Hans Haacke’s Condensation Wall: Copyright Authorship Over the Weather
Nature has offered inspiration to artists for centuries and perhaps even millennia. Turner’s seascapes, Monet’s water lilies, Brancusi’s abstract representations of birds in flight, and even the Lascaux cave paintings embody the artist’s attempt to capture the beauty of nature and its own creative processes. Hans Haacke has also “captured” the beauty of nature but perhaps more literally than other artists. For his Condensation Walls or Condensation Cubes, Haacke has built a plexiglass box that creates the conditions in which condensation occurs generating a “delicate veil of drops” that lines the interior walls of the box. But who qualifies as the creator of this work? Does the work originate with Haacke or the overarching forces of nature? Does a work that may physically capture natural process contain sufficient “authorship” to qualify for copyright protection? These questions form the primary foundation for the copyrightability analysis of Condensation Wall. While the concepts of copyright and artistic authorship may not always seem harmonious, the dialogue between these two areas offers a provocative exercise to consider the meaning of creation and authorship in both the legal and artistic sense.
Born in Cologne, Germany in 1936, Hans Haacke has worked in the United States for much of his career, teaching art at the Cooper Union for several decades. In the 1960’s, his work explored biological systems and natural processes, particularly the effect of wind currents, plant growth, and animal behavior. (Hileman 2010, 75). He has used these systems to experiment with the definition and scope of art, which he believes is the result of “an ever-changing consensus.” (Hileman 2010, 85).
Part of a set of sculptures, which Haacke referred to as his “weather boxes,” Condensation Wall is a sealed, clear acrylic plexiglass container (70 x 70 x 16 in). (Fry 2015, 27); (National Gallery of Art). With this particular series, Haacke sought to enable a biophysical system that “link[s]…the viewer, sculptural object, and architectural container.” (Buchloh 1990, 137). The work is fundamentally a clear plexiglass container, filled partially with water. The light warms the inside of the container, and because the temperature inside is always higher than outside, the water condenses and a “delicate veil of drops” then lines the walls. (Galanter and Levy 2003, 265). Even museum visitors play an important part of this system by changing the ambient temperature around the work. (Tyson 2015). The work, thus, engenders a physical exchange between the environment, including the viewer, and the sculpture itself. (Tate 2015). This condensation process does not end but constantly changes without repetition. (Galanter and Levy 2003, 265). According to the artist: “The conditions are comparable to a living organism which reacts in a flexible manner to its surroundings. The image of condensation cannot be precisely predicted. It is changing freely, bound only by statistical limits.” (Museu d’Art Contemporani de Barcelona). “[S]imultaneously absolutely natural and absolutely artificial,” Condensation Wall presents a collision between nature and man-made creation. (Jarzombek 2005, 102).
The Nature of Copyright Law
Copyright’s purpose is to encourage the creation and dissemination of new works for the benefit of the public by granting authors for a limited time exclusive rights concerning the uses of their works. Copyright extends to a work of original authorship, meaning that the work must originate with the author and exhibit at least a minimal amount of creativity, fixed in a tangible medium of expression. (17 U.S.C. § 102). The fundamental basis for this standard resides within the U.S. Constitution, which delegates to Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (U.S. Const. art I, § 8, cl. 8).
Who qualifies as an author for the purposes of copyright? The Supreme Court first interpreted “author” to mean “to whom anything owes its origin; originator; maker.” (Burrow-Giles, 111 U.S. at 58). The Court later clarified the term to mean “the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” (CCNV, 490 U.S. at 737). In its Compendium of U.S. Copyright Office Practices, the Copyright Office has explained that a work must be created by a human being in order to receive copyright protection. (Compendium § 313.2). The Office, therefore, will not register works “produced by nature, animals, or plants.” (Compendium § 313.2). The source of this human authorship requirement derives from a basic premise of copyright law. The purpose of copyright law is to incentivize authors to create expressive works by granting them the ability to control and receive remuneration for certain uses of their works by others. A “non-human,” such as a natural process, animal or plant, cannot enforce the exclusive rights granted to authors under this legal framework.
In addition to the appropriate authorship, a work eligible for copyright protection must also be “fixed in any tangible medium of expression…from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.” (17 U.S.C. § 102(a)). Specifically, the work must be fixed in a copy “by or under the authority of the author” and the work must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” (17 U.S.C. § 101).
Copyright & Flowers
The seminal case that confronts copyright authorship and fixation of a “natural” artwork is Kelley v. Chicago Park District. Chapman Kelley created in 1984 Wildflower Works, a wildflower installation of two enormous elliptical flower beds edged with borders of gravel and steel in Chicago’s Grant Park. The artist considered the garden to be both a “living wildflower painting” and a sculpture “rendered in living material.” (Kelley, 635 F.2d at 300). The work also explored “a new vegetative management system that beautifies [the] landscape economically with low-maintenance wildflowers.” (Kelley, 635 F.2d at 300). By 2004, Wildflower Works had deteriorated. In response to the garden’s current state, Park District, tasked with the administration of Grant Park, dramatically modified the garden without the artist’s approval by substantially reducing its size, reconfiguring the oval flower beds into rectangles, and changing some of the planting material. (Kelley, 635 F.2d at 291).
Kelley sued Park District for violating his right of integrity under the Visual Artists Rights Act (VARA). But under VARA, if a work does not meet the basic copyrightability requirements, it cannot qualify as a “work of art” eligible for VARA protection. (Kelley, 635 F.2d at 302). The copyrightability of Wildflower Works thus became the focus of the courts’ analyses.
The U.S. Court of Appeals for the Seventh Circuit ultimately found that Wildflower Works was not copyrightable because, as a “living garden,” it “lacks the kind of authorship and stable fixation normally required to support copyright.” (Kelley, 635 F.2d at 303). The court explained that “[a]uthors of copyrightable works must be human; works owing their form to forces of nature cannot be copyrighted.” (Kelley, 635 F.2d at 304). For this particular work, the natural forces, not the “intellect of the gardener,” determined the form, growth, and appearance, including the color, shapes, texture, and scents, that make Wildflower Works a work of art. (Kelley, 635 F.2d at 304).
Insufficient “fixation” of the wildflower installation also presented a problem for the court. The court declared that a garden, which is “alive and inherently changeable” is “too inherently variable” to qualify as “fixed” as defined by the copyright statute. (Kelley, 635 F.2d at 304-05). Considering that the work must be sufficiently permanent or stable to be “perceived, reproduced, or otherwise communicated for a period of more than transitory duration,” the court pondered when is the point of fixation for Wildflower Works: at the time of first planting or when the flowers are in full bloom? (Kelley, 635 F.2d at 305). The court concluded that Wildflower Works is not “stable or permanent enough” to be fixed due to the dynamic and perpetual change of flowers and, thus, is ineligible for copyright protection. (Kelley, 635 F.2d at 305).
Copyright & Condensation
When determining the copyrightability of Haacke’s Condensation Wall, the ambiguous line between human and non-human authorship presents the greatest challenge. While the plexiglass container was constructed by man, who can claim authorship over the biophysical process of condensation that generates the inspired and innovative aspects of the work? Similar to Kelley’s Wildflower Works, the natural elements of Haacke’s Condensation Wall also offer a compelling challenge to determine the boundaries of fixation for copyright purposes.
Authorship: Artist or Mother Nature?
As stated above, a copyright author means originator, maker, or the person who “translates an idea into a fixed, tangible expression entitled to copyright.” (CCNV, 490 U.S. at 737). The courts and the Copyright Office have interpreted this definition to mean that copyright requires human authorship as a non-human cannot exercise the rights under copyright law and thus is not impacted by the legal incentives to create the work. Does Haacke fit into this framework as the copyright author of Condensation Wall? Does Condensation Wall owe its form or origin to Haacke?
One may argue that the construction of the wall or cube itself signals sufficient authorship for Haacke because the work, as a sculptural or architectural element, would not have physically existed without Haacke’s construction. While Haacke created a plexiglass case, the “delicate veil of drops” that add to the creative aesthetics of the work, however, owe its origin to nature. The natural process, albeit enabled by Haacke, determines the appearance of the condensation that makes it a work of art. As Wildflower Works’s color, shapes, texture, and scents were not the product of the “intellect of the gardener,” the condensation of Condensation Wall does not owe its origin to the intellect of the weatherman, who in this case is Haacke. Moreover, the box, which Haacke did construct, does not contain sufficient original authorship to qualify for copyright protection as copyright law does not protect common shapes.
If copyright authorship was extended to Haacke for Condensation Wall, one could argue that the visitor, who impacts the temperature of the surrounding environment, and, correspondingly, the condensation within the box, also deserves authorship. But such a scenario would contradict the purposes of copyright. The visitor, while she may have impacted the appearance of the work, particularly the volume of drops on the wall, did not “create” the work influenced by the associated incentives of copyright authorship. Thus, it appears that Haacke is not naturally the copyright author for Condensation Wall.
Fixation: Permanent Condensation?
Like Kelley’s Wildflower Works, the copyrightability analysis of Condensation Wall also confronts some fundamental fixation issues. The statute requires that in order for a work to qualify for copyright protection, it must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” (17 U.S.C. § 101). While the acrylic features of Condensation Wall are certainly “stable,” the work itself, the “condensation,” is inherently changeable and evanescent, as the drops momentarily appear before sliding down the wall.
The inherent purpose of the work, to embrace constant flux within biophysical systems, seems to fundamentally contradict the concept of fixation. (Tyson 2015). Condensation Wall constantly changes appearance in an inconsistent manner and does not repeat itself. (Galanter and Levy 2003, 265). The pattern of condensation, moreover, cannot be precisely predicted, like the weather. As the court pondered in Kelley, when is the point of fixation for Condensation Wall? When is a particular formation of drops sufficiently permanent to be perceived for “a period of more than transitory duration”?
A Copyright Forecast
On the basis of authorship and fixation, Condensation Wall would likely not meet the requirements for copyrightability. While the Copyright Office has not granted a copyright registration for this particular work, this exercise provides an opportunity to consider the common issues of authorship and fixation associated with copyright and conceptual art, particularly the use of natural processes as artistic material. Condensation Wall prompts a reconsideration of authorship in both the artistic and legal contexts. (Tyson 2015). What does it mean to create? Who is a creator? When does a work originate with the author and not the materials that are either natural or man-made? Similarly, art itself as a concept prompts “fixation”-related challenges regarding the context and relationships among location, art, and the viewer. The ever-changing pattern of condensation due to the interaction with the environment reflects the continuous institutional change within the museum or gallery that maintains the object and the fluctuations surrounding the meaning and narrative of the art itself.
Although the legal analysis does not consider the artist’s intentions when creating the work, such a contemplation here more appropriately offers some insight into this apparent disconnect between art and copyright. Why did Haacke create Condensation Wall? Did copyright and its associated exclusive rights over the reproduction, display, and distribution of the work motivate Haacke to create? If it is not necessary to grant the exclusive rights to stimulate creativity, then the intellectual property system has assumed no one deserves to be awarded for it. Many contemporary visual artists, who focus their practice on the creation of unique pieces, create without the assurances of copyright protection. They do not rely on the financial benefits of licensing the reproduction, display, or distribution of the work as an incentive to create more work but instead depend on the sale of the unique piece. (Adler 2018, 342). From a policy perspective, should copyright even be awarded to these types of artworks? Modern art presents a perhaps uncomfortable scenario in which not all artworks, regardless of the uniqueness of the idea, deserve copyright protection. Conceptual art that relies so much on natural processes acutely emphasizes this distinction. Artists who rely upon natural processes as a critical source for their work, therefore, cannot or should not share copyright authorship with Mother Nature.
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