Law, Art and the Commons

252 Pages·2017·1.505 MB·English

by  Merima Bruncevic

Law, Art and the Commons
The concept of the cultural commons has become increasingly important
for legal studies. Within this field, however, it is a contested concept: a
sphere for creativity, democratic access and freedom of speech, but one
that denies property rights and misappropriates the public domain. In this
book, Merima Bruncevic takes up the cultural commons not merely as an
abstract notion, but in its connection to physical spaces such as museums
and libraries. A legal cultural commons can, she argues, be envisioned as a
lawscape that can quite literally be entered and engaged with. Focusing
largely on artin the context of the copyright regime, but also addressing a
number of cultural heritage issues, the book draws on the work of Deleuze
and Guattari in order to examine the realm of the commons as a potential
space for overcoming the dichotomy between the owner and the consumer
of culture. Challenging this dichotomy, it is the productive and creative
potential of law itself that is elicited through the book’s approach to the
commons as the empirical basis for a new legal framework, which is able to
accommodate a multitude of interests and values.
Merima Bruncevic is Senior Lecturer and Research Fellow based in the
Department of Law, Gothenburg University.
Space, Materiality and the Normative
Series Editors: Andreas Philippopoulos-Mihalopoulos and Christian Borch
Space, Materiality and the Normative presents new ways of thinking about the
connections between space and materiality from a normative perspective.
At the interface of law, social theory, politics, architecture, geography and
urban studies, the series is concerned with addressing the use, regulation
and experience of space and materiality, broadly understood, and in
particular with exploring their links and the challenges they raise for law,
politics and normativity.
Books in this series:
Spaces of Justice
Peripheries, Passages, Appropriations
Chris Butler and Edward Mussawir
Spacing Law and Politics
The Constitution and Representation of the Juridical
Leif Dahlberg
A Jurisprudence of Movement
Common Law, Walking, Unsettling Place
Olivia Barr
Animals, Biopolitics, Law
Lively Legalities
Irus Braverman
Spatial Justice
Body, Lawscape, Atmosphere
Andreas Philippopoulos-Mihalopoulos
Urban Commons
Rethinking the City
Christian Borch and Martin Kornberger
www.routledge.com/Space-Materiality-and-the-Normative/book-series/SMNORM
Law, Art and the Commons
Merima Bruncevic
First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
a GlassHouse book
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 Merima Bruncevic
The right of Merima Bruncevic to be identified as author of this work has
been asserted by her in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from
the publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identification and explanation without intent
to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Bruncevic, Merima, author.
Title: Law, art and the commons / Merima Bruncevic.
Description: Space, materiality and the normative. | Abingdon, Oxon ; New York, NY :
Routledge, 2018. | Based on author's thesis (doctoral - Gèoteborgs universitet, 2014)
issued under title: Fixing the shadows : access to art and the legal concept of the cultural
commons. | Includes bibliographical references and index.
Identifiers: LCCN 2017023443 | ISBN 9781138697546 (hardback)
Subjects: LCSH: Culture and law. | Law and art. | Intellectual property. | Deleuze, Gilles,
1925-1995--Influence. | Guattari, Fâelix, 1930-1992--Influence.
Classification: LCC K487.C8 B78 2018 | DDC 344/.097--dc23
LC record available at https://lccn.loc.gov/2017023443
ISBN: 978-1-138-69754-6 (hbk)
ISBN: 978-1-315-52141-1 (ebk)
Typeset in Baskerville
by Fish Books Ltd.
Contents
Acknowledgements vii
Preface viii
Volume I: (Re)Imaginations 1
PART 1
Law 3
1 Enter: from landscape to lawscape 5
1.1 A walk in the commons 5
1.2 Landscape/lawscape 7
1.3 Atmosphere 13
2 Rhizomatic jurisprudence: terra firma and terra incognita 16
2.1 Deleuze and Guattari 16
2.2 Resolving the opposites: … and law 19
2.3 Lawscape: … in law 34
PART 2
Art 49
3 Artwork: from object to hyperobject 51
3.1 Rhizome 1: viscous 54
3.2 Rhizome 2: nonlocal 58
3.3 Rhizome 3: temporal undulation 62
3.4 Rhizome 4: phasing 66
3.5 Rhizome 5: interobjectivity 69
vi Contents
4 Case studies: the contested spaces 74
4.1 Bruno Schulz and lost art 74
4.2 Wikimedia Commons and art in public spaces 88
4.3 Richard Prince and art on Instagram 98
Intermezzo 111
Volume II: (Re)Constructions 117
PART 3
Commons 119
5 Commons: being(s)-in-common 121
5.1 Property 121
5.2 Space 129
5.3 Commons 137
6 Intellectual property law: commons and schizophrenic
capitalism 150
6.1 The global aspect: TRIPS 151
6.2 Schizophrenia: intellectual property v. capitalism 155
6.3 Embodiment: content v. container 163
PART 4
Legal Commons 175
7 Ownership: possessed 177
7.1 The Deleuzian forms of possession 178
7.2 The res issues 183
7.3 Possession and commons 187
8 Exit: atmosphere 206
8.1 Visualising the lawscape: cultural commons as
an e-scape 207
8.2 Cultural commons in times of crisis: an ecology 212
8.3 Not one but several ecologies: on an apocalyptic
note 215
Bibliography 219
Index 229
Acknowledgements
Thank you Colin Perrin, and Routledge, for giving me the opportunity to
write this book the way I envisioned it.
Thank you Andreas Philippopoulos-Mihalopoulos, for seeing that it
could be part of the Space, Materiality and the Normative series, and for all
your work that has been so inspiring not just to me, but to so many of us.
Thank you Fiona Macmillan, for being a wonderful mentor and role
model, and for inviting me to Rome and Roma Tre where most of this book
was written.
Thank you Håkan Gustafsson, for opening up the world of legal philo -
sophy to me, from that very first lecture on Frankfurt School, to your
supervision during my doctoral studies, through to this day, without you, I
would not be here.
Thank you Jannice Käll, for being my friend, colleague and collaborator
that resolutely and always stands next to me.
Thank you Department of Law, Gothenburg University, for being such
an encouraging academic environment.
Thank you students, for keeping me on my toes.
Thank you Gothenburg, Rome, Paris, for the spaces of existence.
Thank you art and culture for being entangled with me and for giving
me reason to breathe.
Thank you friends, for walking with me.
Thank you family and loved ones, for being the stable foundation that
even a nomad needs.
Götaplatsen, Gothenburg
7 April 2017
Preface
Drank the kool-aid?
The summer is withdrawing. We have just arrived in London. We have four
hourshere before we need to get to Heathrow to catch our flight that is taking
us back to Gothenburg. We took the high-speed Southeastern train in the
morn ing from Canterbury West to Charing Cross. The train was late, but inci -
dentally we were on time. We have only four hours and the clock starts – now.
Atmosphere
Change of seasons
Affect
Transportation and movement
Across territories
Time
There are five of us. We have a plan, to go on a London walk, a walk that
begins in Trafalgar Square and ends in front of Birkbeck College. We have
just left the Critical Legal Conference held at Kent University (the year is
2016, it was the conference’s 20th anniversary). Some of the “sights” on our
planned walk include Westminster Law School on Little Titchfield St. and
Birkbeck College (the Mecca of critical legal thinking in Europe as
someone at the CLC had referred to it).
Familiar
Uncanny
Networks
We begin by walking from Charing Cross to Trafalgar Square. From there, I
thought, we will be able to see Nelson’s Column, Big Ben, the Houses of
Parliament and the National Gallery all at once. But what will it mean to see?1
Besides, we can only stay five minutes if we want to make the full walk.
1 For a general view on law and senses see The Westminster Online Working Papers Non
Liquet: https://nonliquetlaw.wordpress.com/
Preface ix
So we walk briskly and reach Trafalgar Square rather quickly. When strate-
gically placed we can indeed see all sights, simultaneously. Standing on the
steps in front of the National Gallery we become entangled with the atmo -
sphere of the place, with the London traffic, with the noises of buses, the
excitement of tourists, the concentration of the street performers, the
frustration of Londoners trying to get on with their Sunday plans… It is
intoxicating. To seeturns out to mean to enter this open space and tobecome
entangled with the bodies that are there, to become other, to see means
engaging all our sensorial perceptions at once. We take some photos, we
point to some landmarks, we catch some Pokémons on the go. Then we
leave. Did I mention? We are in a hurry. Three and a half hours left.
Landmarks
Spaces of culture
Museums
Entanglement
Bodies
Digital platforms
We walk up Charing Cross Road, through China Town (where Jannice
quips: “This almost feels like Singapore, with the British and the Asian
blended!”), we cross Shaftsbury Avenue, walk across Soho (we walk past
those gentrified sex shops and commercial massage parlours that are more
boring than they are subversive). As we are walking I am telling whomever
happens to be walking next to me about my own memories from living in
London: “I used to work in this shoe shop when I was a student,” “Curzon
Soho is one of my favourite cinemas in the world.” Three hours left.
Hybrid spaces
Sexuality
Identity
Memory
We reach Carnaby Street, and the discussion inevitably turns to the
Swinging 60s. The era that once defined London still seems to be an
indispensable part of the London brand or perhaps more so of its heritage.
Then we walk to Piccadilly Circus – a circus, but not one in a traditional
sense – a circular view and a focal point of traffic, information, sounds,
smells, people, vehicles and spaces. We walk up Regent Street towards
Oxford Circus. Kristina is not feeling well, it has been a long week, she has
delivered her first conference presentation. The paper she presented was
entitled “The court as the narrator: narrative strategies in the construction
of children as legal subjects”. The presentation was a success, but now, as
with most of us after a significant conference presentation, her energy