How do you halt the construction of a gas pipeline? This is a question that environmental activists and concerned citizens alike have been asking for decades, without any satisfactory answers. In June, ecological artist Aviva Rahmani and a group of activists just north of New York City launched “Blued Trees,” a project that attempts to stop the expansion of the Spectra Energy Algonquin Incremental Market pipeline by using an unexpected legal tool: copyright.
“Blued Trees” consists of a musical score painted (with nontoxic slurry) onto a series of trees growing on private land that lays in the path of the pipeline. (Trees elsewhere can be painted with a similar design and form part of what Rahmani calls a “Greek Chorus.”) The idea, then, is that in order to complete the pipeline expansion, Spectra would have to destroy the artwork, thus infringing on its moral rights — that is, if the government grants Rahmani her copyright. She and the activist group have enlisted a lawyer to file for it, and they are currently raising money on Indiegogo in anticipation of a long legal process (including attempting to get a preliminary injunction to stop Spectra from moving on the land).
The project is compelling because it seems equal parts plausible and impossible — almost obvious, once you’ve thought about it, yet at the same time so far-fetched. Could art really work where demonstrations, sit-ins, and countless legal battles have not? Intrigued, I emailed with Rahmani to find out more.
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Jillian Steinhauer: How did you get involved with the project?
Aviva Rahmani: Mid-February of this year, a small group of anti-fracking New York state activists reached out through a mutual colleague, artist Lillian Ball, to ask if trees could be copyrighted and if that might become part of an artwork. The activists had been inspired by the story of how artist Peter von Tiesenhausen, in Alberta, Canada, had fought natural gas pipelines by claiming that his entire ranch was a work of art. The corporations eventually withdrew from the suit before the copyright idea could be tested, and von Teisenhausen prevailed. Lillian posted the request on the ecodialog list serve, a loose international collective of ecological art practitioners I helped found in 1999. There was an online discussion about the ethics of copyrighting living species, and I had a thought about an alternative approach. My alternative thought was based on a previous work of mine, “Blue Rocks,” which had painted large boulders along a narrowed causeway over an estuary in Maine, in 2002. The paint was a slurry of nontoxic ultramarine blue and buttermilk to grow mosses. The effect in Maine was to draw attention to a tidal problem and win the interest of the USDA. The outcome was to restore 26 acres of wetlands by enlarging the causeway to allow tidal flushing. I believe the effect on wildlife was regionally significant.
JS: How did you then conceive of “Blued Trees”?
AR: I responded to the call for help and suggested that rather than copyright the trees, we might paint a pattern on the tree bark with the same slurry I’d used on the boulders in Maine — on a series of trees whose distribution would correspond aerially to a measure of a music, defined by the pipeline corridor. We then began an intense back and forth as I started to explain how that idea might be implemented and why it might work legally. I was interested in creating a large artwork that depended upon but wouldn’t compromise the habitat for its beauty, as an example of humans interacting with other species in a way that could support all life rather than death and exploitation for the benefit of a very small group of humans. The intense exchanges were about the social, political, and philosophical implications of what I suggested. The project appealed to me because, aside from the general environmental and aesthetic questions, I was just completing a PhD dissertation, “Trigger Point Theory as Aesthetic Activism,” which layered environmental sciences, technology, and studio art to identify small sites where attention could have bioregional impacts. I thought this would be a lovely test case.
JS: What does the work encompass? As I understand it, it’s not just the painted trees but the related composition, plus the larger “Greek Chorus”?
AR: “Blued Trees” was conceived synaesthetically. That is, each measure of the symphonic installation is simultaneously an aerial map of the distribution of trees that were given attention and a musical score. The overture, June 21, 2015, was a 1/3-mile-long measure of what would be a complete symphony planned for the fall solstice 2015. There is also some interest in a reprisal for the spring solstice 2016. And interest in this model is expanding internationally so the “music” is echoed in multiple locations, each time bearing relevance to the idea that we can no longer afford to use fossil fuels of any kind, in any way. The Greek Chorus are trees that have been painted with the blue sine wave in other locations, which can be protected by copyright as part of “Blued Trees,” so long as they each conform to the same design concept. Greek Chorus sites so far have included Washington, Florida, and Virginia. We are working on mapping all the locations.
JS: So, trees were turned into notes by being painted with sine waves. Can you explain how this works, i.e. how the waves on the trees translate into notes and a song?
AR: When I conceived of the measure that would be iterated, I knew it was musical as well as spatial. I have studied bel canto singing since 1999 and had a double major in electronic music and multimedia from my graduate work at CalArts, so it was natural for me to think about ambient sound for installations. When I wrote out the score, I had in mind that heavy machinery couldn’t pass through the corridor without destroying the artwork as a musical and spatial line, but I also worked on the measure with my singing teacher, Debra Vanderlinde, to be sure it was singable and evoked the right emotions. The symphony is based on an 18th-century operatic symphonic structure. The definition of a sine wave is beautifully appropriate to the topic: it is the smooth oscillation of sound in physics. In an alternative world, rather than fighting to subdue and wring the last resources from nature until we destroy the planet, we might learn to live in resilient harmony with other species.
JS: Why the color blue?
AR: Ultramarine has a long history in art. It was originally precious lapis lazuli ground from the stones to make the pigment. It is now created artificially but is still nontoxic and has a brilliance and translucence that beautifully allows us to see other surfaces below the color, whether rock, bark, or linen. Historically, it was a color reserved for royalty and to allude to heavenly spirituality. It is the color of clean skies and pure water. If we continue to use fossil fuels, we will have neither. We will have replaced life with death. Blue is an assertion of clean water and life.
JS: What’s the status of the legal proceedings now — have you filed for the work’s copyright?
AR: Patrick Reilly is our copyright lawyer for “Blued Trees,” and he completed the federal filing for the June 21, 2015, overture. He was copied on all the correspondence since February and participated in some of the theoretical discussions, which included a number of other attorneys as well. This project would explore an untested area of the law. It is a very interesting copyright filing, because the artists rights in the filed work could help establish new case law.
JS: The press release says the project “asserts the language of the Visual Artists Rights Act (VARA), for the moral rights of the art over condemnation of private land.” Can you unpack that for me? What does it mean in layman’s terms?
AR: The term “moral rights,” under the law, used in reference to artists rights, has nothing to do with religion or money. The concept refers to the rights of an author to holistic integrity in the relationship between a creation and the author of that creation. Moral rights support a boundary around an artistic creation so that the work will continue to be understood and protected as a coherent expression of an idea. Before she passed away this spring, the late Emily Caigan, with whom I’d worked for several years on the connection between my earlier feminist performance work and my work as an ecological artist, had caught that this concept of the “moral rights of the art” had never been tested under US law.
Much ecological art is site specific and, unlike conventional sculpture, cannot be moved without destroying the work. Eminent domain is a legal avenue for public entities, increasingly working with private, for-profit parties, to assert that private land can be seized for the “public good.” Many people now feel that is an abused aspect of the law, subject to malfeasance by corrupt officials and too easily applied for private profit rather than any true public good. As I asked in the short film on the “Blued Trees” overture: is seizure of private property for private profit and the proliferation of fossil fuels at the expense of the entire planet really a public good? So, in this case, corporations can only take land by destroying the ecological art. Our moral rights initiative would attempt to supersede efforts towards the condemnation and destruction of art married to place. The language of our analysis and effort is located at an untested intersection of rights, where copyright law, real estate law, and eminent domain law overlap. This is an exciting and possibly profound expansion of the rights of ecological art and ecological artists as well as a wedge into restoring sane environmental policies.
JS: Are there any precedents for this type of action that you know of?
AR: After we file copyright, our next step will be to do the legal research about previous case law. Besides the von Teisenhausen case, which is Canadian, not American law, we’ve already looked at a number of cases to consider the weakness and opportunities in each. Some of those cases determined details of how I executed the overture and have been framing the ideas. There are also precedents in Earth Justice issues that have come before international courts, particularly at the United Nations. Many of those cases have been lost on appeal because of economic pressure from the corporations. I think what is needed, as Pat has expressed it, is to win this case in the court of public opinion long before we step into a courtroom. The analogy is to the question of gay marriage, which in a short time swayed the culture long before it came to the Supreme Court.
JS: This protest, although it’s about the larger issue of abuse of eminent domain by fossil fuel corporations, focuses specifically on the Algonquin Incremental Market pipeline expansion. Why are you opposed to the pipeline?
AR: We began with the 124 miles of the Constitution pipeline. I still hope to do at least one measure there, but much of that land was already condemned; I can’t do “Blued Trees” on condemned land because the property owners could be thrown in jail for protesting. We then started thinking about the Algonquin because of the proximity to the Indian Point nuclear plant and New York City. I think very few residents of Westchester County, let alone New York City, are aware this is on their doorstep. I need to emphasize, however the distinction between what “Blued Trees” is and protest, because if it were deemed protest, it would be thrown out of court. Protest can’t be copyrighted. As an extension of a NYFA-sponsored project initiated in 2009, “Gulf to Gulf,” I am very careful about my language in describing “Blued Trees.” “Gulf to Gulf” seeks to change policy about global warming. but that’s not the same as protest. I regard the legal aspects of “Blued Trees” in the long lineage of social practice and social sculpture art. It is about shaping systems, a far more complex idea than protest. The fact that it was designed for pipeline corridors is about culture jamming site specificity in the art world. I’m not just saying “no” to something — I’m suggesting another way of experiencing the world we live in, which includes environmental ethics and our legal system.
JS: I understand that the “full symphony” will be performed this October. What does that mean in practical terms? Where?
AR: If I told you that, the corporations would have a heads up, wouldn’t they? The October 4 event will be for the first movement of the symphony. There are four movements in addition to the overture. The first movement will be in sonata form, classically a dialogue between themes such as life and death. I can say that we hope it will engage multiple international sites. Several locations have already been confirmed for 1/3-mile measures in the United States: Washington, Virginia, and a new site in New York state.
And when that inevitably fails?
Oh, btw… the large corporations pushing this pipeline will destroy this artwork and either settle out of court for a pittance or keep anyone who tries to litigate over it tied up in court for years bankrupting them while not increasing the amount the corporations spend on their legal team in the slightest.
This is totally hopeless. VARA rights only apply to “works of recognized stature,” which is typically construed per market value. In addition, VARA rights have been interpreted as not applying to graffiti (at least in the absence of the permission of the owner of the structure). If this gets past a motion to dismiss, I’ll be surprised.
I don’t think that’s the problem. The article isn’t clear, but it sounds like they are using places where they do have permission of the property owner. They seem to be trying to do it on land they anticipate will be condemned by the government, but which hasn’t been yet.
I think their actual problem is that copyright law generally protects the intellectual property, not a particular performance or a media representation of the performance. It seems like cutting down these trees is akin to destroying a piece of sheet music. The property interest in the piece of paper and the copyright to the music are two different things, that may or may not be owned by the same person.
I agree that it seems pretty hopeless though.
Yes, it’s true that copyright typically protects only “intangible works,” rather than their physical manifestation in “copies” (which can be unique objects). But the Visual Artists Rights Act (codified at 17 USC 106A) creates special rights of attribution & integrity for the authors of certain “works of visual art,” and these people are relying on the VARA right of integrity, which provides certain rights to prevent the destruction or alteration of “works of visual art” which have “recognized stature.” VARA is rarely litigated, so it’s hard to predict outcomes, but I really doubt that courts would be at all sympathetic to this claim, especially given the circumstances. The easiest out would be to say the painting (?) isn’t a “work of recognized stature,” so I would expect most courts to take that route. But even in the case of recognized artists who work in living media, courts have held that VARA rights don’t apply because the instantiation of the work isn’t “fixed in a tangible medium” & therefore can’t be copyrighted (See Chapman Kelley v. Chicago Park District, No. 08-3701 (7th Cir. 2011)). In addition, courts have rejected “site-specificity” bids for VARA protection.
The only thing I recognize is the sheer ridiculousness of this effort. (Which is not surprising when I see Erik McGregor credited as a photographer.)
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