What gives money or art its value? Ask J.S.G. Boggs.

From Suite 101:

Although the United States Treasury Department has very strict and serious laws about the counterfeiting of currency, there is one law that is above them that they seem to recognize and that is the artists freedom of expression.

J.S.G. Boggs (born Steve Litzner) is most famous for his hand drawn, one-sided United States bills that he then exchanges for goods and services just like real money. His drawings show the hand of a master draftsman so much so that he has been arrested for his counterfeiting in England and Australia. Boggs was acquitted in both cases on the grounds that he was creating art and not forging or counterfeiting currency and trying to pass it off as such.

But Boggs’ creations are as elusive as his philosophy about the art he creates. He does not consider the drawn bank notes as money and they are commonly referred to as Boggs Notes, Boggs Bills, and Boggs Dollars. Boggs considers the art part of his work when he exchanges the bills, receives change, and receipt and goods. He then is willing to sell the receipt, change and goods as the art, not the original bill. If a collector wants a hand drawn Boggs Bill they will have to track down the lucky recipient themselves.

While Boggs art work could be considered hard to collect and esoteric he is taken seriously by the art world. The proof? His work is in the collections of the British Museum, the Art Institute of Chicago, the Museum of Modern Art, and the Smithsonian Institution.

One of my favorite books on the “value” of money is Lawrence Wechsler’s Boggs: A Comedy of Values.

Shepard Fairey, Creator of Iconic Obama Image, Speaks About His Art

Are lawyers and artists completely different and atagonistic?

Wendy Duong of the University of Denver Sturm School has written an article entitled “Law Law is Law and Art is Art and Shall the Two Ever Meet? Law and Literature: the Comparative Creative Processes.”

It’s a fascinating article and well worth dowloading and reading, but here I’d like to take issue with one of her principle points.  As she puts it in the abstract to her article:

The two disciplines, Law and Art, remain divergent and incompatible in three core aspects: (i) the mental process of creation and the utilization of facilities, (ii) the work product or output, and (iii) the raison d’etre of law versus art. The Article points out that the mental process and utilization of facilities inherent in law has little to offer the creation of art, and the two creative processes are antagonistic to each other. In fact, the rationality and logic properties of law the objective of rendering certainty to uncertain future outcomes so as to achieve and maintain order — will interfere with, and can even destroy, the creation of art.

I will confess that I would not generally consider the product of legal practice “art” and it would be a stretch to fit even certain extraordinary legal products art –  Perhaps the Declaration of Independence? The Constitution? Certain influential legal opinions?)

But does law “render certainty to uncertain future outcomes”?  I passionately believe that an enormous part of the law does not do that at all, that what in fact it does is the kind of activity Ms. Duong attributes to art.

Life is infinite.  Each case courts decide are intended first, of course, to resolve the specific cases they are resolving.  But to the extent they render opinions, they are only contingently trying to address the future, and they know those contingent efforts are subject to irrelevance under new circumstances.

Moreover, life is constantly changing, and the law has to grow out of the material conditions it is always striving to govern.  In doing so, it is constantly striving to envision the future material conditions the law might apply to and to anticipate those conditions in making law.  Lawmakers then do not decide with a certainty what law they want to impose from above on the future; they collaboratively work out the best approach to whatever they can envision, knowing all the while that the law may well have to change in the future.

The practice of law too is the constant telling of stories — stories to persuade, stories to inspire, stories to justify visions of the future.  In doing so they are as constrained as artists in the “realities” available to them.  Lawyers are artists.  They may have to make decisions, but that doesn’t mean that in getting to those decision-making points they are not as creatively engaged as artists.

Finally, if lawyers aren’t engaging in the same mental facilities as artists, I don’t have a clue what mental processes artist and lawyers engage in.  I suspect if those ways of thinking are entirely divorced from one another, the lawyers aren’t practicing law well and the artists are not producing good art.

And if artists’ visions are irrelevant entirely from decisions people make in life (You must change your life.), what is it?

Law in Art/Law as Art

I’ve taught in law schools for 13 years. Before that I practiced in New York City for over 11. What I’ve largely found is that lawyers have little use for law professors, and law professors have little use for lawyers.  Where I am this year, the University of Detroit Mercy Law School, is an exception to this rule, and a rare one.  The far more common, if strange, disconnect between the academic world and the world of practice is illustrated by the academic field known as “Law and LIterature.”  Wikipedia accurately describes Law and Literature as both the study of law in literature and of the literary characteristics of legal writing.:

The law and literature movement focuses on the interdisciplinary connection between law and literature. Believed to have originally begun as a subcategory of jurisprudence, the movement encompasses the complementary ideas of law in literature and law as literature.

The problem, as Daniel J. Kornstein, a writer and a lawyer, is that the law and literature movement has had no impact on the practice of law:

The greatest shortcoming in Law and LIterature to date has been its failure to reach and engage the practicing lawyer. For the most part, Law and Literature has remained firmly entrenched in legal academia, its realm of origin. The shirtsleeve lawyer is essentially untouched.

I have from the start intended for this blog in large part to remedy this lack of connection between literature, and other arts, and the practice of law. Just as the Law and Literature movement examines both law in literature and law as literature, I try to focus on law in creative endeavors and law as a creative endeavor. I suppose part of what drives me to do so is that I have taught primarily first year law students, and they, like most people, have given very little thought to the art they have encountered and only begin under my watch to understand that, perhaps primarily, I am training them to be artists, not technocrats.

Law as performance

The courtroom as theater is such a commonplace notion that it has even been the subject of installation art, including the installation pictured here, “Set: Room 302,” a collaboration between Judy Radul and Geoffrey Farmer. Commenting on the piece, Richard Fowler, a lawyer, makes explicit some of the ways both the artists and he himself as a lawyer treat a trial as, literally, a performance:

Room 302 uses a courtroom to convey, through performance and the setting itself, ideas about truth and reality. The roles of the lawyer, witness, guard and court reporter are enacted and observed reading from scripts. Occasionally, two unseen voices can be heard directing the performers. With the court reporter overseeing the performance, scenes are redone, sounds and events recreated. In essence, a real event is recreated by the performance to produce a new reality; we judge the past by what we are shown in the present.

Trials are a process by which we attempt to recreate the past in the present so that judges can decide what happened. Rules of evidence guide the process and ensure the integrity of the recreation. For example, evidence must generally be a first hand account – the witness must have seen or heard the event themselves. Rumour, gossip, stories passing from one person to another, inferences, opinions – the ingredients of real life – are not admissible. Conventions and formalities govern the performances of the lawyers. The process is grounded in solemnity and dignity: the judge and lawyers wear robes, the judge is ‘my lady,’ and opposing counsel ‘my learned friend.’ . . .

The courtroom is like any theatre and the trial like any performance. The lawyers learn their lines and practice their performances. Witnesses are given advice about how to play their roles. Court clerks guide the performance, directing witnesses, introducing the judge and providing some narrative of events. Sheriffs usher the audience, provide security, and open and close the room.

It is within this context that I, as a defence lawyer, defend people. The prosecutor directs her witnesses to describe an account of a past event; I attempt to throw doubt on that account. Does the witness’ account make sense, is it reliable, is it exaggerated, or is the witness lying? I attempt to unravel the carefully prepared performances of the witnesses, to move them from their script. The witness is now improvising. Without a script frailties of perception and cognition are soon revealed, sources of contamination exposed, and bias or prejudice indicated. The judge relies on these raw ingredients to adjudge the performance; was it genuine, impartial, reliable, credible or exposed as exaggerated, embellished, unreliable and incredible?

My difficulty is convincing my students law isn’t just the rules, but a performance constrained by the rules, and that they have to not only learn the rules, but also then learn how to integrate the rules into meaningful depictions of the real life they and everyone else live outside the classroom

Art exposing law: Pirates of the Amazon

Here’s some art trying to express the tensions between technology allowing the instant worldwide dissemination of a work and the law that evolved to deal with an entirely different set of technologies. DailyTech reported that a Firefox plug-in named “Pirates of the Amazon had been developed that allowed its users to immediately identify free alternative online sources for any product they found on the Amazon.com website. Within a day, Amazon’s lawyers had filed a takedown notice. Subsequently, someone put up a website stating that the plug-in had been created as an art project meant to illuminate issues raised by today’s “media culture”:

“Pirates of the Amazon” was an artistic parody, part of our media research and education at the Media Design M.A. course at the Piet Zwart Institute of the Willem de Kooning Academy Hogeschool Rotterdam, the Netherlands. It was a practical experiment on interface design, information access and currently debated issues in media culture. We were surprised by the attentions and the strong reactions this project received. Ultimately, the value of the project lies in these reactions. It is a ready-made and social sculpture of contemporary internet user culture.

One day after publishing we received a take down request by the legal department of Amazon.com.

This work was made as a trimester assignment in our study course, under the supervision of our tutor Denis Jaromil Rojo and our course director Florian Cramer. This page is now the documentation of our study work as required by the course.

To further confuse matters, DSLReports.com wonders if the claim the plug-in was an art project was “simply a post-release attempt by the plugin’s author to cover his legal posterior.” I would suspect, though, that the project really was an art school endeavor. Denis “Jaromil” Rojo “is an artist and a FOSS hacker. . . . popularly known for Dyne:Bolic (http://www.dynebolic.org/), a Live CD distribution . . . . As a programmer, he is author of several free software that present new possibilities for online radios. Jaromil is identified as a “tutor” for the 2008-09 academic year on the Piet Zwart Institute’s web site, and Florian Cramer is identified on the same site as the “course director of the Media Design M.A. programme.”

ADDENDUM: Florian Cramer writes in the comments to thank me for the “balanced” coverage and to add that the indication the site was an art project was made clear on Pirates of the Amazon from the beginning.

Buying art? Buyer beware!

I teach Contracts.  One funny thing about the topic is that the “law” that applies to any given transaction is the contract itself.  In other words, if the words of the agreement (which can be written and/or oral) determine the outcome of a given situation, those words almost always control.  There are very few “immutable” contract rules — that is, rules that cannot be changed by agreement of the parties to the contract.

Thus, much of teaching contract law concerns the interpretation of contracts and “default” rules — that is, rules that apply to situations the parties have not agreed about.  Perhaps that is why I so often like using cases involving the sale of art in my classes — they so often require the understanding of the default rules.  As Joshua Kaufman, a lawyer in D.C., recently pointed out in a talk at the Smithsonian Museum, art transactions typically involve the least paperwork of any sort of commercial transaction:

“The art business is unique,” Kaufman said, “in terms of paperwork and due diligence. It has the least amount of paper of any commercial transaction.” That means you go into a gallery, buy what you like, and the dealer hands you a receipt for your purchase. Perhaps you even get a little paper describing the provenance. But buyer beware! The art market is filled with complexities, especially when it comes to auction houses.

Money’s value is at bottom dependent on our belief in its value, and art that illustrates this point is not counterfeiting

From Suite 101

Although the United States Treasury Department has very strict and serious laws about the counterfeiting of currency, there is one law that is above them that they seem to recognize and that is the artists freedom of expression.

J.S.G. Boggs (born Steve Litzner) is most famous for his hand drawn, one-sided United States bills that he then exchanges for goods and services just like real money. His drawings show the hand of a master draftsman so much so that he has been arrested for his counterfeiting in England and Australia. Boggs was acquitted in both cases on the grounds that he was creating art and not forging or counterfeiting currency and trying to pass it off as such.

But Boggs’ creations are as elusive as his philosophy about the art he creates. He does not consider the drawn bank notes as money and they are commonly referred to as Boggs Notes, Boggs Bills, and Boggs Dollars. Boggs considers the art part of his work when he exchanges the bills, receives change, and receipt and goods. He then is willing to sell the receipt, change and goods as the art, not the original bill. If a collector wants a hand drawn Boggs Bill they will have to track down the lucky recipient themselves.

While Boggs art work could be considered hard to collect and esoteric he is taken seriously by the art world. The proof? His work is in the collections of the British Museum, the Art Institute of Chicago, the Museum of Modern Art, and the Smithsonian Institution.

One of my favorite books on the “value” of money is Lawrence Wechsler’s Boggs: A Comedy of Values.

Could Thomas Kinkade assert a property right over his “style”?

Frank Pasquale writes that the painter Thomas Kinkade may be positioning himself to be able to assert copyright or trademark claims over people who allegedly appropriate his style. There are several problem that would face Kinkade. First, it’s difficult to protect a “style” rather than a “work.” Second, Kinkade’s style has been described as something less than an original one: Kenneth Baker, critic for the San Francisco Chronicle, barely conceals his contempt: “‘He has a vocabulary, as most painters do. And it’s a vocabulary of formulas, unfortunately. And he shuffles the deck every so often. Lighthouse, cottage, sea, ships, sky, so on, so on. Little bit of waves, so on, rocks. And you end up with this.’” Kinkade’s own instructions on how to make a film in his style may not belie this criticism that his “style” is little more than a simple formula:

Whenever possible utilize sunset, sunrise, rainy days, mistiness — any transitory effect of nature that bespeaks luminous coloration or a sense of softness.

Emphasize gentle camera moves, slow dissolves, and still camera shots. A sense of gradual pacing. Even quick cut-away shots can slightly dissolve.

[Make] references to my anniversary date, the number 52, the number 82, and the number 5282 (for fun, notice how many times this appears in my major published works). Hidden N’s throughout — preferably thirty N’s, commemorating one N for each year since the events happened.

There’s no question, though, that a court would hold that copying a Kinkaid painting whole would constitute copyright infringement, (Doing so in small, electronic form for purposes of commentary and criticism, however, would constitute non-infringing fair use.) Even maps, as Pasquale points out, are protected by copyright against wholescale copying, even if the underlying information they compile is entirely factual. That’s why mapmakers used to put fictional locations in obscure places on their maps — people who copied such maps whole would be revealed by the use of the fictional place. But can a “style” be protected? That would be a difficult position to maintain, especially given the legitimate influence any successful artist will necessarily have. Nevertheless, Pasquale concludes, “It’s a tricky legal question as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection when another is inspired/corrupted by it. Or what remarkable idiosyncrasy should be trademarkable.”

Should museums return antiquities to their countries of origin?

The headline on Stephen Litt’s piece in yesterday’s Cleveland Plain Dealer, “Analysis: Museums often pay the price for looted antiquities,” is misleading.  As Litt explains, it is more the exception than the rule that museums return antiquities to the countries from which those pieces have been looted.  Why?  “[I]f an object was looted, there will be no record of its existence. Many museums, including Cleveland’s, have collected and shown ancient works whose exact origins remain unknown.”

Nonetheless, the Cleveland Museum of Art recently agreed to send 14 objects back to Italy, where they’d been illegally dug up, cleaned, and restored before being put up for sale on a market that eventually lands them in museums around the world.  Litt explains that this agreement is part of a new wave of scrutiny museums are exercising over their collections.  Nonetheless, many consider the museums complicit in activities that are both illegal and immoral.  Cases such as the one involving the Cleveland Museum are the easy ones because there was clear proof the pieces were looted, not just an absence of documentation about where the pieces came from:

To experts such as Ricardo Elia, a Boston University archaeology professor and a close observer of the antiquities trade, such lack of documentation is proof that an object was looted. He estimated that as much as 90 percent of the antiquities purchased in recent decades by American museums are the product of looting.

But Timothy Rub, director of the Cleveland Museum of Art, said that lack of exculpatory evidence about an artwork’s origins doesn’t prove a wrongdoing was committed — or that the work should be relinquished on demand.

“If I’ve inherited as director custody of an object that doesn’t have a provenance before a certain date and somebody says, ‘It’s ours, give it back,’ that’s a pretty tough thing,” he said. “I’ve got to ask you to make a case.”

The difficulty of arguing such cases makes it unlikely that the recent wave of repatriations to Italy will lead to a vast purge of artworks from American museums.

Instead, if the negotiations show anything, it’s that museums, including Cleveland’s, are willing to part with antiquities only when foreign governments provide persuasive evidence connecting the works to recent criminal wrongdoing.

That’s a difficult threshold to reach, and it’s rare. The art bust in Switzerland, for example, documented the precise trail taken by specific objects from the looters who dug them up to the middlemen who cleaned and restored them, provided them with phony ownership histories and put them on the market.

“You may not see another case this dramatic for 20 or 30 years,” Elia said. “They found bags of Polaroid photographs and information from Hecht’s diaries.”

As I wrote in September in connection with the arguments going on over whether pieces like the Elgin Marbles and the Rosetta Stone should be returned to Greece and Egypt, Litt points out that antiquities are big, and illegal business, dominated by organized crime.

The life of the law is a life of art

Last night, I came back across the words(pdf) of my former professor, James Boyd White, that express eloquently my view of the common ground shared by artists and lawyers:

As I conceive it, the life of the law is . . . a life of art, the art of making meaning in language with others. Its goal, like that of other arts always imperfectly attained, is the integration into meaningful wholes of the largest and most contradictory truths – the incorporation into the case of what can be said on both sides of it, the recognition in our discourse of other ways of talking – all under the ruling requirement that what we say makes sense. The lawyer must know what the literary person knows, that he or she is always one person speaking to others in a language that is contingent and imperfect. And the excellence of mind required of the lawyer, like the excellence of the composition the lawyer makes, is integrative: a putting to work in the same text of as many of one’s resources and capacities as possible in an meaningful way.

Gerry Spence on being a lawyer and a human being.

Gerry Spence is as good a lawyer and compelling an advocate as I have ever witnessed. He now has a blog. If you’re interested in being an effective lawyer, it’s a must read. If you’re interested in how life really works, it’s just as important. I am pleased too that his views on certain matters are similar to mine. Here’s what he writes:

The trial of a case, in its simplest form, is telling a story jurors can understand. Yet most lawyers are taught little, if anything, about communicating with others. They are taught to deny their feelings and, at last, have so long shielded themselves against their feelings that many find it nearly impossible to get in touch with them. Yet justice is a feeling and jurors (as do we all) make their decisions based on their feelings.

Most lawyers know little about classical literature and history, have never written a poem, have never painted a picture, have never stood before an audience and sung a song, have never been permitted to confess their pain or their love, and, in short, have been denied the stuff of personhood. One need not write poetry or paint pictures to be a successful human being. But some intimacy with the arts and the language and its use and with right brain functions of feeling and creativity are essential to the development of the whole person. Little wonder that lawyers, disabled by all of the stifling, mostly useless mental exercises they have suffered, have trouble relating to jurors, much less to the rest of mankind.

Ruling Imagination: Law and Creativity

Art/Creativity or Craft/Skill?

I noted yesterday that whether any creative achievement can properly be described as the product of an individual is a question that arises naturally to a lawyer; law is fundamentally collaborative, and it is therefore easy for a lawyer to understand most or even all creative efforts as collective endeavors.

There’s another dichotomy concerning creativity that lawyers are also sensitive to: the dichotomy between “art” and mere “skill.”

Within the legal world, law professors who teach the most theoretical materials consider themselves “scholars.” They consider professors who teach actual lawyering skills (such as legal writing) and lawyers themselves as their intellectual inferiors. I imagine the attitude to be something like the way architects must view engineers.

The dichotomy has legal significance in the area of copyright. In order to be entitled to copyright protection, a work has to have some “creative” element. “[O]riginality is a constitutionally mandated prerequisite for copyright protection.”

Thus, achievements requiring enormous degrees of skill can be left without copyright protection. In a recent case, a court dismissed a copyright infringement lawsuit brought by Meshwerks against Toyota. Meshwerks had created digital models of Toyota cars for use in Toyota’s advertising. The digital models had substantial advantages over mere photographs because with just a few clicks of a computer mouse the advertiser could change the car’s color, its surroundings, its dimensions, and its styling. In the past, advertisers had to conduct new photo shoots of a manufacturer’s entire fleet of cars each time it made even a small design change.

Nonetheless, Meshwerks’ computer models were not entitled to copyright protection because they were mere models of the cars themselves. As the court stated (pdf): “Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. . . . works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world.”

I am of course familiar with the dichotomy between art and craft. Or is it “obvious that the strict demarcation between art and craft . . . exists only in the philosopher’s imagination”?