Implied in the Contract. Occasional Reflections on Caveat

Author: Steyn Bergs
June-July ’19
Edit October ’19

This text was discussed at Caveat Reading Room #12: Is it simply a conversation?

In the artist’s contract, artistic autonomy is both bracketed and bargained for. It is bracketed, because the very necessity of artist’s contracts challenges the notion of a wholly self-governing and self-determining artistic realm—one whose lofty and disinterested pursuit of formal innovation and experimentation would supposedly remain untouched by the more mundane sphere of political economy. The artist’s contract, by its very nature, assumes and confirms the implication of artistic production in the capitalist market economy, dispelling any fantasies of the self-determination of the field of art that might still be residually operative. At the same time, however, artistic autonomy is also bargained for, as this recognition of art’s implication in capitalism also prepares the ground for the negotiation of an autonomy understood not in absolute or simplistic terms. The inherently relational nature of the (artist’s) contract rebukes reductive conceptions of autonomy as autarky (autonomy as more or less monadic sovereignty, as the absence of relations), by positing autonomy as something that is always relative and contingent (autonomy as afforded by and dependent of relations). The former conception is what is still regularly made to pass for autonomy in art; the latter is less heroic and more ‘compromised’ but has the considerable advantage of being in touch with reality.

The artist’s contract is a bundle of ideological tensions, a site of often productive contradictions. It signals how the entirety of artistic production, distribution, and reception is threaded through apparatuses both legal and economic. These are apparatuses that many artists may not want to explicitly identify themselves with, and may be keen on distancing themselves from, despite their reliance on these apparatuses for supporting their practices and their livelihoods. For many artists, then, engagement with these tensions and contradictions brought to the fore by the artist’s contract will present a useful exercise in both modesty and politicization. At its strongest moments, Caveat (which is self-defined as a collective research project reflecting and acting on the ecology of artistic practice, through the prism of the artist’s contract) was precisely that.

The present text was prompted by Caveat but, by and large, responds to it rather indirectly, by waxing theoretically on the topic of the artist’s contract (and art’s relation to the contractual more generally). What I do want to do in it, however, is to offer some reflections on a number of issues that I take to be crucial for Caveat as an artistic research project—crucial for understanding and evaluating its premises, its methodologies, and its (preliminary) outcomes. The text will take the guise of a number of occasionalreflections. What I mean by this is that, while many issues will be touched upon, I will not be able to elaborate upon them as much as would probably be desirable, considering the complexity and breadth of much of the subject matter. It also means that the issues I have chosen to highlight here are not necessarily the only ones that are worth thinking about. Basically, the present text will unfold as a set of loosely interrelated (and often not fully systematized or developed) observations, questions, and criticisms related to the topic of the artist’s contract. These observations, questions, and criticisms have been grouped around four thematic clusters, which will however be shown to have significant overlap.

These clusters are, respectively: the immanence of artistic practice to what will be called the legal-economic complex and the challenges and complications this brings about for artistic practices aspiring to operate critically; the entanglement of this legal-economic complex (and thus, indirectly, of artistic practice) with state politics and violence; the trouble with the abstract equality of persons that is presumed by legal frameworks, contracts, and liberal democracy alike, but that is everywhere negated in practice; the question of what might be or become of the position and importance of the aesthetic (understood broadly as sensuous practice and as the critical attunement to this practice) in art as it becomes more explicitly and more overtly concerned with its legal and economic conditions as materialized in the artist’s contract. Some of these things I write about because they were discussed at length in Caveat, others I discuss because I found them to be conspicuous by their relative absence. It is also worth remarking that none of the points I make in this text are particularly new or original; instead, what I have tried to do is articulate them in such a way that their bearing—however lateral—on Caveat becomes clear. Furthermore, as an art historian, I have tried with some regularity to concretize my arguments by reference to particular historical cases of artists engaging with contracts. Most of these cases I reference are widely known and discussed.

I stress the occasional form of this essay not just to dodge or defer the much harder job of making more definite, prescriptive, or conclusive statements. Nor do I want to fetishize the fragmentary and the unfinished. The point is that I understand Caveat as a research project itself to be a piece of unfinished business, and that I want my text to have the effect of not closing it off, but to be a contribution to its ongoing development. Moreover, it is not just that these reflections take on an occasional form; it is also that they were very much occasioned by Caveat and by my own participation in and affiliation with the project. Here, it is good to be explicit: while I was closely involved with the project in its initial, germinal stages—doing explorative research on artist’s contracts and contributing to Caveat’s residency at the M HKA, the Antwerp museum of contemporary art, in 2017—my involvement for most of the project was perhaps best characterized as vacillating between being on its ‘inside’ and being a more or less distant observer. At this point, as a ‘dramaturg’ my role was to do some supportive research, to function as an interlocutor and interrogator, and to sometimes contribute (to add drama!) to Caveat events. Needless to say, the nature of this involvement informs and marks this text. However, the fact that I sympathized with and cared for the project from its inception does not mean I fully identify with it or accept uncritically all of its aspects.

What I am trying to say, then, is basically that the responsibility for the arguments and (political) positions outlined in what follows—as well as for the text’s flaws and shortcomings—belongs entirely to myself. Yet at the same time, I also feel the urge to stress that this authorial self of mine, while possessing a sufficient degree of autonomy to operate as such, is also relationally constituted. In short, this text would not have been conceivable without the time and the space opened up by Caveat, nor without the conversations and exchanges I have had with all those involved. My debt and my gratitude goes out to them, while the responsibility for this text’s arguments and shortcomings remains my own entirely.

I Implied in the Contract

Implied in the contract is the implication of the artist and their work in capital. This much is acknowledged by two paradigmatic artist’s contracts closely associated with 1960s and 1970s conceptualism and institutional critique, namely Daniel Buren’s avertissement and Seth Siegelaub’s and Bob Projansky's The Artist's Reserved Rights Transfer and Sale Agreement.¹ Significantly, these two contracts were concerned not only with the authentication of the artworks they pertained to. They also insisted on the correlation of authenticity (and authorship) and the artwork’s exchange-value—with both contracts stipulating that violation of their terms would result in a withdrawal of authorship. With Buren as with Siegelaub and Projansky, the threat of de-authorization is used as a warrant against practices that artists would find unethical or otherwise undesirable. Particularly, it is used to gain leverage against practices that would instrumentalize the artworks in question for the purpose of financial speculation.

An important corollary of these contracts’ concern with authentication and authorial ratification is that the contract increasingly came to function as the locus of the artwork’s very (self-)definition. Reading the avertissement, for instance, there can be no doubt that Buren took the contract to be the real machine that makes the art. In Martha Buskirk’s useful terminology, the 1960s and 1970s saw the art object become less and less object-like and more and more contingent—which is to say: dematerialized, processual, informational, ephemeral.² Absent any traditional markers of authorship—and more generally, of the recognizably ‘artistic’­—artworks became progressively elusive and promiscuous in their ‘ontology’.³ The interest, in the 1960s and 1970s, in artist’s contracts can be seen as a way of reconciling this elusiveness and this promiscuity with the exigencies of the market. The latter, of course, ultimately proved quite capable of absorbing artworks that did not take the guise of stable, material objects, long as it was still dealing with objects in a broader sense—with clearly defined, circumscribed, and (legally) fixed entities.

Importantly, both Buren and Siegelaub and Projansky were well aware of the compromising qualities of the artist’s contract—of its ambivalent function of mediating between developing artistic practices that were ambitious, not to say revolutionary (if only in their claims), and the wider, extra-artistic realm of politico-economic production and reproduction that these practices ultimately depended upon. For them, however, these compromising qualities did not at all render engagement with artist’s contracts pointless or reactionary. Quite the contrary: they grasped the compromises inherent in the contract as potential points of friction, as moments in which an immanent critique of the legal-economic complex that they understood artistic production to be reliant on became possible.⁴ The artist’s contract was seized as a means for working within the legal-economic complex, but also in some opposition to it. At the very least, the contract was seen as a tool for gaining some degree of agency over this legal-economic complex—for trying to use it rather than only be used by it.

This historical excursion is relevant here because Caveat’s present involvement with artist’s contracts extends a critical lineage that was initiated at the time of Buren and Siegelaub and Projansky. However, things have also changed significantly since the 1960s and 1970s, so that the historical precedents of Buren’s and Siegelaub and Projansky’s contracts cannot just stand by themselves to illuminate Caveat’s politics, methodologies, ambitions, and challenges. In particular, the identity of the legal-economic complex that artistic production is reliant on has shifted—and shifted in ways that were not anticipated by conceptualism, but that were strangely prefigured by it nonetheless.

Briefly put, Caveat operates in a context where the capitalist mode of production has well and truly caught up with conceptual art. What was once an idiosyncratic, antithetical, or vanguard position has now become a platitude: commodities, along with the labour put into producing them, have supposedly become immaterial, informational, affective, and what have you. Much like with conceptual art, we are ideologically pressed to think of the contemporary economy as a ‘marketplace of ideas’, one in which ideas (concepts) circulate freely and without meeting resistance, and in which material production or execution becomes a perfunctory affair.⁵ What is important here is how conceptualism—and in particular its relation to the contract—was prototypical to the current commodification of stuff as notoriously shifty as ideas or affects, or even ‘creativity’ or ‘innovation’. As noted earlier, the legal and contractual definition of contingent works of art, while allowing these artworks to be something other than material objects plain and simple, did amount to a form of reification, a formalization and a stabilization that allowed the work to be identified as a more or less discrete object, and thus to be readily exchanged.⁶ At the risk of making too sweeping an analogy, it is worth observing how many of our current economic exchanges, dealings, and interactions are grounded in similar techniques and operations. While the likes of Buren and Siegelaub and Projansky understood well the entanglement of authorship, exchange-value, and law in their own historical conjuncture, the current proliferation and increasing importance of copyrights and patents suffice to illustrate that the legal-economic complex has developed significantly since. For lack of a better word, it has become more complex still, with law and economy only becoming more intricately and more profoundly intertwined.⁷

Such developments raise issues, questions, and challenges that well exceed the scope of this text—and probably of Caveat itself. One issue that is worth highlighting, however, is the fact that the increasing permeation of the legal with the economic and vice versa severely complicates and restricts the possibilities for an immanent critique à la Buren and Siegelaub and Projansky. (I take it to be self-evident here that “critique” designates not a form of mental activity somehow isolated from agency in the world, but rather a critical praxis wherein reflection and action—thinking and doing—mutually inform each other without one taking priority over the other). This is where taking recourse to, and inspiration from, art historical precursors becomes tricky, as it might preclude certain questions from being asked—questions that need to be addressed time and again, to which no definite answer is possible, and which need to be dealt with (and potentially re-articulated) on a case-to-case basis. Such questions include: is advocating for the contractual consolidation and protection of (working) relations in artistic practice—inevitably involving the circumscription of that practice in contractual terms—still affording of an immanent critique to speak of?

Or, in other words: in doing so, are we still able to carve out for ourselves a specific position as art workers—as producers of something that resists, however faintly, production and productivity in its hegemonic forms and relations? Or are we just facilitating and accelerating our own transfiguration into self-managed cultural technocrats? And also: how to ensure that the focus on the contractual and legal implications of artistic practice does not give way to an alignment with or confinement within the contractual or the legal. How, in other words, to think and act on the points of conjunction of the artistic sphere with the legal-economic complex without foreclosing art’s specific affordances in relation to the transgressive, to the clandestine, and to the subversive? To be sure, transgression, clandestinity, and subversion are only rarely achieved—even if we take into account that they need not take the form of grandiose, heroic, or antagonistic measures and can also reside in more subtle, more lateral, interventions and gestures. Nonetheless, the mere fact that there resides in art a margin of potential for these things to occur remains crucial in considering what validates a specifically artistic approach to law and to the contract in the first place.

II State of the Art of the State

If the question of artistic production’s nonconformism vis-à-vis the legal-economic complex came up very infrequently during the course of Caveat, then this is perhaps because the legal sphere as it is encountered in artist’s contracts still presents itself as more or less friendly and frictionless. Of course, it is not always so. But in many of the discussions within Caveat,the state operations that enforce and enframe the contractual were touched upon only rarely, and only reluctantly. Capitalism (the economic half of the legal-economic complex, if you will) featured more prominently but often more or less abstractly, the effects and ascendancy of this bad object being felt primarily in the form of cultural and artistic workers’ precarity. Such precarity, while far from unproblematic, at the same time marks the relative privilege of cultural and artistic workers vis-à-vis the many people who have to endure far worse forms of insecurity and systemic vulnerability due to the legal-economic complex.

Dealing responsibly with such privilege would have to entail, at the very minimum, a recognition of just how tainted contracts, as a tool for formalizing relations, really are. It would have to entail, in other words, some degree of reckoning with the structural reliance of contracts and law on (state) violence, which not only enforces the preservation of and compliance with the existing legal framework (after the facts, as it were), but is also at its very root.⁸ What makes such a reckoning hard to do for an artistic research project like Caveat, however, is its very different conception and lived experience of the workings of the state. Indeed, if the state was discussed at all, it was not in its capacity as aggressor or as a mechanism of exclusion, but as the welfare state—the withering away of which, accompanied as it is by the decrease of public funding for art, is in many ways what originally prompted and necessitated Caveat.⁹ Correctly sensing that artists and cultural workers are at the forefront of the flexibilization and deregulation of labour (instances of what political theorist Isabell Lorey would term governing through precarization) a project like Caveat is nothing if not a reaction to the dwindling of the welfare state.¹⁰ This it is not to say that it was merely a melancholy or a reactionary reaction, however. This much became especially clear in a two-day event focused on critically discussing what might be learned, at present, from the historical practices of the Artist Placement Group (APG), an artist-run organization dedicated to temporarily integrating artists within corporations or governments.¹¹

Responding to and reflecting on the disappearance on the welfare state and its assorted systems of support for the art field is highly necessary. More and more, it is becoming evident that the welfare state was an exception not only in geographical but also in historical terms—that it was limited to just a small number of places in the world, and was in force only for a few intermittent decades. As we find ourselves at what appears to be these decades’ tail end, it becomes necessary to ask to what extent it is possible, or desirable, to detach the (declining) welfare state from those manifestations of the state which use violent means to safeguard the legal apparatus that Caveat’s contracts ultimately rely on. Though, gratefully, such state violence mostly appears as foreign to the everyday reality of most participants in Caveat (including this one), it is also necessary to question such appearances.

To give but one example: the event on the APG took place at Argos, a centre for art and media in the North of Brussels, at stone’s throw from the parc maximilien, where refugees and migrants gather and temporarily reside—and are often subjugated to police actions, including forceful evictions and arrests. The proximity of state violence to Caveat (its discourses and the sites of their production and reproduction)is literal, then, and ought to incite a continual questioning of the entire legal infrastructure (including courts, police, and prisons) that underlies the contracts espoused by Caveat. Again, this is not to say that engagement with contracts and the extended legal infrastructure that underpins it ought to be abandoned—quite the contrary. It is just to state that the uglier side of law and contract is one that perhaps we should not—cannot—completely dissociate a project like Caveat from, and one that therefore merits more explicit interrogation. One of the premises of Caveat is, rightly, that law is perpetually and performatively redefined in its use, and that this grants its users a degree of agency. It is no more than a logical corollary of this premise to say that we, as legal subjects, are implicated in and co-responsible for the reproduction of existing asymmetries of power—for instance through forms of ‘tacit consent’. More overt recognition of this might allow for the creation of new bonds of solidarity both within and without the art world, and for an understanding of how manifestations and lived experienced of precarity are different yet interrelated.

III (The Trouble with) Abstract Equality

If, as if in a horrific mass-enactment of Kafka’s parable ‘Before the Law’, some people are formally and explicitly excluded from the law and denied the right to have rights, their very presence deemed ‘illegal’, then there are also some more subtle forms of discrimination that law and the contract do not exactly cause or exacerbate, but that they do not acknowledge or remedy either. Infamously, conceptual artist Adrian Piper used something of an adapted version of Siegelaub and Projansky’s Agreement, one that contained an added ‘Discount to Purchasers’ clause which stipulated: “No single work by the Artist shall be sold by the Dealer at a percentage discount…since it is already subject to the 50% Off Black Artists Discount and the 25% Off Women Artists Discount”.¹²

This clause of Piper’s quite literally stands as a corrective to the standardizing and universalizing presumptions that characterize contract in general and Siegelaub and Projansky’s contract in particular. The latter, it should be remembered, was designed so as to be easily Xeroxed and distributed, implying quite literally that the contract was something of a universal catch-all. This is consistent with Siegelaub-brand conceptualism’s presupposition of a perfect and unstriated reproducibility and transferability of a ‘dematerialized’—informationalized, disembodied—artistic content. While revolutionary and generative at the time, such a presupposition is not without its issues, limitations, and biases.¹³

The ‘Discount to Purchasers’ clause’s recognition of the importance of Piper’s identification as a black female artists serves as a succinct reminder of the fact that, normally, such factors are of course not accounted for (not taken into account) in contracts, which thus presume the involved parties to be abstract subjects—bodiless and generic ‘legal persons’, bearers of rights and obligations presumed, like the concept in conceptual art, to be ideational and dematerialized. Needless to say, the abstraction inherent in the contractual conception of the ‘legal person’ amounts to an effacement and a negation of all kinds of significant differences. Quite simply put, the very form of the contract presumes an abstract, liberal-democratic-type equality in a world where, undeniably, inequalities of all sorts are rampant.

Though certainly this is not the place for a properly developed critique of the abstraction of the (legal) subject implied in the contract, it is nonetheless worth noting the prevalence of such critiques, as well as their significance for a project like Caveat. Already in Evgeny Pashukanis’ The General Theory of Law and Marxism, originally published in 1924, much hinged on the critique of the legal subject as an impersonal being totally stripped of qualities and particularities, “an abstract owner of commodities raised to the heavens,” one whose purported ‘freedom’ is purely the freedom to buy, sell, and own.¹⁴ Another, rather more recent, example of such a critique is the notion of intersectionality—a concept that is now of considerable import in academic discourse and activism alike, but that was coined in 1989 by critical legal theorist Kimberlé Crenshaw specifically to denote the interrelated forms of discrimination affecting black women in US courtrooms despite the fact that, in such courtrooms, all people are formally considered equal.¹⁵ Crucial differences between these two texts notwithstanding, in each case the point of contention revolves around the notion of abstract equality postulated by legal personhood and how this abstract equality relies on the disavowal of historically produced differences and injustices.

Briefly put, the important point here is that the abstract equality implied in the very form of the contract (and, by extension, in liberal-democratic conceptions of social contractualism) is not innocent, and can be—and has been—problematized in myriads of ways.¹⁶ Significantly, it involves a (willing) blindness to race, gender, class, and other markers of identity that affect and determine relations—interpersonal relations as well as relations of capital and power—before any contract comes into play at all. The contract may purport to treat people indiscriminately, but in order to do so it has first to gloss over many actually existing forms of discrimination. Abstract or formal equality coexists with, and arguably even helps sustain, de facto inequalities. For an artistic research project revolving around contracts, not to assess these issues directly would be to fall prey to the very same blindness and biases inherent in the form of the contract. One way of countering this would be to follow Piper’s example and to squarely and explicitly insert considerations of identity (of non-abstract subjectivity, if you will) into the terms of the conversation and of the contract itself—however awkward this may be. Importantly, it is one of Caveat’s main ambitions to try and use contracts to remedy certain asymmetries constitutive of the art field (such as the asymmetries between artists and other institutions or parties they work with), or at least to use contracts as a lever to make these asymmetries a matter of common concern. It would therefore be no more than sensible to expand the conversation to include the kinds of asymmetries that Piper was trying to signal with her ‘Discount to Purchasers’ as well.

IV More Than Mere Formalities: Persistence of the Aesthetic

After such critical reflections, it is something of an embarrassment to still have to talk about art or aesthetics. But perhaps embarrassment, designating as it does the specific sense of akwardness or discomfort that comes from something not being in its proper place, is in its proper place here. The above reflections have emphasized artistic production’s embeddedness in a capitalist legal-economic complex and the contractual’s by-proxy complicity in state power and violence, as well as its problematic assumptions of abstract equality between persons. If an uneasiness is felt in talking and thinking about the aesthetic because it is clear that the aesthetic does not quite fit in this series, then probably this uneasiness only speaks to the value of doing so.

Because not quite fitting in should of course be precisely the point. If we agree that we have to acknowledge that we operate firmly withinthe ‘greater economy’ but want to resist becoming just another sector seamlessly integrated in it, if we sense an urgency to become more cognizant of our implication in the legal-economic complex but simultaneously want to operate against (aspects of) it, then we need to take seriously the particular affordances of art as aesthetic practice. By aesthetic practice, what is meant here is a praxis of lived and embodied sensuousness, something that engages the sensory and incites experiential reflection on the (political, epistemological) interferences of such engagement. If we want to be in but not of the world we currently inhabit, in other words, some insistence on the alterity of artistic practice to that world, on its non-identity with it, remains necessary. This alterity and non-identity will not be found at the level of the artistic ‘sector’ as field increasingly streamlined with productive labour and economic exigencies of all sorts. They do still reside, however, in art’s aesthetic dimensions.

Indeed, an insistence on the importance and potential of the aesthetic is complicated by precisely those developments that Caveat is there to address. The increasing entanglement and interpenetration of the artistic and the economic would seemingly make it impossible—or beside the point, or worse—to still see art as a figure for unalienated labour, as a space for non-subsumable and non-coercive play or enjoyment, as an occupation that fosters sociability and critical forms of thinking and experience, or as an activity that experiments with and prefigures emancipation and freedom (whatever those things might be taken to mean). It is also complicated by developments in contemporary art itself that correspond to the mutual rapprochement of art and economy in intricate ways. Much (post)conceptual art, which not coincidentally has been the focus of this essay as well as of Caveat, has seemingly learned to manage and curb its expectations of the aesthetic, administering it in homeopathic doses only.¹⁷ All this is not without good reasons: when capital itself becomes increasingly aestheticized and spectacularized, embracing asceticism and cerebrality is almost the default way in which (conceptual, postconceptual) art can still be antithetical. That being said, it is worth noting that the aesthetic is still decidedly operative, however residually, in (post)conceptual art as well. However much one might want to make the form of the artwork and the experience of that form into a mere formality, something always remains that exceeds the conceptual—and we might add the contractual—definition of the work. Another way of saying this is that the “aesthetics of administration,” which Benjamin Buchloh influentially argued characterize conceptual art, signal not the dissolution or the disappearance of the aesthetic as such, but just one particular strategy for dealing with it.¹⁸

Still, though, to take seriously the particular affordances of art as aesthetic practice, and to understand how they might be employed toward some end other than just becoming better salaried workers, remains a very hard thing to do after having learned conceptualism’s hard lessons. Talking about economy or precarity or law and how they structure and condition the artistic field, at this moment in time, seems to have become so much easier than coming to a proper understanding of the actual work of art—not to mention cherishing the conviction that this work, in itself, is something of substantial political significance. This is not at all to say that debates about economy or precarity or law are unimportant; they are not, and nor, for that matter, is the struggle for becoming better salaried workers. Rather, the point is that there is another horizon to attend to apart from the strictly immanent one. Endeavouring to gain better working conditions in the present does not preclude or oppose striving for a future that is different, and maybe even radically different, from the present—a future in which, perhaps, all that we do will be not so directly subsumed by capital, or not so proximate to forms of government that rely on structural violence. These are things that cannot be ‘solved’ in artistic practice—and certainly nobody would be so naïve to claim otherwise. But importantly, they are things that can be prefigured—however temporarily, minimally, or problematically—on the level of aesthetic experience. I am conscious that perhaps some people will cringe at my evocation of a radically different future and my association of it with aesthetic experience, finding it either hopelessly romantic, or hopelessly revolutionary, or both. Those people I would ask to consider, and to consider really carefully, why they would bother with art at all. For certainly there are many other forms of activity that allow for much more straightforward and effective forms of agency in the world than does art—like activism, politics, and indeed law—but none that possess its aesthetic affordances.

One modest way of striving for such a future, and one that Caveat can and does contribute to, is to be attentive and receptive to those things that we find in art but never in the artist’s contract—those things that perpetually evade contractual foreclosure. It is to value, support, and strengthen moments of truly heterogeneous imagination, intellection, enthrallment, sociability, pleasure, and weirdness. It is what happens when we spend time weaving working agreements together into a piece of cloth, when we break up the standardized, formulaic language of the contract and use it to create a sculpture that is activated through performance, or just when we convene to read aloud and discuss. That all of this does much more than any contract can ever conceivably capture is precisely why artists should be engaging more and more explicitly with the contractual, while also remaining conscious that contracts are only contracts, treating them with a healthy dose of scepsis and irreverence.

Footnotes