Joseph Beuys

Ruling in Germany’s supreme court on the rights to images of performance art favours museum

Beuys show can go on

North Rhine-Westphalia. The lengthy legal battle between Eva Beuys, the widow of the artist Joseph Beuys, and the Museum Schloss Moyland, in north-west Germany, took a surprise turn in late May when Germany’s supreme court rejected a previous German court decision in Eva Beuys’s favour. She began legal proceedings when the museum held an exhibition in 2009 that included a series of photographs by Manfred Tischer of Joseph Beuys, taken during a performance in the 1960s (The Art Newspaper, November 2010, p13). A Düsseldorf regional court ruled in 2009 that the museum had breached copyright; an appeals court in Düsseldorf last year upheld the ruling.

The disputed photographs document the 1964 work Das Schweigen von Marcel Duchamp ist überbewertet (Marcel Duchamp’s silence is overrated), which Beuys performed during a German television show. Tischer’s photographs are the only visual record. Beuys gave permission for the photographs to be taken but apparently did not authorise their display.

The case has potentially wider significance because of the burgeoning curatorial interest in historic material documenting performance art.

The disputed images are part of the museum’s 6,000-strong Beuys collection, which is considered to be the largest holding of his art worldwide. In a statement, the museum called the court’s decision an “important victory for the arts”, stressing that the ruling ensured continued public access to such works. VG Bild-Kunst, which protects artists’ estates, represented Eva Beuys indirectly in the case. In 2009, the Düsseldorf judge ruled that Tischer’s photographs were an “inadmissible deformation of the original work” and infringed the work’s copyright. The museum faced a potential fine of €250,000 if it redisplayed the photographs.

“It’s unquestionable that if you photograph a work, it’s an ‘adaptation’ of a piece. You therefore have to clear the copyright of the photographer but also the copyright of the adaptation [from the artist],” says Anke Schierholz, the company lawyer at VG Bild-Kunst, adding that she is concerned about performance-related works. “The artists are now in the hands of these documentarists,” she says.

Asked if the company intends to continue pursuing the case, Schierholz says that “taking this to the constitutional court and saying that it infringes expression would be a step too far”.

Daniel McClean, a specialist in art and cultural property at the London law firm Howard Kennedy Fsi, welcomes the latest court ruling. “This is a very sensible judgment,” he says. “Photographs that record performance works do not generally qualify as adaptations under English law. Fragments of documents recording performances should not be prevented from being exhibited for this reason. It is highly unlikely that this case would have got off the ground in an English court.” The leading performance artist Marina Abramovic declined to comment on the case.

How the ruling will affect the wider art world remains to be seen. The genre is gaining momentum; the Tate’s new spaces for performance and video art, housed in former underground oil tanks, opened at Tate Modern in London last summer. Institutions such as the Museum of Modern Art and the Whitney Museum of American Art, both in New York, have found, while researching their collections, that they hold large amounts of historic material connected with performance, from drawings to photographs and writing.

Originally appeared in The Art Newspaper as 'Beuys show can go on'

Appeared in The Art Newspaper Archive, 248 July 2013