Interview with Law Professor Eduardo M. Peñalver, on Art, Law and Property
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, http://www.rebargroup.org/projects/parking/index.html#). 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.
SMS:
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”?
EP:
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.
SMS:
Page 3 of 4 | Previous page | Next page