Law Professor Suggests Giving Legal Leeway to ‘Trespassory Artists’

Newswise — If someone spray paints a stunningly beautiful landscape on the side of a railroad car, is he an artist or a vandal? What about hundreds of people freezing at once in a busy train station? Is that whimsical art or interference with the public?

Those are questions that the legal system is grappling with as artists take their work further into the public domain and redefine the nature of art itself. In response, University of Iowa law professor Randall Bezanson thinks artists should be given greater legal leeway in the use of public and private space. Calling it "trespassory art," he is urging courts to interpret the law in such a way that protects artists from trespassing, nuisance and other laws and ordinances.

"Property laws make it difficult for public art to truly flourish, relegating it instead largely to museums, galleries, performance halls and buildings," said Bezanson. "These limitations affect the culture in which we live and the opportunities for creative expression in the public mind."

Bezanson said trespassory art seeks to borrow visual legitimacy from a message -- whether the message comes from a billboard or a can of vegetables -- and incorporate the message into a new message of the artist's making.

He said trespassory art requires the use of a certain public or private space because the art can be created only on that specific space, so that it takes the form of anything from modifying a billboard to milling about a store to climbing a building.

"We should open a space for art when it produces no actual harm, a place where artistic value to the public can be shown, and where justification for the trespass must be tied to the true nature of art," he said. "A place where what is done is clearly an act of art and cannot be confused with the ideas or tastes of the owner of the property."

Unfortunately, he said trespassory artists frequently run afoul of laws and ordinances that leave no exception to invade property for the creation of art. Perhaps the most noteworthy example is Spencer Tunick, who specializes in photos of thousands of nude people at once in a single place. Although his work is neither graphic nor explicit, he has been arrested several times for violating public indecency ordinances in places like Cleveland and Buffalo, NY.

Other skirt-the-law artistic movements modify billboards to make political or social statements ("McDonald's-better living through chemistry"), or put stickers of traditional artwork on containers in stores, say, a Picasso on a can of peas.

"The point of the artist is to subvert commercial space for artistic use in an attempt to disrupt the mundane commercial process with a purely artistic moment," Bezanson argues in his paper, "Trespassory Art," which will be published in a forthcoming issue of the University of Michigan Journal of Law Reform. The article was co-written with Andrew Finkelman, a UI law graduate and current assistant U.S. attorney in Washington, D.C.

Bezanson is one of the first legal scholars to explore the legal intersections of art and the constitution, and his book "Art and Freedom of Speech," which will be published in September, explores the protections afforded to artists. Bezanson said artistic expression is tricky from a legal perspective because, unlike speech and press, it's not specifically protected by the First Amendment.

"The guarantee of free speech has historically been interpreted to protect only reasoned and cognitive forms of expression," said Bezanson, whose book was published this month and is available from the University of Illinois Press (http://www.press.uillinois.edu/books/catalog/75fkm6fa9780252034435.html). "But art is frequently neither of those. It is often emotional and sensual, and does not simply make an appeal to our reason. As Plato put it, art is dangerous because it looses emotion and imagination in unpredictable ways."

Another artistic movement generating public buzz is ImprovEverywhere, which films its "exhibits" and puts them on YouTube. The group takes a whimsical approach to public art by, for instance, having hundreds of its "agents" freeze at once in Grand Central Station and hold their position for five minutes, or sending dozens of agents into a Best Buy store wearing the same blue shirts and khaki pants as the company's customer service employees.

"The Grand Central stunt created an enchanting agglomeration of movement and stillness, a high-tech version of the beauty and energy of a Kandinsky painting at the expense of the New York Metropolitan Transit Authority," Bezanson and Finkelman write. "It may have been beautiful, intriguing or just plain odd, depending on who you ask."

Bezanson said that because such art has inherent value, the courts should change the legal framework of trespassing and nuisance laws when dealing with trespassory art. He argues that courts should make room for this valuable, evolving form of artistic expression by denying the right of property holders to collect damages from trespassory artists unless the property owner can demonstrate the art caused them actual harm.

Bezanson said his idea won't give license to vandals or trespassers to cause whatever damage they want to another person's property and be free of legal liability by calling it art. He said an artist would have to demonstrate that his or her art had to be exhibited in a specific place in order to have any artistic impact for it to be declared trespassory art.

"Much of trespassory art is site specific, so that the meanings of their utterances, actions and events are affected by their local position, by the situation of which they are a part, and defined in relation to its place and position," Bezanson and Finkelman write. "Site specificity explains why alternative avenues for communication, such as parks or sidewalks, may in fact be no alternative."

For instance, he said sending several dozen ImprovEveryhere members wearing Best Buy uniforms into a Wal Mart would lack the whimsical impact of those people walking around a Best Buy. In fact, it would probably have no impact at all.

Bezanson's proposal to create this limited privilege for artists does not leave property holders without complete redress. He said that artists who damage property with their unauthorized art can be required to pay for the damage, and artists who refuse to remove their art from private property can be required to do so by the property owner.

But Bezanson believes that if no actual harm comes to the property owner, the value of the artistic statement should override the owner's property-holding rights. He admits that such an approach would be "messy and controversial," but said the impact on public art is worth the effort.

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500.