Artworks are sometimes conceived which deliberately incorporate the law as an intrinsic element in the piece or its exposition:

Christo’s Running Fence could only be realised by the artist successfully negotiating the right to place his fence-poles and curtain on land owned by other people; this was not an afterthought, but an integral part of the concept for the work itself – a physical monument to the overcoming of bureaucratic obstacles; Alan Smith’s 1512 could only be realised by the artist and his co-executors successfully establishing a valid legal vehicle for ‘entombing’ in perpetuity the sum of £1512 (the remains of the once successful Edinburgh Ceramic Workshop, which was wound up in the 1970s).

In recent times, Anna Livia Lowendahl-Atomic has developed a conceptual artwork which also requires use of the law as an intrinsic element of the piece. The work was exposed at the Uppsala Art Museum in Sweden last September, and consists of a selection of secrets that are for sale. The secrets are listed in a catalogue entitled A Selection of Interesting Secrets from Various Stages in my Life (information from [email protected]); each of the 60 secrets is numbered and priced, and comes with a brief description referring to its quality (as if it were an object, such as an antiquarian book). For example: ’36. A serious article with near fatal consequences that left the artist hanging by a thread. Good condition. 1988, London. £550.’

In the same way that non-conceptual artworks can be said to be ‘completed’ only when seen or experienced by the viewer, so with these secrets: buyers can access them only by signing a Confidentiality Agreement, promising never to tell the secret to anyone else; this document is proof that they have bought the artwork. There are other important terms and conditions of the agreement: secrets are non-returnable; payment is made up-front; and there is a disclaimer by the artist that some facts may not be wholly accurate (through faulty memory). Where secrets involve other people, steps have been taken to protect their identity. The delivery of the secret to the buyer is an experience in itself – one to be remembered but not recorded or documented. A series of instructions is given (say, a key to a locker with a train ticket and a map inside) to arrive at a place or places for disclosure. After the event, the buyer is left only with a copy of the Confidentiality Agreement and a memory of the disclosure.

The heart of the matter from the artlaw perspective is a fusion of the law of confidentiality and the law of contract. The UK law of confidentiality is the right to prevent disclosure of confidential information acquired in confidential circumstances. A good example in recent times was when Princess Diana was photographed, without her knowledge or permission, by someone who bored a hole in a wall of a private gymnasium. In other words, her workout session was private and confidential, as was how she looked and what she did there; the photographs were prevented from being published using the law of confidentiality (as well as the photographic privacy right given under UK copyright law).

The law of confidentiality is used as a normal part of business life to protect private discussion of ideas, designs, techniques or know-how which are regarded as trade secrets. Another example, commonly used, is a photographer’s model release agreement, which photographic models sign to allow the photographer specified use of the images taken – usually for a fee.

In the field of art, and especially design, creators of original visual concepts or solutions normally disclose their ideas to potential commissioners/clients at presentations. It is particularly important to do so confidentially when making a pitch, presentation or submission in competition with others – the danger being that commissioners might steal the concept, execute it themselves or engage someone else to do so.

Copyright law does protect artists’ original designs from being stolen and reproduced, but only if they have been manifest or made in a material form (say, as a sketch, drawing, model or maquette). But copyright law does not apply to protect ideas or concepts that are not put into a concrete form.

In Anna Livia’s case, her sale of secrets fits into this legal framework, and her Confidentiality Agreement firms this up between her and her buyers. However, if the information/secret contains material that was someone else’s secret, she could be breaching that other person’s legal right to confidentiality; hence her requirement of no further disclosure by the buyer.

The law of defamation (libel or slander) is always relevant to visual (as well as literary or performed) artwork. In the case of secrets, the artist’s disclosure might involve conveying information about someone whose honour, integrity or reputation would be damaged thereby. This again explains the (legal) need for non-disclosure by the buyer.

What is fascinating (from an art lawyer’s perspective) about this secrets’ project is the challenge it poses to conventional notions of intellectual properly. We normally think of the laws of copyright, design right, trademarks, patents or passing off as giving the intellectual property rights which only originators of work can merchandise and expose to the public. In this case, it is the artist’s recollection of something very private that is the commodity she seeks to take to the market and on which she (and it is hoped by her) the buyer will place financial value. She uses the ordinary laws of contract (offer and acceptance by two parties intending to create a legal relationship in a commercial context) and of confidentiality to achieve her artistic intent. The buyer of one of the artist’s secrets/pieces becomes a participant in the work, and so contributes significantly to her exploration of the truism that ‘there’s a price for everything, and everything has its price’.

Although Anna Livia’s secrets must not be revealed, it would be interesting to know whether any reader has bought one.

Readers’ letters would be welcomed – and treated in the strictest confidence, of course.

© Henry Lydiate 2001

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.