In 1964, Joseph Beuys staged “Das Schweigen von Marcel Duchamp wird überbewertete” (The Silence of Marcel Duchamp is Overrated) in a live television broadcast. The only record that exists is a number of photographs taken by Manfred Tischer. In a recent ruling by a German court in Düsseldorf, the Stiftung Museum Schloss Moyland has been prevented from exhibiting Tischer’s photographs.

The court held that the work of performance art was copyrightable under the German Copyright Law, and that Tischer’s photographs constituted an unlawful transformation of the work in violation of Article 23. The Schloss has appealed, and argues that these photos are documentary in nature and not artistic transformations or adaptations of the original work.

Joseph’s widow had initiated legal action because she believed that the current photo exhibition misrepresented Beuys’s work. But how should works of performance art be documented and represented by museums? In spring of this year, the Museum of Modern Art in New York hosted a retrospective of performance artist Marina Abramovic. The title of the exhibit, “the Artist is Present,” suggested that a work of performance art requires the presence of the artist. However, many of Abramovic’s works were reperformed by different people. Other works on display were not performed at all, but consisted of film, photographs, objects, or sound recordings that related to the original performance. Unlike Beuys, Abramovic was actually present for one work featured in the exhibition, also called “the Artist is Present.” The artist came to the museum everyday and sat with different visitors. Each day huge crowds gathered to take pictures and the performance was broadcast over the Internet. It will be interesting to see whether or not museums in the future can display the photos and broadcasts without consent of Abramovic or her estate.

The German decision is one of first instance, and can have no legal consequence without being followed by the higher court. If the ruling is followed, in Germany or elsewhere, it could have a great impact on the visual documentation and representation of performance art.

For more on performance art, read this Financial Times article