Civilization and Contemporary Art – Part II

Yesterday in the first half of this two-part blog post, we explored the question of why a lack of respect for property rights among certain contemporary artists and their aficionados is a departure from some of the basic principles of our civilization.  Today we look at a different, but not unrelated, aspect of how contemporary art and civilization interact.  Specifically, I would like us to think about how much residual right should an artist have in their work?

The Visual Artists Right Act (VARA) was passed by Congress back in 1990, and you would be forgiven for never having heard of it, gentle reader.  In a nutshell, the law was designed to protect artists from having their name attached or detached from works of art without their permission, and from having their artworks significantly defaced or vandalized during their lifetime.  This latter protection includes work which they themselves no longer actually own.  It is in effect largely a moral law, rather than a commercial one, but its application can have significant financial implications.

Back in 2008, mural painter Kent Twitchell received a $1.1 million settlement under VARA from the Federal government and private contractors, who had painted over one of his works, a monument to pop artist Edward Ruscha, without his permission.  The mural was located on the outside of a government building in Los Angeles which was being renovated, and no one contacted Twitchell to let him know that his painting was being destroyed, either to allow him the opportunity to have it removed or for him to seek some sort of legal remedy to prevent its destruction.  Whatever one feels about the art in question, or the size of the settlement, we can certainly understand why an artist would be upset to see something he created being destroyed.  But what happens when an artist decides that the laws protecting his work do not go far enough?

In an article published yesterday in The Art Newspaper,  a curator claimed that prior to a retrospective at the Metropolitan Museum of Art back in 2011, artist Richard Serra made a number of changes to works which had been lent to the exhibition.  In some cases, Serra re-created works of his which had been lost or irreparably damaged, and rather than list their new creation date insisted on dating them from the time when their predecessors had been created.  It was also alleged in the article that Serra threatened a private collector that he would “withdraw” a work of his which was owned by the collector from the owner’s collection, if Serra was not allowed to make the changes he wanted – a charge Serra himself denies.

Serra is arguably among the most prominent contemporary artists working in America today; his works are sought by collectors and museums all over the world.  To be frank, I loathe his work.  Yet let us remained focused not on the man’s art, but on his mindset.  To that end, I found this quote rather telling:

Serra says it is not important whether audiences know which version they are seeing. “There’s no aura of originality because it’s an anonymous surface. It’s a difference without a value. I try to keep surfaces as anonymous as possible.”

To re-create a work of art and then back-date as per Mr. Serra is simply ludicrous, and insulting not only to art collectors, museums, and historians, but also to future generations, who will have to try to figure out exactly when he created what.  If I wrote you a letter today, but dated it to October 12, 1992 because I am copying a letter I wrote you then, does that make the result an actual letter from 1492?  Of course not.  So to argue that re-creating a lost work and back-dating to the past, rather than in the present when it was actually made, is completely nonsensical, and frankly rather disturbing.

This bit of irrational art-speak nonsense on the part of Mr. Serra aside, the really interesting contrast here is between the Twitchell case and the Serra incident.  The former involved the destruction of a public work of art, owned by the public, while the latter involved a work owned by a private individual.  Under long-established principles of our law, a private owner has at least a reasonable expectation that he can do what he wants with the property in his possession to which he owns clear legal title.  It appears that what some contemporary artists are attempting to do, under VARMA and similar laws elsewhere, is to assert that they retain a type of ownership which they can assert at any time they see fit, even once they are no longer the legal owners of one of their works.

Throughout art history there have been examples of artists who, after one of their works leaves their hands, have asked the new owner if they can have the piece back, in order to make some changes or repairs.  Whether or not they are granted this request has always depended largely on the good will of the owner.  While VARMA tries to offer some protections, out of interest for preserving the artist’s reputation, clearly this law was not intended to allow an artist a right to take back possession of his work.

Imagine that you were fortunate enough to possess an original work of art by a major living artist, who one day knocked on your door and insisted that he come in and see how well you were taking care of his work, and that he be permitted to carry it away so that he could make some alterations to it.  You would be well-within your rights to call the police, but then what would the courts ultimately decide?  Do you actually own the work of art, or do you simply possess it in some sort of bizarre tenancy in common?

This is now a serious question, as ridiculous as the situation may be, because more and more artists like Mr. Serra will be using this law to assert what they believe this law gives them, morally.  There is a growing perception among some contemporary artists, and the collectors too afraid to challenge them, that artists have a right to reclaim their work from whoever has subsequently legally purchased it.  If this were to become legal precedent, it would be so outrageous a development in jurisprudence as to call into question many aspects of our real property system, and all for the sake of some very egotistical, well-paid artists with the deep pockets necessary to bring such claims.

As is so often the case historically, the art world is ahead of the curve when it comes to how society is going to change over time.  Recognizing that this is the case, it must be said that far too little attention is being paid to what is going on in contemporary art by those who are simply on the lookout for the next outrageous act of anti-Christian blasphemy.  By staying so narrowly focused, they miss the truly subversive thinking that is going on right alongside such works.

That being said, in considering these matters it is important to point out that not every artist working today believes that the ideas and behavior described in these blog posts are legitimate ways of either thinking or behaving.  I am fortunate enough to call a number of very talented, professional artists my friends, and none of them would behave like the people described in these articles.  Nor should you assume that merely because an artist does not create works portraying recognizable subjects, that they are out to destroy Western civilization.  We will leave that task to Planned Parenthood.

Rather my intent here, as is always the case in my writing, is quite simple: to encourage you to go educate yourself.  And should you find, upon further investigation, that you completely disagree with my concerns, then by all means please come back and engage me in discussion, and tell me so.  For it is only by shedding light on this type of thinking and behavior that civilization can be prevented from crumbling into anarchy.


“Monument to Ed Ruscha” by Kent Twitchell (1987) [destroyed, 2006]
Job Corps Center, Los Angeles

Here Comes The Judge

The world in which we live in is becoming less and less formal as each decade proceeds. The fact that I did not have to wear a business suit to work today for example, despite being a member of the white-collar world, is something which my grandfather’s generation would have found unthinkable.  Yet even though for the most part Western society has become much more familiar and informal than previously, there are still vestiges of formality which remain in practice of which we should take note, and which I see as a good thing. At the same time we also have to be careful not to put a too-rosy glow on the past. Human society always needs to continue to try to do better, if indeed it is to continue at all.

Yesterday afternoon I was in court for some preliminary matters involving a case coming up for trial, and during the course of the meeting, the judge had to come in and out of the courtroom several times. As is customary, the other attorney and I stood and sat when she entered or left the room, or when she addressed us, or when we had to address her.  While this may sound a bit odd, even though I have conformed to this practice before a judge many times, there was something about it yesterday which particularly struck me, and touched my heart a bit.  Keep in mind that there is no law which mandates that we show this level of deference to the judge, and we are not doing it because of who she herself is, but rather out of respect for the law, which is what she represents.

There is something patently civilized in recognizing the fact that another is worthy of a physical demonstration of respect, which unfortunately has been watered down in contemporary society.  The feminist movement for example, left us in a quandary as to whether we should pull out a chair or hold a door open for a lady. And an increasing level of rude behavior and bad manners across the political spectrum appears to be de rigueur these days not only within the government, but also when government officials or foreign dignitaries are visiting a particular place.  In some cases it seems that new and social media are responsible for promoting a kind of public boorishness which has, frankly, little or nothing to do with exercising personal freedom, and everything to do with crass selfishness.

However this is not to say that in the past, everyone loved their neighbor as themselves and was generally well-behaved.  For example, if you are a fellow student of history you no doubt find it ironic, as I do, that people today complain about a lack of decorum in Congress.  The truth is that compared to how things used to be, shouting out “You lie!”, or wearing a hoodie on the floor of the House, is nothing compared to what some of the Founding Fathers got up to.

Congressman Matthew Lyon holds the dubious distinction of being the first member of the House of Representatives – though certainly not the last – to have ethics charges brought against him. In the winter of 1798, he  spit in the face of Congressman Roger Griswold, after Griswold had called him a scoundrel and referred to his dismissal from service during the Revolutionary War for cowardice, while they were in session.  Griswold later attempted to beat the tar out of Lyon with his cane on the floor of the House, and Lyon defended himself with a pair of tongs he grabbed from a fireplace in the chamber.  However before my European readers begin to think that this sort of behavior is an American one, allow me to point out that  American politicians are not the only persons who have sometimes lost their sense of office and dignity during the course of history.

Robert Harley, Earl of Oxford, served as 1st Lord of the Treasury – in effect, as Prime Minister – to Queen Anne toward the end of her reign.  Unfortunately, he did not seem to be able to rise to the dignity of his office, nor show the proper deference due to the monarch.  During a meeting of her Privy Council on July 27, 1714, we are told that the Queen complained that Lord Oxford had “neglected all business; that he was very seldom to be understood; that when he did explain himself she could not depend upon the truth of what he said; that he never came to her at the time she appointed; that he often came drunk; lastly, to crown all, that he behaved himself towards her with bad manners, indecency, and disrespect.”

Matters then came to a head when Lord Oxford and the Queen got into what an eyewitness described as a “personal altercation”, which went on and on until 2 o’clock in the morning.  At the end of what must have been an absolutely fascinating, if incredibly uncomfortable, battle of wills, the Queen had had enough.  She took back the White Staff, a kind of ceremonial mace which was the emblem of office traditionally given to her 1st Minister, and gave it to Lord Bolingbroke, dismissing Lord Oxford from her service.  The Queen died several days later and her successor, King George I, had Lord Oxford impeached for high crimes and misdemeanors, and imprisoned in The Tower of London for several years.

Civilization only works when its members agree that there are situations in which it is better to put others ahead of ourselves, whether because of the power they hold, or their age/infirmity, or their role in our society, and so on.  If there is no such deference, then it is an every-man-for-himself situation, and you eventually end up with utter chaos.  Look at what happened in places like Russia or Spain last century, when anarchy led to protracted Civil War, and you will find it not a pretty picture to be “liberated” from rules of decent behavior.

Of course, those who rail against conventions and hierarchies as somehow enslaving human beings and preventing freedom ought to consider the alternative: a world in which anyone can rob from you or physically abuse you, and against which actions you would have no recourse, unless you were physically capable of fending them off.  No rational person wants to live for any extended period of time in a society as strictly regimented as North Korea, I would wager, but on the other hand no rational person would want to live in the middle of a permanent war zone, either.  We are flawed creatures, with a spark of divinity veiled by an inherent tendency of all fallen creation to look out for itself, first.  This often leads to our treating others poorly, whether out of deliberate malice or out of careless disregard.

The rules which we have put in place with respect to how we behave in the course of our interactions are there to counteract our natural tendency to behave selfishly and badly toward one another.  Standing up when the judge comes into the room, or politely shaking hands with the President of the United States – even if you virulently disagree with his policies – is a way of demonstrating that you believe civilized behavior is not just an end unto itself: it is a means for keeping our civilization going.

All from the most highly placed to the most lowly find themselves in situations where they must defer to someone else in this way.  Even the Pope washes the feet of the faithful on Holy Thursday, just as you must wash your hands before appearing at someone else’s dinner table.  While we should avoid unnecessarily obsequious behavior, perhaps next time you find yourself interacting with another, it is worth considering whether you are behaving in a way which keeps our culture a civilized one, or whether you are chipping further away at its foundations.

“The Grey Eminence” by Jean-Léon Gérôme (1873)
Museum of Fine Arts, Boston

Law in the Balance

This is the last in my series of posts – though there will be a very simple post tomorrow – in which we have looked at the Passion Narrative in St. Mark’s Gospel in the context of broader social and cultural issues. I have tried to do my best to look at this text during Holy Week, the most sacred time of the year for Christians, and take some themes or ideas from it which I believe are worth the consideration of both my Christian and Non-Christian readers. On Monday we looked at the importance of studying symbolism in the creative spheres; on Tuesday we considered what it means to be naked; and yesterday we looked at the role of women in society.

Today we are going to look at something which is very much in the news these days, but then for that matter always seems to be in the news, and that is the rule of law. No, I am not going to discuss the constitutionality of Obamacare, or the HHS mandate.  I will leave that to those Constitutional law scholars who regularly argue before the Supreme Court, and thus actually know what they are talking about, rather than pay any attention to those who simply talk about it on television or in magazine articles.

Instead, my goal today is to make you a bit uncomfortable, if I can.

If we turn to what happened after Jesus’ Crucifixion in St. Mark’s account, which you can read here, we are told that after He had breathed His last on Friday afternoon, there was a very important question to be answered by His Jewish friends: was there time to take His body down and bury it before the Sabbath?

Joseph of Arimathea,
a distinguished member of the council,
who was himself awaiting the kingdom of God,
came and courageously went to Pilate
and asked for the body of Jesus.
Pilate was amazed that he was already dead.
He summoned the centurion
and asked him if Jesus had already died.
And when he learned of it from the centurion,
he gave the body to Joseph.
Having bought a linen cloth, he took him down,
wrapped him in the linen cloth,
and laid him in a tomb that had been hewn out of the rock.

Before we get into a consideration of what Joseph did here, we need to take a step back and look at the issue of the law, for the law is inextricably linked with what St. Mark is describing.

It is hard for me to look at what St. Mark reports without thinking like a lawyer. The legal mind, as my readers are no doubt well-aware, differs somewhat from the rational mind, although it has its own, at times cruel, logic to it. The lawyer works within a closed universe, wherein certain types of proofs which might make a difference in an argument between one friend and another may not even be considered within the context of a legal argument. It is important to understand this, because such an alternate universe has its own rules and ways of working, which do not always correspond to what we may and may not do in our private lives.

While St. Mark tells us what he himself witnessed, or was told later by others, remember that so far as we know, he was not a lawyer.  And as a lawyer, I sometimes find reading the Bible – not just St. Mark’s Gospel – to be frustrating to the part of my brain that has been trained to think as a lawyer.  I know from experience that when I am trying to put together an argument for court, for example, in that universe I need to ask certain questions and obtain certain answers to those questions which may be completely separate from real life in all of its messiness, if I am to convince the court to rule the way I believe it ought to rule.  So even though St. Mark is writing an account of a legal process, he is writing it as a layman would write it, not as a lawyer would write it: he is trying to persuade the reader’s immortal soul, not the mind of a temporal judge.

That being said, keep in mind that Jesus went through proceedings in two separate legal universes, in order for Him to be executed.  He was first condemned by religious authority, and he was subsequently condemned by civil authority. Had He been arrested in a modern, Western legal system He would have had certain protections and rights; if He had been, as someone who knows his way around the appellate system I could cite an almost infinite list of grounds for appeal from His death sentence. Be that as it may, and whatever one thinks of the actions of those such as the Sanhedrin or Pontius Pilate, He was not simply chased down by a mob and lynched, vigilante-style.

Turning then to a deeper reflection on how the law applies to the events described by St. Mark, one of the things we can all recognize is that Jesus taught His Disciples that people in need come before the law, but the law must still be upheld whenever possible. He was routinely criticized, for example, for healing sick people on the Sabbath, because in the mind of the more literal of the religious leaders of His day, this was working on the Sabbath, which was prohibited by the Mosaic law.  Jesus rejected this interpretation, and took the view that it was more important to act, when you found yourself in a situation where someone needed your help, even if it meant working on the Sabbath.

Similarly, in parables such as the very familiar one of “The Good Samaritan”, Jesus challenged His listeners to consider which was more important: proscribed ritual or another in urgent, life-or-death need? The wounded Jewish traveler on the side of the road is not touched by the observant Jewish leaders, who do not want to become ritually unclean, and thereby become unable to serve God in the Temple. Instead, the traveler is aided by someone whom the Jews considered at best a heretic, and at worst an enemy, a resident from what is today the West Bank.  [N.B. Now THERE is an interesting geographical tidbit to chew on.]

At the same time however, in the Gospels Jesus repeatedly reminds His followers that they must follow the law, whether as promulgated by the religious authorities or by the civil authorities, so long as in so doing they do not lose sight of the big picture. A mistake often made by those on the left is looking at Jesus as some sort of early anarchist, forgetting that He commanded His followers to obey the rulings of the Pharisees on religious matters, and of course rendering unto Caesar what is properly Caesar’s under the civil codes. This fact suggests that one needs to find a way to balance out what is intrinsically good and what is unquestionably legal, what is beneficial and what is permissible.

In the passage quoted above about the actions taken by Joseph of Arimathea, the point is that this member of the Sanhedrin does BOTH. He rushes to provide a last act of compassion toward his friend Jesus, but he does so recognizing that the Mosaic law which he follows gives him a limited amount of time in which to act.  He also recognizes that he cannot simply take the body down, because he is legally required to consult the appropriate civil authority, i.e. Pilate himself, before he can do anything, even if Joseph personally believed that Jesus had been wrongly condemned.

That in itself must have been very difficult to do, as St. Mark observes.  Joseph could conceivably have been arrested by the Romans for seeking to encourage sedition, for example.  Once Pilate’s legal permission was obtained, can imagine that there must have been a flurry of activity on the part of Joseph and those who assisted him, to try to get Jesus buried before nightfall.  Though as it turned out, the fact that they could not complete all of the rituals normally mandated before a Jewish burial is in fact why the women come to the tomb at sunup on Sunday morning, so that they could finish what they and Joseph did not have time to do on Friday evening.

Joseph gives us a good example of the personal courage that anyone, be they Jew, Christian, or nothing in particular, ought to do when it comes to acting out of compassion in balance with legal authority.  The mere existence of a law cannot be an excuse for exercising the so-called “Nuremberg defense”, when it comes to how we treat one another. Just because something is perfectly legal, does not mean that we are excused from helping other people, or that we are free to harm them, when we are put in a legal position to do so.

At the same time, if we do not obey law and order when it acts to provide structure and avoid chaos, then we need to question ourselves as to whether we acting out of compassion for others, or whether we are really acting out of selfishness. A healthy and vibrant civilization is only possible when human beings voluntarily impose certain limits on how we interact with one another.  Yet it only survives if its members recognize that a balancing act, or indeed an outright change if the law proves to be unjust, is sometimes necessary.

“Joseph of Arimathea Seeking Out Pontius Pilate”
by James Tissot (c. 1886-1894)
Brooklyn Museum of Art, New York