By Dr. Gary Bagnall.
In creating, curating, transacting or regulating artworks, differentiation of specific objects or processes as artworks is integral. A work is often expected to be art, where it is already labeled as such by an ‘authority,’ perhaps the artist, a museum or gallerist. Metrics of individuation include material qualities, marks of origination or distinctive human responses to engagement. All arguments from authority alone are logically invalid, so ipso facto dismissible. Whatever the indexing criteria, this process occurs within a shared, culturally relative orthodoxy, within which art is already legally conceptualized, defined and regulated. The current orthodoxy conceives of art as ‘satisfying objects or processes’ that have originating creative marks. Artistic marks are satisfied by a metric derived from a concept of beauty or other aesthetic value. En passant, any claim to a universal artistic value is also highly problematic, especially if conceptualized as an inherited human capacity analogous to empathy or love. The orthodoxy conceives of art as formally constituted by one or more creative structural artifacts, the replication of which creates a ‘copy’ (token) of the ‘original.’ Legal ownership of an original generates enforceable interests in both original and copies. This process facilitates commodification and transferability of works for value through an art market. Legal commodification being the de facto criterion of artistic individuation, not artistic value.
This orthodox concept of ‘art as artifact’ is culturally acquired as well as legally and fiscally reinforced, but it is not the only possible explanation for artistic phenomena as assumed nor the richest heuristically. It is a default cultural convention. At the other extreme, concepts of art could all be incommensurable, thereby excluding any shared metric of artfulness. Although, if true, the orthodox claim to legal recognition of universal artistic marks cannot then be correct and art is whatever material objects or processes the law commodifies and labels as art. If the quality of universality is rejected, the evident coherence of actual artistic judgments about real artistic phenomena, transculturally and historically, must be accounted for. A partial explanation could be a supervening pragmatic acceptance of the prevailing legal orthodoxy of ‘art as artifact’ itself, a pragmatic congruence of shared utility with the default rather than a conceptual consensus. It is possible such congruence is better explained by reference to an altogether different, emergent unorthodox concept of art that humans have unknowingly collectively acquired. It is a concept acquired through historic human engagement of culturally diverse, real artistic phenomena as a synthetic human brain concept and one capable of being reinforced or abandoned through substitution or disuse, as occurred with the arcane Anglo-US legal concepts of ‘blasphemy’ and ‘primogeniture.’ Conceptually distinct from the default, it could well have preferential claims if empirically demonstrated to provide greater epistemic access and explanatory insight into artistic phenomena. That it does is proposed here and in the more extensive further reading.
If not reducible to unique, artistically-marked, artifactual objects or processes, what more could art be? Consider the following market transaction of a Picasso painting:
On May 11, 2015, Christie’s New York sold Lot 8A, the painting Les femmes d’Alger (Version O) by Pablo Picasso for $179,365,000. Ownership was legally transferred between private collections. What exactly transacted? The orthodox position is that property rights in an oil canvas artifact, a painted and signed (marked) object created by the artist Pablo Picasso, changed ownership. Picasso started work in 1954, inspired by Delacroix’s painting of the same name. He completed this version of Les femmes… in 1955, selling it for $212,500 (now c.$2m) through Galerie Louise Leiris in Paris. Ten other paintings in the series of variations later sold through Saidenberg Gallery, Ganz and all versions of Les femmes… were given letter identifiers. The Christie’s work was known as Version O. This artifact of unique heuristic, social context and creative history was differentiated as art, the verified signature of Picasso confirming he created the artifact. The prevailing legal framework classified the artifact as personal tangible property and therefore an exchange commodity. It was legally regulated as property, with ownership and intellectual rights recognized and enforceable. When Christie’s sold the work in 2015, the same orthodox concept of art recognized ownership of the artifact as the artwork transacted. It could be argued that what actually transacted on May 11 was a creation of both Picasso and the law conceptualized and regulated as artistic property.
Art markets require predictable regulatory frameworks across legal jurisdictions. Packaging objects and processes as legal property is integral to global corporate capitalism. Corporations, stocks, mortgages, trade marks, mutual funds, IP and digital crypto currencies are examples. Economic self-interest generates inter-jurisdictional socio-political pressure to sustain such a commodified orthodoxy, reinforcing the implicit, nowhere substantiated claim to be the universally true account of the experience of the materiality and value of artistic phenomena. That any reformulation of the concept of art necessarily impacts art markets and transactional values, current and historic, acts as a forceful deterrent to any such project. Transactionally, the orthodox argument is ultimately fiscally pragmatic rather than a comprehensive explanation of artistic phenomena that demands continuity and predictability. Conceptually, it requires further justification and invites critique.
To illustrate: The central orthodox idea of ‘innovative creative imprint’ is unproblematic for the Picasso yet strained by collective ‘school’ paintings by Titian or Warhol. Whose imprints count in addition to the two principal artists? It is further stress tested by contemporary digital creativity. If a work has a digital component, like Hockney’s iPad pictures, how are the software/hardware creative components integrated conceptually? Coders, processors and algorithms are increasingly integral components of the structure of creative artworks. What criteria identifies an element as a creatively imprinted material artifact? The idea of clearly differentiable human creators has never been a convincing or sufficient identifier, exemplified by the orthodoxy’s difficulty in regulating NFT artworks, where the digital structure and creative imprint digitally supervene on each other. Furthermore, subconcepts of different stylistic art forms continue to emerge outside the orthodoxy and prior to legal regulation. Legal regulation is characteristically reactive with respect to innovation, especially technological. In the Anglo-US analytical legal cultures—regulating through textual description—absence of comprehensive, semiotically unambiguous textual definitions impedes effective regulation. Only in civil law systems like France or Italy can lawmakers regulate generally through principle or delegated discretion. Even there, legal reform still lags conceptual development. Digital painting, performance and installation art concepts, although now recognised as artistic structures, continue to test the limits of an artifactual orthodoxy, not least with respect to their structural properties.
Finally, the orthodoxy must deny that artwork is engaged through a heuristically authentic ‘copy’ of the ‘original’ creatively marked object or process. Consider a high resolution digital image of the original Picasso above. In orthodox terms, original (type) is prioritized, here reduced to a canvas artifact. Picasso’s Les femmes… is not engaged through the digital image, which is not of type but a copy (token) thereof. A work as type simply cannot be engaged via a token. Yet this is counter to actual experience of artistic phenomena. The spatial quality, three dimensionality of technique or luminescence of the color palette cannot be engaged directly through a heuristically verifiable digital image, but they can be conceptualised. Technique remains discernible two-dimensionally, as does composition and the strong sense of color. A magnified view of the digital copy permits access to detailing and technique not possible through normal gallery engagement of the original canvas. Engagement of the Picasso digital image is therefore sufficient for significant understanding of the work as art and grounding of personal artistic judgments. The heuristic image allows direct access to the work as type. The image is not a token. The enacted engagements of the work are its tokens.
An alternative more thorough explanation to the orthodoxy can be found in the further readings infra, presented here as a credible hypothetical alternative and the best contemporary explanation and contingently true account of artistic phenomena. The method for evaluating this new perspective is simple: use it to explain engaged artistic phenomena. If it fits better as an explanatory heuristic for the sensual data experienced, it ought to be preferred to the orthodoxy. Every concept of art emerges within a distinctive cultural and theoretical context. The orthodoxy emerged within a late Enlightenment gestalt regulated within modern Anglo-US property law. The dominant ideas in contemporary literature, within which this alternative concept of art is situated, are as follows. This brief analysis demonstrates that the alternative position is grounded within contemporary scholarship, referenced in the further reading below:
- All human knowledge is conceptual, either (i) inherited (biological and permanent) or (ii) acquired (cognitively emergent and discardable)
- Art is an inherited human concept; therefore rational judgments of artistic phenomena are commensurable (shared)
- Art is a universally applicable inherited concept, a heuristic to differentiate art from non-art.
- Universally applicable, not universally true, as the set of possible artistic judgments is infinite and truths are contingent (falsifiable).
- Art is a human-action type, an engagement of artistic phenomena, where all engagements of the same work are equal as such but unequally incomplete in terms of epistemic access to the work
- Human brain concepts combined with a strong pattern instinct together scan artistic phenomena for a work’s identifying criteria, mapping its structure and unique generative heuristic
- This process perpetually (re)creates artwork through shared experience of the real phenomena
- The structure of artwork is unitary or compound with multiple artistic forms (acquired concepts), artifacts and non artifacts
- If unitary and having a single artifact, then an artwork is not reducible to that artifact
- The generative heuristic is the social and symbolic context within which the work emerges, including – but not limited to – one or more human creators
- Original and copy are both of type and both provide epistemic access to the same artwork, enacted instances of which are unequally incomplete. Tokens are the unique actions of engaging the work as type
- The concept of art that best explains personal experience of artistic real and symbolic phenomena ought to be preferred
- If preferred, the entire legal commodification process of artworks requires review in order to accommodate it
Given this theoretical context, the best explanation for artistic data is as sentiently ‘scraped’ (extracted) information from the Picasso and other artistic phenomena experienced. Art is a ‘cluster property’ of multiple material elements unified in equilibrium, whose elements cognitively integrate to form unified real phenomena, analogous to physical materials such as atoms. A unique artistic ‘structure’ is individuated by ‘indexing criteria’ (identifiers), scraped from possible artistic phenomena using the heuristic of the new concept of art as action type. The criteria are consolidated and organised within experience of all other artistic phenomena. There are no fixed identifiers for a work to be art, but there can be dominant shared indexing criteria within any cultural concept of art. Importantly, structure and heuristic (the emergent pathway) are insufficient to identify the Picasso painting as art. It must be ‘engaged,’ encountered by human senses in an action type of engagement. This sentient data is neurally processed, integrating the disparate elements of the work and its heuristic. Facts about the work are uniquely personal (incommensurable) yet make possible statements (propositional truth-candidates) about its merit as art. These are collectively justified through a shared capacity for reason within a single web of collective truth. The judgment ‘Picasso’s painting is art,’ is an inductive, fallible truth about the work, arrived through collective engagement of its structure and heuristic. This judgment is dynamic, contingent and shared. Human experience (re)creates the artwork known as Les femmes… by Picasso through infinite possible engagements. Without engagement there is no artwork, just an artifactual object or process.
This new concept of art holds type and token to both provide access to the same work as type. There are therefore infinite possible instantiations of any artwork through infinite possible human interactions with its unique structure and heuristic. All are equally of the same work, and to an unequal extent, incomplete. There are no complete or perfect instantiations. Engaging a digital image of Les femmes… is engaging the original painting as a type not as phenomenally data rich but sharing color, composition, and heuristic, but not texture and material composition of the artifactual identifier. If the physical artifact of the Picasso canvas is destroyed and a digital image (of digital integrity) survives, then the artwork Les femmes… is not destroyed, existing as an art work through possible instantiating engagement of the digital image artifact from within the original heuristic. Artifacts are only artistic if the work is collectively judged to be a work of art through shared engagement and judgment. That a work is art is a contingent truth, continually affirmed or revised through this dynamic-shared engagement.
What was traded when Christie’s sold the Picasso? Not the complete artwork, since the non-artifactual, heuristic and human engagement criteria cannot be accommodated within the orthodox legal concept of art as commodified property. What transacted were artifacts, deemed artistic artifacts through legal commodification, along with property rights. As commodified property, Picasso’s canvas is an indexing criterion for the structure Les femmes… as art work. The purchasers paid c.$180m for part – admittedly a critical part – of the artwork Les femmes…. They did not acquire ownership of the complete art work, since many of the artistic indexing criteria cannot be legal property and thereby incapable of commodification and transaction.
How is the art work actually created through engagement of an original or replica of each structure sharing its unique emergent heuristic? This is how human cognition functions, if cognition is embodied and enacted. Knowledge is conceptual brain knowledge and dominantly visual. Senses send data to our brain, which is systematized and visualized within brain concepts. These concepts are either deeply embedded, inherited (thereby fixed, not dispensable or variable) or acquired through a lifetime and therefore synthetic, non-inherited, highly adaptable and dispensable. The concept of art, like liberty, is an acquired/synthetic brain concept that makes possible the generation of truth about artworks as real, tangible, and symbolic phenomena. The concept of painting itself is also an acquired subconcept, which explains its pliable extension to new forms, such as digital paintings. Artworks are real, physical and symbolic social phenomena. They are conceptualized within the emergent synthetic brain concept, a neurological mind mapping of coherent, sentient factual data drawn from individual and shared experience of real artistic phenomena. This mind mapping individuates the works unique identifiers, enabling enactment of the heuristically distinct structure, say, of Picasso’s Les femmes… Within a dynamic action type of enactment, artifacts such as the original canvas of Les femmes… are dominant identifying criteria. As noted, artworks are enactments of heuristically distinct structures capable of an infinite set of equal, incomplete engagements. Art structurally integrates through audience, observer engagement. Multiple artworks can share common provenance and style, neurologically integrating as painting, sculpture, ceramics, et al.
The purchaser of the Picasso paid almost $180M, not for the artwork known as Les femmes… but for the canvas artifact painted by Picasso. They may or may not choose to publicly display the original canvas, although if it is to be art, they ought to. If not, a heuristically authentic digital or material image of that canvas costs little or nothing to engage and is an engagement of the work. This act of viewing engagement is part of the collective process of creating and sustaining Picasso’s masterpiece as a remarkable human artwork. The work can be appreciated, its subject, composition, technique and artistic merit evaluated. Hiding behind an unsubstantiated claim of a universal theory of ‘art as artifact,’ a transactional art market of legally regulated property rights has two options. First and most likely, the pragmatic position is affirmed and inadequacies in the default concept of art simply ignored. This avoids impacting historic transactional values but exposes the market to conceptual stress testing and critique. The second option, is to acknowledge that universally individuated complete works of art are not being transacted, only culturally significant material artifacts, the artistic value of which is universally contingent and open to review. It is accepted that artworks cannot be completely commodified, possessed and transacted as real property. The merit of this position is that since such artifacts become art through ongoing engagement they can be expected to remain extremely valuable commodities. What is problematic is how to manage what the default labels ‘copies,’ now better understood as images or replicated objects and processes of the original. They provide incomplete epistemic access to the same artwork, along with the associated material artifacts. All are constitutive of the unique artwork and their engagement is part of the process by which the work is continually (re)created. They are active engagements of the work as type. Restricting the market in so-called ‘copies’ no longer makes transactional or artistic sense. Historic commodity values will have to be revised, but the market will stabilise and reorganise itself as a more authentic representation of the actual commodities transacted. The act of creating artworks through engaging a structure of unique heuristic will replace the objectified idea of ‘art as commodity’ in the world, external to both creator and viewing public, with ‘art as shared collective experience.’ To paraphrase the author Paul Auster: the structural artifacts are objects in the world, but the art work and its heuristic are commensurable human cognitive truths about the objects. Truths which integrate the external and internal aspects of art—of artists, artifacts and enactors—unified in a perpetual collective process of artistic creation and critique.
About the Author
Dr. Bagnall, born in Northern Ireland, is an alumnus of Queen’s University, Belfast and past tenured faculty of their School of Law in Jurisprudence. A PhD in legal theory and Solicitor (NI), on moving to the U.S., he graduated from Boston University Law School LLM in American Law. A published legal theorist, his current research demonstrates that law is best explained as a synthetic artistic brain concept, not a rule system. He has extensive work experience in IPO, M&A and venture finance in London and Northern Ireland, in strategic business development for profits and non-profits, and was past Chair of the Advisory Board, New Art Center, Newton MA. Gary currently works to support Queens University’s U.S. outreach and is the New England representative of Health Innovation Research Alliance of Northern Ireland (HIRANI). He is currently U.S. advisor on business development to the Cambridge, U.K.-based Intact Digital, providing unique software obsolescence solutions within UNESCO Guidelines for the Preservation of our Digital Heritage, not least in the arts. A board member of Ireland America Science Forum, his scientific interests include cognitive and materials theory applications within law, art and the application and commercial development of scientific discovery. An amateur artist and musician, he lives with his wife Laurie Halloran, a leading life sciences consultant, in Newton MA, USA.
Bagnall, G. (2021). The Emergent Synthetic Brain Concept of Law as Action Type. Cambridge Open Engage. doi:10.33774/coe-2021-tgpg8 This content is a preprint and has not been peer-reviewed.
Bagnall, G. (2016). Law as Art. 1st ed. London: Taylor & Francis ebook. https://doi.org/10.4324/9781315250687
The above opinion was submitted by the author and published with editorial assistance from the Center for Art Law.