A few weeks ago, lulled into a stupor by the lazy days of summer, my family and I headed over to LACMA to kill some time before our weekly rendezvous at the neighborhood dog park. The featured installation was a retrospective by renowned conceptual artist John Baldessari, entitled “Pure Beauty.”

My favorite was “Brain/Cloud (Two Views): With Palm Tree and Seascapes.” We walked into a room on which a giant white brain was mounted on a blue wall. On the opposite wall a grainy, black and white projection of the brain was displayed. As we stood there ponderingwhat the heck this was all supposed to mean and trying to look sufficiently artsy, we didn’t realize that the brain was actually recording us on a twenty second time-delay video. Once our images popped up on the opposite wall, my seven-year-old daughter and my seven-year-old husband (in spirit if not in age) immediately began recording themselves karate punching and kicking the air, then literally ran around to the other wall and repeated the same nonsense so that, when the video played, they appeared to be fighting themselves under the watchful — um, eye? — of the brain. The room may have been empty before we arrived, but my family’s antics quickly drew an audience; even the typically stoic museum guards came over for a laugh. My family had become part of the art itself, if not the artist.

I can’t truthfully say that I absorbed the deep artistic meaning likely intended by Baldessari, but Brain/Cloud was pretty cool. And it did get me wondering about copyright (yes, I’m a geek, sue me). I would argue with as straight a face as Baldessari himself that our Battle with the Brain was, itself, a new and exciting piece of art. Just ask the guards. So whose art is it? Baldessari’s for having the idea and setting it up, or ours for portraying man’s eternal struggle against himself?

What about other instances in which the viewer participates in creating the art, or even becomes the art itself? Yoko Ono, for example, currently has a reinstallation of her “Voice Piece for Soprano” on display at New York’s MoMA. The work is “participatory art.” The “piece” essentially consists of a microphone on a stand. Museum visitors are invited to follow Ono’s posted instructions to scream into the mike; their screams are amplified and echo throughout the gallery, much to the dismay of the “ladies who lunch” trying to appreciate Monet on the fifth floor.

Incidentally, if you haven’t seen the video of Ono christening the installation by wailing for three minutes like a dying sheep giving birth — the parodies just don’t cut it anymore — I am about to make your day:


You’re welcome.

Ono says it’s a “protest song,” but is it really her song? Isn’t the creative expression here (if any is to be found) that of the individual “screamers,” while all that Ono arguably contributed was the unprotectable idea of sticking in a microphone in a room and setting people loose on it? Could she, on a copyright theory, legitimately prevent museum visitors who film their own inspired shrieks from displaying these videos as art works? Ono herself contributed the video; so would it be copyright infringement if someone else were to attempt to recreate that vigorous performance (as opposed to reproducing a fixed recording of it)?

What if that someone claimed that s/he was simply commenting on the ills of a pop culture that would embrace such absurdness as art, along the lines of “appropriation art?” Is that really any different than Andy Warhol displaying thirty identical reproductions of the iconic Mona Lisa in a six-row grid, an appropriation he claimed was intended to critique a society that favors quantity over quality? Then again, when Jeff Koons copied, in sculpture form, Art Rogers’copyrighted photo of a couple sitting on a bench holding German Shepherd puppies, a federal court held that the sculpture was an infringing derivative work, despite Koons’ claims that it was a conceptual piece designed to comment on the conspicuous consumption and greed of modern society, and thus fair use — how is that different?

And perhaps most importantly, am I going to answer any of these questions? Well, here’s a shot.

Conceptual art has long been the subject of copyright debate, and the Koons case notwithstanding, the law hasn’t yet found much to say about the subject. The problem is that, in a sense, conceptual art is about everything that copyright law is not. The genre is intended to convey an idea or concept to the perceiver. Unlike with a painting or sculpture, the concept piece doesn’t necessarily, on its face, appear to manifest any obvious creative expression. It is in the idea itself (the “concept”), not the expression, that the purported originality lies. But as our faithful readers are well awareideas are not copyrightable. Kasimir Malevich may have spent years coming up with the idea and inspiration for his “White on White,” while I spent less than a minute slapping white paint on a blank canvas and hanging it in my den. His symbolized “purity,” mine symbolized nothing at all (except, perhaps, laziness), but could you tell the difference?

Many critics struggle to find any originality at all in conceptual art works. “The Void” by French artist Yves Klein was nothing more than an empty gallery with white-painted walls. On opening night, 3,000 people reportedly crammed into the gallery to see Klein’s “invisible paintings” (you know, like certain emperors’ “invisible clothes”) and the exhibition was so popular that it is said to have drawn 200 people a day and had to be extended by a week. Surely an empty room cannot be subject to copyright protection, can it? Marcel Duchamp’s infamous “Fountain” was simply a urinal, exhibited upside down to emphasize its romantic “curves.” (I think I saw “Fountain: Revisited” by Anonymous in a dumpster outside Penn Station; hey Anonymous, if you get a cease and desist letter, give me a call.)

Artistic merit has never been a prerequisite to copyright protection, but are any of these works sufficiently “original” in a copyright sense — that is, in expression — to warrant copyright protection? When it comes to copyright law, one can seldom be sure about anything, but suffice it to say that there’s a plain white canvas on my wall, and you can probably feel free to install a free-screams-for-everyone microphone in your living room.

Of course, for some conceptual artists, copyright protection is the least of their worries. In 2001, controversial artist Damien Hirst created his conceptual installation “Party Time.” It featured cigarette butts in ashtrays, empty beer bottles, torn and stained newspapers, half-full cups of coffee, partially-eaten sandwiches and candy wrappers. UK gallery owners predicted that the work would command a price in the high six figures. Unfortunately, the night before the show opened, a janitor unwittingly threw the whole assemblage out with the evening garbage. You know what they say — one man’s trash…. Almost makes you want to scream, doesn’t it?