent with more rigidly libertarian approaches. If anything, Singer’s theory becomes more and more relevant as we shift away from traditional notions of property based on the model of economically productive land. As to whether government takings are as much a concern in the IP context as they are in the context of land, it’s an interesting question. Virtually all of the takings cases at the Supreme Court have involved land. The one exception that comes to mind is the Ruckelshaus v. Monsanto case. Though I am no IP specialist, IP strikes me as a very fragile sort of property, in part because IP rights are so expansive and in part because they are so easily violated. On the other hand, the nonrivalrous nature of information seems to make the harm to IP owners of such violations much harder to measure and, in any event, more incremental.

SMS:

THis is really interesting, and you’ve said so much that we can go in many directions. I’d like to connect it somewhat to artistic practices and cultural production. Your point on takings in relation to land and IP in particular raises a couple of questions. One, do you think that the “fragile nature” of IP, as you call it, makes it easier for visual artists to appropriate copyrighted and trademarked material for the sake of socio/political critique? In other words, I can imagine a visual artist may “take” such material from the web or a local library, but a sculptor or architect cannot “take” land, at her will and without permission, for the sake of her project. Does this call for a more experimental and/or radical approach by artists, especially in relation to land?

Second, and related, it seems that many visual artists (let’s stay within the U.S.) have opted for two spaces of occupation: the internet or traditional museum/gallery spaces. Do you see other potential uses of real property that have been neglected by artists, cultural producers, and architects, and if so, why is this so? And is this simply the fact that in the end, law trumps art?

EP:

It’s much harder to take someone’s land, although it can be done, as the doctrine of adverse possession demonstrates. And public places permit some such expression. See for example, this interesting case of artistic appropriation of public space to make a point about the need for more open spaces in San Francisco, http://www.rebargroup.org/projects/parking/index.html#). Finally, there are many, many illegal ways in which to appropriate private (real) property for artistic expression, though the artist takes great risks in making use of them. The problem with real property is rooted in its physical nature. IP can be “appropriated” much more easily and with less apparent harm to the owner. My manipulation of, say, a digital copy of your copyrighted work for my own expressive purposes does not deprive you of your ability to use the same work (or at least not in the obvious way that my use of a piece of land prevents you from making an inconsistent use of that same piece of land). My colleague and Fordham, Sonia Katyal, has written about this extensively. This is not to say that there is no harm to the copyright owner when other people violate his copyright, but the harm is not nearly as obvious as it is in other contexts. In fact, many acts of expressive appropriation in the IP context (the DJ Dangermouse mashup of the Beatles and Jay-Z comes to mind or, more recently, Dean Grey’s American Edit) may actually at times enhance the value of the appropriated property for the owner by (re)raising the profile of the original work.

SMS:

I’m aware you are currently traveling, and my apologies for a late reply. I was caught last night (Wednesday, Dec. 21st)on the Texas/Mexico border. Interestingly, this situation touches upon our talk of digital space and real space. A family member was contacted by a government office in Texas and advised that her government benefits were minimal because she owned land in Chihuahua, Mexico. However, this relative of mine had sold this land in 1977 (yes, 1977). The buyer has failed to file the land tranfer in Mexico (entitlement and obligation?), and thus the Texas office accessed, through the internet, public records in Mexico. It’s hard to imagine this issue happening even a few years back. Or is there a more pertinent and “real” connection in the future between “real” property and digital space? The Rebar project is a perfect example of what we’re talking about, thank you for pointing it out. Perhaps I’m still under a belief that an artist, or artists, should be informed about legal issues in order to make work/projects that intervene and/or expand legal spaces/issues. Perhaps not. Do you see a moment in the future when legal scholars and artists can work together to make projects such as Rebar more visible and powerful, and thus geared toward legal change?

It seems to me, and I believe you have stated this somewhat explicitly, that you believe “real” property is more important, or crucial, than intellectual property (IP). I tend to feel this myself, although perhaps it is that “real” property carries more weight in the political arena (Kalo v. City of New London) whereas IP may be better suited for financial equalization (your example of DJs and appropriation comes to mind). Do you think that perhaps this connection between “real” property and digital space, if it isn’t already here, will come about because of what is known in legal academia as “legal fictions”?

EP:

I don’t think that “real” property is more important than IP, although I suppose the answer to that question depends on what sort of importance you have in mind. In terms of sheer financial importance, I would venture to guess that the opposite is true. I just think that the characteristics of real property are sufficiently different that it poses a different set of regulatory challenges than IP. The key distinction, in my mind, is the finite quantity of land. This, and the rivalrous nature of many land uses, means that private ownership of land probably needs to be both more exclusive and more regulated than other forms of property. As for whether there will come a time when artists and lawyers should work together, I think that time is already here. The rebar project is a good example. Some of the urban squatting movements of the 80s and 90s demonstrated a similar potential for synergy. My guess is that the resistance to such cooperation comes more from lawyers than artists. Lawyers have an unfortunate tendency to want to lead or dominate the movements in which they participate and to channel strategies towards litigation and other formal mechanisms of legal reform. Thurgood Marshall’s opposition to the student sit-in strategy in 1960 comes to mind. But lawyers could learn a lot from artists about alternative strategies for legal change.

SMS:

And perhaps artists can learn from lawyers and legal scholars on more practical, viable, and direct forms of intervention. Professor Peñalver, I would like to end this conversation with another broad question, somewhat related to our initial point on Singer and social relations. Can you describe, or perhaps give a contemporary example, of how property materializes or becomes a form of social relations, perhaps in both a positive and negative way? Lastly, what is on your I-pod?

EP:

I’ll give you two examples, both from the civil rights context, because that’s what I’m thinking about at the moment. First, on the positive side, I think the lunch-counter sit-in protests of 1960 sparked a re-imagination of the concept of private property in way that permitted Americans to understand non-owners as having a (property) right to access places of public accommodation. The recognition of this right, which we might think of (and which Singer has characterized) as a property right, which is formalized in anti-discrimination laws, in turn incorporated black Americans into the commercial fabric of our society in a way that had not previously been possible, particularly in the South. And this commercial integration has, I think, done much to break down racial-caste barriers. On the negative side, I would point to the pernicious way in which the persistence of racial discrimination and class segmentation in housing property markets combines with the power of neighborhoods in the construction of social identity and relationships. Extreme racial residential segregation has proved difficult to eliminate, and extreme class-based residential segregation appears to be worsening. The consequence, I think, is a tendency of our residential patterns to reinforce negative race and class based identities, stereotypes, and suspicions in a profound way, a problem that is exacerbated by our tendency to distribute a great many goods (e.g., early age schooling) on a neighborhood basis.

I have a pretty eclectic mix on my ipod. It leans heavily towards 80s pop, hip hop, and salsa/merengue. I just added the Garden State soundtrack, which I love.