Declarations and Exclusions

The Curious Case of the King of the Bush and the Working Men

Here is a jolly little tune well known to those of a certain age who consumed mass quantities of radio or of MTV or of VH1 in and around 1983.   Yes, it's the song that introduced the United States to the arcane substance known as Vegemite, Men at Work's "Down Under":

Now, having grown up in a household with two generations of Girls Scouts living in it, I noted on my first or second listen to the song almost thirty years ago that its distinctive flute part includes a dozen or so notes that quote directly from another song, "Kookaburra (Sits in the Old Gum Tree)".  "Kookaburra" is the Second Most Australian Song on Earth, surpassed only by "Waltzing Matilda," so the inclusion of a reference to it in "Down Under" -- a song that is itself all about Things Australian, about how the world perceives Things Australian and how Australians perceive and present themselves -- makes perfect sense.

To refresh the recollection of anyone who hasn't heard it for a while, here is a performance of "Kookaburra."  This version is slightly unusual in that it is sung as a solo: the song is more commonly sung as a round, by groups of Girl Scouts or schoolchildren or similar nice young persons.  The portion of the melody that recurs in "Down Under" comes just prior to the first round of applause in this video:

The incorporation of the "Kookaburra" tune into "Down Under" was always so obvious and so thematically appropriate that it never occurred to me to think that the Kookaburra bits didn't belong.  If I had thought about it -- which I confess I never did -- I would have assumed either that the Kookaburra song is an anonymous, traditional piece from the public domain, or that the snippet used by Men at Work was so brief as to constitute a permissible "fair use", or that the band had obtained permission before using it.  And I would have been wrong.

It turns out that "Kookaburra" was only written in 1935, that it has a perfectly identifiable author (Marion Sinclair, a teacher who wrote it for a troop of Girl Guides [Aussie Girl Scouts]), that it remains protected by copyright and that its copyright is now held by a publishing company, Larrikin Music.  Larrikin brought suit against songwriters Colin Hay and Ron Strykert of Men at Work and against the band's record companies for copyright infringement, after the connection between the two songs was pointed out in a question on a television quiz show. This past week, Larrikin prevailed:

'I have come to the view that the flute riff in ''Down Under'' ... infringes on the copyright of Kookaburra because it replicates in material form a substantial part of Ms. Sinclair's 1935 work,' [Australian] Federal Court Justice Peter Jacobson said. 

He ordered the parties back in court Feb. 25 to discuss the compensation Larrikin should receive from songwriters Colin Hay and Ron Strykert and Men at Work's record companies Sony BMG Music Entertainment and EMI Songs Australia. 

Adam Simpson, Larrikin Music's lawyer, said outside court the company might seek up to 60 percent of the royalties ''Down Under'' earned since its release -- an amount that could total millions.

The ruling seems an odd one given that the quote from Kookaburra is at the same time obvious and trivial.  If the case were tried under U.S. copyright law, I would have to give good odds on the success of a defense based on Fair Use.  (See, e.g., the 2 Live Crew case, Campbell v. Acuff-Rose Music.)  

Hay and Strykert have never claimed that piece of the song as their own original work, and this is not a case of "subconscious" plagiarism as famously occurred in the case of George Harrison's reinvention of The Chiffons' "She's So Fine" as "My Sweet Lord."  In fact, it seems Hay and Strykert didn't even include the Kookaburra bit in their song as written. The offending notes were inserted while the song was being recorded, by flute player Greg Ham, much as a jazz player might include a reference to Song B while soloing on Song A.  From an Australian television report:

Colin Hay, the lead singer of Men at Work says he's very disappointed by the result. 

COLIN HAY: It has some pretty serious, you know, possibly some pretty serious financial repercussions. 

SARAH DINGLE: He doesn't deny that the flautist Greg Ham used two bars of 'Kookaburra', but he says that addition came after the original song was composed. 

COLIN HAY: When it was written, there was no band, there was no Men at Work, and so there was no flute in the band at all, and so when you talk about Down Under that's what Down Under is to me.  I'll go to my grave knowing Down Under is an original piece of work, when I wrote that with Ron, we took nothing from anybody and it was one of those, it was an accident that, it was a musical accident that happened.

No actual kookaburras could be reached for comment, as they were too busy engaging in howls of derisive laughter at these litigious humans.

~~~

Cross-posted from a fool in the forest.

Staging a Smokin' Intervention

 

Today, a simple legal syllogism:

    If

1.  You cannot shout "fire" in a crowded theater,

    and

2.  Where there's smoke, there's fire,

    it follows that

3.  You cannot smoke on stage in a theater.

The Los Angeles Times reports that, in Colorado at least, this is indeed the law:

Smoking onstage by performers is a commonplace occurrence that most theater professionals don't think much about -- that is, until that right is taken away. 

This week, the Colorado Supreme Court handed down a decision that effectively upholds a ban on onstage smoking in the state.  The ban applies to tobacco cigarettes as well as herbal cigarettes, which are often used as a substitute by theater companies.

The Court's decision, in the case of Curious Theater Company v. Colorado Department of Public Health and Environment, is available via the Colorado Bar Association, here.

At the core of the dispute is the question: when smoking is called for by the playwright, is a prohibition on the act of smoking an interference with "expressive conduct" in violation of the First Amendment's protections of free speech?  When the issue is framed that way, it is no surprise that the theaters in this case were joined by amicus curiae including the Dramatists Guild (looking out for the interests of playwrights) and the American Civil Liberties Union (generally on the side of the angels where Free Speech is concerned).  

The Court majority is on board with the proposition that actions on stage constitute expressive conduct within the Constitution's protection, but concludes that the blanket smoking ban -- which is directed to public spaces generally, not targeted at theaters as such -- is a permissible and reasonable "time, place and manner" restriction:

Because it is clear, without further evidentiary support, that the state has a significant interest in protecting the health and welfare of its citizens and that the welfare of those citizens would be more exposed to harm without the smoking ban than with it, the ban is adequately tailored for purposes of the First Amendment to the United States Constitution.

Dissenting Justice Gregory Hobbs begs to differ, particularly with the majority's conclusion that there are adequate alternative methods of expression available to playwrights and actors once smoking is eliminated.  Justice Hobbs seems clearly an enthusiast for the theater and for the First Amendment.  He trots out several examples of plays in which the act of smoking is central to the action and the presence of smoke an integral part of the mise en scene:

A single puff of talcum powder, or a prop cigarette with a reflective tip or light placed at the tip, can hardly depict the 'boozy veil of smoke' necessary to Who’s Afraid of Virginia Woolf? . See Kirk Johnson, Colorado Court Rules "No Smoking" Means Exactly That, Even on Stage, N.Y. Times, Mar. 21, 2008. 

Neither prop nor talcum cigarettes allow an actor to dramatically exhale a puff of smoke, as Mrs. Robinson does in The Graduate. One of the witnesses at trial testified that the audience had responded to a fake cigarette with laughter, though the author intended no comedy. 

The ability of a theatrical performance to communicate a plot, depict characters, and evoke an era according to the playwright’s intent is severely limited by the inability to light a cigarette, pipe, or cigar on stage. Colorado’s smoking ban lacks an exemption for the expressive conduct of theatrical smoking, allows no adequate alternative to theatrical smoking, and prohibits the smoking of tobacco alternatives. Thus, it is not narrowly tailored to meet the state’s legitimate interest in protection of the public’s health, safety, and comfort.

Exeunt.

~~~

Illustration: "Where There's Smoke There's Fire" (192?) by Russell Patterson; from the Library of Congress via wikimedia commons.

~~~

Crusading Knight vs. Crusading Lawyer [Updated]

Los Angeles Times art critic Christopher Knight has a bone to pick with New York arts lawyer (and proprietor of The Art Law Blog) Donn Zaretsky.  In a post to the LAT's Culture Monster blog, "How not to deregulate art museums," Knight writes:

I once asked a donor of major art to an important museum what would happen if that institution proceeded with a tentative plan to sell one of the donor's art gifts to raise money to cover the museum's mounting bills.  That option has long been an art museum no-no.  Professional museum standards forbid using income from art sold from the collection — the term is deaccessioning — to pay for anything except future art acquisitions.  The answer I got from the donor was swift, brief and blunt.  'I'll sue.' 

Ever since then, any controversial deaccessioning story that turns up in the news makes me think of lawyers first.  It's not pretty, I know.  (Insert lawyer joke here.)  But whatever public benefits may or may not accrue from such a sale, the one sure winner will be lawyers.

Deaccessioning is a hot topic in the museum world these days as institutions feel the squeeze of the difficult economy, or of their own mismanagement in happier times, or both.  As the pressure mounts, a museum may be tempted to sell off parts of the collection simply to generate funds for day to day operations. Those who disapprove of that approach -- the establishment majority in museum circles, exemplified by the Association of Art Museum Directors (AAMD) -- view deaccession to cover operating costs as the equivalent of turning your car to ready cash by torching it and collecting the insurance money.  While the AAMD's policies permit the sale of current holdings in order to fund acquisitions -- eliminating parts of the collection in order to expand or improve it, or to fine tune its focus, by the purchase of new and different works -- if appropriate thought and soul-searching is brought to bear on the process, most any other deaccession is viewed with horror and met with howls of opprobrium.

Donn Zaretsky does not follow the AAMD establishment line.  In any number of posts to the Art Law Blog, he has urged that deaccession should be entirely permissible for most any reason that museum management deems necessary or appropriate.  His positions on the issue have been laid out again in a new piece published in Art in America magazine, "AAMD Rules Need to be Deaccessioned."  Poo-hooing the standard argument that works in museum collections are held "in public trust," Zaretsky favors a more free range, or free market, approach:

. . . I suspect that, if the AAMD rule didn’t exist, deaccessioning practices wouldn’t change very much from what they are today: they’d still happen relatively infrequently, after much deliberation and careful consideration by museum curators, directors and trustees.

So where does that leave us?  Supporters of the AAMD position say that works can never be sold—except when they can be sold, in which case they’re somehow no longer held in trust.  And they say that if we allowed an exception for even the most mutually beneficial transaction (for example, a sale by a struggling institution like the National Academy to a healthy one like the Met), there would be no end to such sales—even though experience under their own rule shows that there are strong institutional constraints in place that act as a check on any abuse of such freedom.

Clearly, these internally inconsistent rules need to be re-examined, if not thrown out altogether.

Knight is having none of it, and accuses Zaretsky of doing no more than setting up and knocking down "a giant straw man" before condemning him as a wild-eyed cultural freebooter:

Minus the office on Capitol Hill, Zaretsky is to established deaccessioning policy what former Sen. Phil Gramm was to established banking regulation — an eager enthusiast for destructive reform, either unaware of or, worse, indifferent to the general chaos that would follow. Gramm went on to become a super-rich executive with a Swiss bank, but how's that banking deregulation thing been working out for you lately?

Christopher Knight's art writing belongs on the very short list of things that the much-abused Los Angeles Times still has left to be proud of these days.  That said, it is a disappointment to see that he has himself largely succumbed to argumentum ad strawmanum when he isn't stooping to outright argumentum ad hominem, dismissing both Zaretsky ("Such is the nature of routine blogging") and Art in America ("The magazine had a shakeup in its editorial ranks last year, but if this is the best they can do . . . , it was apparently a wasted effort") with little more than an imperious wave rather than really engaging his opponent on substance.  

The core notion that there is some quasi-fiduciary relationship between museums and the public, that if art is not literally held "in trust" it should nevertheless be managed in a manner that will provide the greatest possible benefit (and access) to the broadest possible swath of that public, is not really in dispute.  The question is more what sorts of decisions that notion should permit.

Donn Zaretsky -- who can take some satisfaction, I suppose, from Knight's suggestion that there is a faction of "Zaretskians" among the managers of the nation's museums -- objects less to the concept of "the public trust" than to that concept being used as a great "Thou Shalt Not" to shackle all but a very limited class of deaccessions and dispositions.  Where Zaretsky sees imprisonment and an unreasonable restriction of curatorial freedom of choice, Knight and AAMD see a sort of protective custody, a binding of administrators' hands for their own good, to save them from their own worst instincts, or to serve a perceived Greater Good. Zaretsky would trust museum managers to exercise sound judgment, Knight and company would prefer that judgment to be exercised only within strictly proscribed limits.  The "correct" answer lies somewhere between them or perhaps exists only in theory or not at all.  I suggest we all go to our local museum of choice and think it through some more.

~~~

UPDATE [1724 PDT]:  Donn Zaretsky responds to Christopher Knight's post.

UPDATE 2 [040809 0804 PDT]:  Tyler Green of Modern Art Notes -- who, like Christopher Knight, has a spot near the top of my personal list of arts writers I follow and admire -- weighs in on the contra-Zaretsky side, with gusto.

UPDATE 3 [040809 0822 PDT]:  Donn Zaretsky, no surprise, fires back.  (Shameless self-interest alert: Zaretsky begins his riposte by quoting this post, and suggests that Decs&Excs has provided a "reasonable summary of the competing positions."  Heaven knows, we try.)  

Thanks as well to Walter Olson for his link from PointofLaw Forum.  

~~~

Photo: "NYC - Metropolitan Museum of Art Armors for Man and Horse" by Flickr user wallyg, used under Creative Commons license.

~~~

The Courthouse with a Heart Full of Sol

The intersection of art and law has been a recurring topic here at Decs&Excs, especially when one declines to yield the right of way to the other.  One subset of that topic has been courthouses of artistic or architectural interest.  See, e.g., here or here.

The newish federal courthouse in Springfield, Massachusetts, boasts a highly respectable architectural pedigree.  The principal architect is Moshe Safdie, perhaps best known for Habitat, the apartment building he constructed for Montreal's Expo '67 by literally stacking modular residential units on and around one another.  Better yet, as Los Angeles Times art critic Christopher Knight reports online today,the Springfield courthouse is home to an important -- and large -- piece of contemporary art.

The late Sol LeWitt (1928 - 2007) worked in many media and is associated with both the Minimalist and Conceptualist strains of contemporary art.  Those strains meld in LeWitt's large body of "Wall Drawings."  As their name suggests, LeWitt's wall drawings are drawn (or painted or otherwise applied) on walls of existing buildings.  LeWitt rarely executed the drawings himself.  Instead, the artist's creative contribution was to devise the detailed sets of instructions that others would follow, with or without Lewitt's supervison, to bring each drawing into the material world.  The wall drawings, in other words, exist principally as sets of instructions for their own creation.  The idea of the drawing is the drawing.  This is the sort of thing that some of us like very much and that others point to as Exhibit "A" in support of their "Motion to Strike All Contemporary 'Art' as a Sham, a Frolic, and a Banter."

The wall drawing in the Springfield courthouse is one of the last LeWitt created.  "Wall Drawing No. 1259: Loopy Doopy (Springfield)" is 300 feet long, covering the entire length of the third floor and enveloping the entrances to four courtrooms.  Christopher Knight writes:

In the last decade or so of his life, LeWitt made a number of drawings by ... 

... taping together two pencils and rolling them through his fingers and twisting his wrist as he moved across the page. That became the template for the mural.

The energy of the piece derives from the way it negotiates the crazy play of its linear twists and turns with the strict rationality of the architectural setting.  (The building was designed by Boston architect Moshe Safdie.)  On a black acrylic ground, the wide white lines seem to emerge from the surrounding white-walled interior, which merges a rectilinear grid with a compound curve.  Buildings can be eccentric, but they must also subscribe to the logic of structural codes -- which an artist can happily ignore.  The loopy-doopy drawing, flooded with natural light from the building's glass facade and skylights directly above, takes that fundamental difference and runs with it.

He even provides video, walking the full length of the third floor corridor:

As public art goes, this is top flight.  I cannot speak for attorneys who actually have to practice in its presence, but I suspect that if I found myself in Springfield, Massachusetts, waiting to make an argument in one of those courtrooms, the contemplation of all those loops and doops would be just what I would want to get my head on straight.  Other advocates' mileage may vary.

~~~

For Extra Credit: Since last November, and for the next couple of decades, the Massachusetts Museum of Contemporary Art [Mass MOCA] will be home to the world's largest assemblage of executed LeWitt wall drawings: 105 of them, to be exact.  This Mass MOCA video looks in depth at the variety of the drawings and at the processes involved in fulfilling the artist's instructions.  In some sense, these works are not so much art as they are repetitive motion injuries waiting to happen:

~~~

Your Government has created a lavishly illustrated brochure [PDF] about the Springfield Courthouse, its architecture and art.  The photo at top has been excerpted from that publication.  A gallery of photos of the building, including one more of the LeWitt, is accessible on the Court's site.

~~~

12 Artsy Men

Perhaps you have heard of juried art exhibitions, but what about jurors' art exhibitions?

Anne Reed's sterling Deliberations -- the home of Blawg Review #127, which was among Decs&Excs' nominees for 2007 Blawg Review of the Year -- is devoted to the care and feeding of juries and jurors.  Anne recognizes that while jurors are often treated as fungible cogs in the rickety gearbox of justice, they are also Real Live Humans with histories, hopes, dreams and talents.  As a token of that recognition, Anne hosts

• The American Gallery of Juror Art,

"Deliberations' own gallery of art done by actual jurors while on actual jury duty." 

Rights to most of the work on display in the Gallery have been reserved by the artists, so I won't reproduce any exemplars here.  Go, ramble the virtual corridors and see for yourselves.

~~~

Link to the Gallery via the invaluable arts blog, C-MONSTER.net.

Photo: "Jury Duty Waiting Lounge," by Flickr user sgarcia, used under Creative Commons license.  Unless I miss my guess, the lounge depicted is in the Stanley Mosk Courthouse in downtown Los Angeles.  The clock on the wall shows 4:30 p.m. fast appoaching, so these Real Live Human Jurors were nearing the end of their suffering on our behalf.  Thank them, won't you?

Tie Goes to the Dumpster

Los Angeles is better known for tight abs and botox than it is for tuxes and bow ties -- but we were supposed to have had a truly Enormous sculptured bow tie to festoon a space in front of the Disney Hall.  To be created by Claes Oldenburg and Coosje Van Bruggen, "Collar and Bow" was to have been erected in 2004 and was to have looked something like this:

In July of 2006, when I wrote about it here, the project was well behind schedule and plagued by technical difficulties.  Today, that space in front of the Hall remains unoccupied and pedestrians can still pass without fear of being crushed by falling neckwear.  The Tie exists, but it rests in a storage yard in Irvine and looks like this:

The Tie in Exile -- Los Angeles Times photo by Don Bartletti

In the past year, as reported on the front page of today's Los Angeles Times, "Collar and Bow" has gone from highly public art work to the subject of a highly public lawsuit against the artists, designers and fabricators involved in its making and unmaking:

The damages, Music Center attorney David Lira said this week, come to more than $6 million, including payments for the sculpture, additional money for consultants and $600,000 that the Music Center plowed fruitlessly into reinforcing the sidewalk in front of the Frank Gehry-designed hall at 1st Street and Grand Avenue so the ground could support the heavy steel objects that never arrived.

Like the Tower of Babel and other unfinished works, "Collar and Bow" may simply have been Too Big, its creators' ambitions outstripping their ability to deliver it into the real world:

The sculpture was conceived a decade before Disney Hall's 2003 opening.  Oldenburg and Van Bruggen had been toying with the idea of a giant bow tie, and their friend Gehry thought that a swanky collar and tie, looking as if they had been tossed on the sidewalk by some colossus, would sound a playfully artful keynote for concertgoers and passersby.

The architect suggested increasing the sculptors' initial 35-foot-high design to 65 feet.  In May 2003, the Music Center contracted with Oldenburg and Van Bruggen's company, Storebridge, to create "Collar and Bow" for $2.2 million and deliver it by Aug. 15, 2004.  Donations of $1.85 million from Music Center patrons Richard and Geri Brawerman and $1 million from the J. Paul Getty Trust were expected to cover the cost.

The illustration at the top of this post of the sculpture in place comes from the website of one of the defendants, Westerly Marine, which provides this description of its fabrication:

The monumental artwork is made of aluminum, structural steel, stainless steel, then bonded with epoxy film, vacuum bagged and cured.  The final finish will be painted with polyurethane enamel.

Although he was instrumental in starting the project and in expanding it to its gargantuan final scale, Frank Gehry is not a party to the "Collar and Bow" litigation.  He is, however, the target of a lawsuit on the other side of the country, relating to MIT's allegedly leaky Stata Center buildings.  The Disney Hall itself has not been without practical problems: one side of the building had to be sandblasted after completion because Gehry's signature highly reflective steel cladding threatened to roast the neighbors.

Filed last February, the "Collar and Bow" case is now scheduled for trial in Los Angeles Superior Court in mid-October.

For a last look at what might have been -- for better or worse -- here is a pristine 1:16 scale model of the work that was on offer in 2007 at London's Waddington Galleries:

[Cross-posted to a fool in the forest.]

Bless His Pointed Little Head Monuments

New Horizons in Intellectual Property Law

Lee Rosenbaum's CultureGrrl weblog links an intriguing Guardian report: "Egypt to copyright the pyramids and antiquities":

Egypt is planning to pass a law that would exact royalty payments from anyone found making copies of the country's ancient monuments or museum pieces, including the pyramids.

Zahi Hawass, head of Egypt's Supreme Council of Antiquities, said his country wanted to own the copyright to its historic monuments and would use any money raised to pay for the upkeep of its most prestigious sites.

Hawass, an outspoken figure in the usually cautious world of antiquities, said the law had been agreed by a ministerial committee and would go before parliament, where it was expected to be passed easily.  It would then apply anywhere in the world, he said.

* * *

His comments came only a few days after an Egyptian opposition newspaper, Al-Wafd, published a report complaining that many more tourists each year travelled to the pyramid-shaped Luxor hotel in Las Vegas than to Luxor itself.  The newspaper proposed that the US hotel should pay some of its profits to Luxor city.

Decs&Excs looks forward to any comment that may be forthcoming from Donn Zaretsky's Art Law Blog. 

In the meantime, TIME Magazine's Richard Lacayo offers a precis of architectural copyright and the particular problem posed by structures with Origins Lost in the Mists of Antiquity:

My question: Can you copyright ancient monuments that have no known architect?  The Berne Convention for the Protection of Literary and Artistic Works provides a mechanism to extend protection to the 'authors' of works of architecture.  Some sculptural monuments by identifiable artists have copyrights.  The Statue of Liberty — by Frederic Auguste Bartholdi — has had one since 1876, ten years before it was dedicated in New York Harbor.  And though the Eiffel Tower has been in the public domain for years, its night time image is not.  Its decorative electric light display is copyrighted, which effectively copyrights the tower at night, so commercial photographers have to pay a fee to take its picture once the lights are on.

~~~

Cover image of Pyramid Power: The Millennium Science via Earthpulse Press -- where you can still purchase this million-selling 1973 classic that was "decades ahead in presenting many ideas in science which are now embedded into our consciousness."

Coming Soon to the Albert Hall . . .

More DANGEROUS ART!

Item 1:

From New York Magazine, a description of You by Urs Fischer, now on view in Manhattan at Gavin Brown's enterprise gallery:

A 38-foot-by-30-foot crater, eight feet deep, extends almost to the walls of the gallery, surrounded by a fourteen-inch ledge of concrete floor.  A sign at the door cautions, THE INSTALLATION IS PHYSICALLY DANGEROUS AND INHERENTLY INVOLVES THE RISK OF SERIOUS INJURY OR DEATH; intrepid viewers can, all the same, inch their way around the hole.

Item 2:

Apropos of yesterday's post on Tate Modern's cracking Shibboleth, some thoughts from the weblog of New York gallery owner Edward Winkleman:

Twice in our gallery's history we've exhibited work that, if the viewer were unfortunate or not careful, they might have hurt themselves on.  Once the situation was easy enough to handle (a warning on the door), but the other time, the work was interactive and no matter how explicit our warnings, folks still seemed to find a way to interact in a dangerous manner.  It became a running joke...the increasingly alarming notices...leading us to ponder whether "Do Not Under Any Circumstances Even Consider Moving or Breathing While Interacting With This Art" would do the trick.

I came away from that experience realizing that some work is simply too dangerous to let the public interact with without strict supervision.  With this lesson under my belt, then, I was a bit surprised to see the openness with which visitors were able to roam the Turbine Hall at the Tate Modern . . . .  I mean, I get it conceptually, just not liability-wise.

Conclusion:

Brings a [w]hole new meaning to the phrase "Fall Art Season," eh?

~~~

New York link via 3quarksdaily.  Winkleman link via The Art Law Blog.

Crack of Doom

And now, another episode of DANGEROUS ART!

Now on view in the enormous Turbine Hall of London's Tate Modern museum is Colombian artist Doris Salcedo's Shibboleth, of which the curators write:

Doris Salcedo’s Shibboleth is the first work to intervene directly in the fabric of the Turbine Hall.  Rather than fill this iconic space with a conventional sculpture or installation, Salcedo has created a subterranean chasm that stretches the length of the Turbine Hall.  The concrete walls of the crevice are ruptured by a steel mesh fence, creating a tension between these elements that resist yet depend on one another.  By making the floor the principal focus of her project, Salcedo dramatically shifts our perception of the Turbine Hall’s architecture, subtly subverting its claims to monumentality and grandeur.  Shibboleth asks questions about the interaction of sculpture and space, about architecture and the values it enshrines, and about the shaky ideological foundations on which Western notions of modernity are built.

Shibboleth, to be blunt, is a Great Big Crack in the Floor.  It is a large, open and obvious crack, the sort you should not step on if you value your mother's back nor step in if you value your own.  It is there for anyone to see, plain as day.  Indeed, the entire point of Shibboleth is to be there for all to see: it's art, after all.

And yet, no matter how clearly recognizable a potential danger may be, some will inevitably fall prey to it, as reported by the Times Online:

[T]he casualties have been mounting up at Tate Modern in London, where
15 people were hurt viewing Shibboleth 2007 in the first four weeks after its opening.

Beginning as a crack, Shibboleth widens and deepens as it snakes across the gallery’s Turbine Hall, until in some places it is large enough for a toddler to fall into.  Staff have been detailed to monitor visitors wandering around the hall, but a Freedom of Information request by The Times has revealed that their efforts have not been entirely successful.

Four of the 15 accidents, some of which resulted in minor injuries, have been reported to the Health and Safety Executive.  The museum has considered using Perspex glass to cover Shibboleth 2007, which . . . runs the full 167 metres (548 feet) of the cavernous hall.

One has to feel for Dennis Ahern, the Tate's head of safety and security, who is obliged to strike a balance between respecting the nature of the work and managing the risks of injury and resulting liability claims that it poses.  As Ahern reported to his colleagues:

'With Shibboleth this hazard differs from equitable ones in that physical protection measures which would normally be applied to a gap of this nature are not deemed appropriate due to its artistic nature.'

The museum is no stranger to injurious art installations, as the Times also notes:

Tate Modern is facing four other legal claims arising from other incidents, mostly related to the giant slides that last year occupied the hall.

[Hyperlink -- to giant slides! -- added.]

All of which inspires Decs&Excs to a flight of cautionary verse, which the reader can perhaps imagine performed as a patter-song in the manner of Noel Coward or Gilbert & Sullivan:

There's a crack in the floor of the Tate;
At the Tate there's a crack in the floor:
It winds through the Hall
From the door to the wall
And it's really too big to ignore.

But some won't, as they say, "Mind the Gap."
They'll fall down and their limbs will contort.
And each injured visitor's
Chosen solicitor's
Ready to take Tate to court.

So don't say that you haven't been warned,
Should you visit the Tate Modern premises.
Artistic effusion
Can lead to contusion --
Beware! for the crack is your nemesis.

~~~

OF RELATED INTEREST:

• Original link, to this BBC report, via TIME Magazine art writer Richard Lacayo, who visited Shibboleth in October and wasn't all that impressed.

• In vaguely-related British employment law news, Emma Clarke, the "voice of the Tube" who can be heard throughout London urging travelers to "mind the gap" has been terminated for posting mock versions of such announcements on her personal website.  Perhaps she can obtain a position at Tate Modern for the remainder of Shibboleth's run.

• Decs&Excs appreciates the difference between solicitors and barristers and knows that it is the latter who would more likely take one to court.  We hope we may be forgiven for having sacrificed precise accuracy on the altar of rhyme.  This too is art, of a sort.
  

• Previously, on Dangerous Art! . . .

~~~

PHOTO CREDITS:
Upper: Tate Modern - Shibboleth, photo by mla_digital via Flickr under Creative Commons license.
Lower: Shibboleth 005 by Lucia Fernandez, via Flickr, under Creative Commons license.

Stata Me Up

Photo by Stephen Downes via Flickr, under Creative Commons license.

This is the Stata Center at the Massachusetts Institute of Technology, designed by renowned architect, Frank Gehry.  (That link leads to the site of a 2001 exhibition on Gehry at the Guggenheim Museum in New York, partially underwritten by - ahem - Enron.)

Photo by koalie, via Flickr, under Creative Commons license.

This is the Stata Center in the snow, a condition that has been known to occur in Massachusetts with almost annual frequency. 

Snow, unfortunately, does not mix as well with world-class architecture as might be hoped.  Professor Althouse points us today to a Boston Globe report on the exotic building's real world troubles:

• "MIT sues Gehry, renowned architect of daring $300m Stata Center"

Details:

The Massachusetts Institute of Technology has filed a negligence suit against world-renowned architect Frank Gehry, charging that flaws in his design of the $300 million Stata Center in Cambridge, one of the most celebrated works of architecture unveiled in years, caused leaks to spring, masonry to crack, mold to grow, and drainage to back up.

The suit says that MIT paid Los Angeles-based Gehry Partners $15 million to design the Stata Center, which was hailed by critics as innovative and eye-catching with its unconventional walls and radical angles.  But soon after its completion in spring 2004, the center's outdoor amphitheater began to crack due to drainage problems, the suit says.  Snow and ice cascaded dangerously from window boxes and other projecting roof areas, blocking emergency exits and damaging other parts of the building, according to the suit.  Mold grew on the center's brick exterior, the suit says, and there were persistent leaks throughout the building.

Not surprisingly, the architects blame the engineers who blame the contractors who blame the subcontractors and so on down the line.  And we can safely assume that everyone is busily tendering the suit to their respective insurers.

Professor Althouse applies the Socratic method:

Do you want a wild and crazy building dreamed up by an artist?  Stop and think whether all the less strange buildings look the way they do for a reason.

It takes only until the third comment for someone to invoke Frank Lloyd Wright -- whose flat-roofed buildings are notorious for their leaky qualities.  An aesthetic brief for the defense of Wright in particular and buildings-as-art in general can be found here:

Wright's attitude to his buildings, and to his clients and their use of those buildings, is best summed up in his (in)famous retort to a client who, at first, bitched to Wright about the leaks in the roof of his new house.  Said Wright, 'That's what happens when you leave a work of art out in the rain.'

True enough, but one doubts that MIT will be convinced.

~~~

UPDATE 111007:  Donn Zaretsky's Art Law Blog, no surprise, has been following the MIT-Gehry dispute closely over the past several days:

• His initial report (with much-appraciated Decs&Excs citation) is here.

• A follow-up with thoughts on "assumption of the risk" in dealing with cutting-edge architecture [cf. the Frank Lloyd Wright quotation, supra] is here.

• And most recently, he has helpfully provided a link to the MIT-Gehry Complaint.