Monday, June 5, 2023

Interview with Law Professor Eduardo M. Peñalver, on Art, Law and Property

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:


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.


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?


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.


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?


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, 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.


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”?


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.


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?


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.




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