A German court has ruled that the Museum Schloss Moyland in North Rhine-Westphalia may not lawfully display a collection of its photographs of the late Joseph Beuys performing in 1964. According to The Art Newspaper, "the judge ruled that the pictures of the performance were an “incorrect deformation of the original performance” and by exhibiting them the museum had violated Beuys’ copyright." Since the performance was never filmed and no other photographs were taken, it's a wonder how the court came to the conclusion that the photographs were not true to the original performance, such conclusion and the resultant prohibition against their display also implying a piece of art historical material will be inaccessible to the public for the foreseeable future. The case highlights the problematic relationship between "documentation" and "performance" and the central issue of who controls the documentation of an artistic performance -- the artist, the photographer, the artist’s estate or the museum?
The ruling demands close scrutiny from both a factual and a legal perspective. On the one hand, the alleged facts are that Beuys granted the photographer, Tischer, permission to document the performance though no explicit authorization was given to subsequently display or publish the photographs. According to the museum's director, the late artist "always wanted photographers at his performances so his work could reach a wider audience" and it seems entirely reasonable for the museum to have assumed it was implicitly authorized to display the photographs it was expressly permitted to take. Why else would the photographs have been taken if not to be publicly displayed? The fact that the German news agency PDA has not been similarly restricted in the display of its photographs of Beuys' performances seems at odds with the ruling's purported premise: the artist's copyright (however, the (legal?) requirement of asking a late artist's estate for permission to display unpublished photographs may explain this). On the other hand, the court's expansive view of the performing artist's right not only stands in stark contrast to the "limited protection" of performing artists in other jurisdictions (as noted in a second article on the legal significance of the Beuys case) but also in light of the photographer's right to freedom of expression under the European Convention of Human Rights (by which German courts are bound). Can it really be the case that copyright under German law is so expansive as to not require the court to engage in a balancing of competing rights?